Answer ... Under Swiss law, these offences occur when the offender (corrupting party) offers, promises or gives an undue advantage to a member of a judicial or other authority, a public official, an officially appointed expert, translator or interpreter, an arbitrator, a member of the armed forces or a third party (corrupted party), with the aim of causing that public official to carry out or fail to carry out an act in connection with his or her official activity which is contrary to his or her duty or dependent on his or her discretion.
If an individual completes an action that fulfils all of the above elements of the definition, he or she may be punished under Swiss law by imprisonment not exceeding five years or a monetary penalty (Article 322ter of the Swiss Criminal Code (SCC)).
Swiss law furthermore prohibits the receipt of bribes –so-called ‘passive corruption’ (Article 322quater of the SCC); the respective sentencing framework is the same as for active corruption.
Answer ... The term ‘public official’ can also refer to functional or formal public officials. A functional public official is an individual who is a member of an organisation performing official duties (regardless of whether the organisation is a public authority). Therefore, it is possible that an employee of a state-owned or state-controlled company is also a public official. A formal public official is an individual who is a member of a state organisation.
Private individuals may qualify as public officials if they pursue (at least de facto) an official activity (Article 322decies, para 2 of the SCC). They are subject to the same provisions as public officials if they fulfil official duties. Such persons act instead of the state or at least have direct influence on decisions taken by the state.
‘Foreign public officials’ under Article 322septies of the SCC are persons who conform to the same definition as a Swiss ‘public official’ and perform such functions for a foreign state, authority or organisation.
Answer ... In case of private corruption, the offender offers, promises or gives an undue advantage to an employee, partner, agent or any other auxiliary of a third party in the private sector in order to cause that person to carry out or to fail to carry out an act in connection with his or her activities in the private company which is contrary to his or her duty or dependent on his or her discretion.
Private corruption is punishable under Article 322octies (active private bribery) and Article 322novies (passive private bribery) of the SCC.
Answer ... A ‘bribe’ is defined as an ‘undue advantage’ with the purpose of causing the corrupted party to carry out or to fail to carry out an act in connection with his or her official activities which is contrary to his or her duty or dependent on his or her discretion. With regard to gifts, it is sometimes difficult to distinguish between acts of gratitude or the offering of an undue advantage (ie, a bribe). In general, advantages of a negligible value which are seen as common social practice are not deemed to be undue (Article 322decies, para 1 lit b of the SCC). Therefore, under certain circumstances a minor benefit can also qualify as a bribe if it is not a common social practice to offer it. As long as an advantage is intended to influence the recipient’s behaviour relating to his or her official duties, it is considered to be undue.
However, Swiss law lacks a clear benchmark of negligibility. Case law and legal authors have concluded that a bottle of ‘inexpensive’ wine may be accepted as a Christmas present, but that a number of lunch invitations worth over CHF 5,000 constituted an undue advantage. For example, legal doctrine holds that a bouquet of flowers is not an undue advantage. Thus, in summary, a specific benefit granted to an individual must be assessed on a case-by-case basis to analyse whether it is acceptable under the law of corruption. Most major corporates in Switzerland have implemented guidelines, rules and directives as to what they deem acceptable for employees and what they consider excessive and therefore undue. A threshold is often set at a value of CHF 100.
Advantages which are contractually approved by a third party cannot be bribes (Article 322decies, para 1 lit a of the SCC).
Answer ... In certain cases corruption can also be punishable as criminal mismanagement (Article 158 of the SCC). A person is liable to imprisonment or to a monetary fine if he or she causes or permits another person to sustain financial loss. The infringer must be entrusted with the management of the property of another or with the supervision of such management. The entrustment may be by law, by official order, by a legal transaction or by grant of authorisation. Financial loss is created in the course of and in breach of his or her duties. The same sanctions apply to persons who in fact are acting on behalf of a business, even if without a specific mandate.
In addition, there are provisions in the SCC on infringement of accounting and bookkeeping rules. For example, Article 166 of the SCC sanctions failure to keep proper accounts if bankruptcy proceedings are commenced against the offender or if a certificate of unsatisfied claims has been issued with regard to him or her. If a company fails to account properly, this is to be considered a failure to take proper organisational measures. Even if no bankruptcy or default is declared, Article 325 of the SCC stipulates liability for failure to comply with accounting rules and sanctions the offender with fines. Moreover, the Swiss Code of Obligations imposes civil liability if, for example, accounting duties are not complied with. Therefore, it is fair to say that civil liability goes hand in hand with criminal liability, in particular when falsification of accounting documents is involved. Article 251 of the SCC sanctions the production and use of forged documents with a view to causing financial loss or damage or in order to obtain an unlawful advantage.
Answer ... As a rule, companies are not subject to criminal liability. However, there is criminal liability of companies in two cases.
First, Article 102 of the SCC stipulates the liability of legal entities if:
- the offence is committed by an individual in the company in the exercise of his or her commercial activities; and
- it is impossible to attribute the misconduct to any specific individual due to the inadequate organisation of the company.
In this case, the criminal act is attributed to the company, which is liable to a fine not exceeding CHF 5 million (Article 102, para 1 of the SCC). To determine the actual fine, the judge will consider:
- the seriousness of the offence;
- the extent of the organisational failures;
- the loss or damage caused by the offence; and
- the economic ability of the failing company.
Second, in cases where Article 322ter, 322quinquies, 322septies, para 1 or 322octies of the SCC applies, the failing legal entity is liable irrespective of the criminal liability of any individual, provided that the company has failed to take all reasonable organisational measures that are required in order to prevent the respective offence. The company may in such cases be held liable because it did not take all necessary measures to prevent an offence from being committed by an employee (Article 102, para 2 of the SCC).
Answer ... Article 102, paras 1 and 2 of the SCC are applicable to any legal entity, with the exception of public authorities (because Swiss law uses the term ‘undertaking’ as a generic term). Therefore, foreign companies are also liable if they fail to take all necessary and reasonable compliance measures to prevent bribery of both Swiss and foreign public officials by their employees.
However, in such cross-border cases, foreign companies are subject to Swiss law only if the offence was committed in Switzerland or if the failure to take all reasonable organisational measures took place in Switzerland. The company’s headquarters need not necessarily be in Switzerland. Another possible nexus to Switzerland that could lead to Swiss jurisdiction is where bribery payments are transferred through Swiss bank accounts.
If a crime is committed in Switzerland, the SCC is applicable, but the principle ‘ne bis in idem’ must be respected if the company has already been prosecuted in another country for the same facts (Article 3 of the SCC). It is prohibited to sanction a company several times for the same conduct. The same is true for individuals.
Answer ... As a rule, Swiss anti-corruption legislation has no special extraterritorial effects. However, the general rules on the applicability of the Swiss SCC apply – in particular, Articles 6 and 7.
According to Article 6, the SCC applies if the following criteria are cumulatively met:
- Switzerland is obliged to prosecute the felony or misdemeanour under an international convention;
- The act is also liable to prosecution at the place of commission or no criminal law jurisdiction applies at the place of commission; and
- The person concerned is in Switzerland and will not be extradited to the foreign country.
According to Article 7 of the SCC, an individual is subject to the SCC if:
- the offence is also liable to prosecution at the place of commission or no criminal law jurisdiction applies at the place of commission;
- the person concerned resides in Switzerland or is being extradited to Switzerland due to the offence; and
- extradition is permitted under Swiss law for the offence, but the person concerned is not being extradited.