Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

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4. Results: Answers
Anti-Corruption & Bribery
Can companies that voluntarily report anti-corruption violations or cooperate with investigations benefit from leniency in your jurisdiction?

Answer ... Swiss law has no special mechanism providing leniency for self-reporting. However, a company is strongly recommended to voluntarily report and closely cooperate with the authorities should it become aware of anti-corruption violations in its organisation. From experience, we believe that the company is likely to benefit from cooperative and honest conduct. Moreover, it may benefit from Article 53 of the SCC, which allows a competent court to reduce monetary sanctions by considering the company’s cooperation. If the company has made reparation for the loss, damage or injury, or has made every reasonable effort to right the wrong that it has caused, the competent authority may refrain from prosecuting or sanctioning it if the requirements for a suspended sentence are met and the interests of the general public and the persons harmed in prosecution are negligible. In such cases, the company commonly pays a reasonable amount of money to a charity project as a reparation.

Self-reporting is possible only for as long as the Office of the Attorney General does not suspect or know of illegal conduct of a company. The obvious reason for this is that it would be incomprehensible if a company could shield itself from criminal proceedings after getting caught merely by admitting what is already clear or at least assumed.

For more information about this answer please contact: Thomas A. Frick from Niederer Kraft Frey AG
Can the existence of an anti-corruption compliance programme constitute a defence to charges of anti-corruption violations?

Answer ... As companies can be held liable if they do not take all reasonable organisational measures that are required in order to prevent an offence of bribery under the Swiss Criminal Code (SCC), it is recommended that companies incorporate and enforce compliance measures as a precautionary defence to corporate liability and to mitigate the risk of criminal liability as far as possible. The court is not obliged to take such measures into account, in particular if it finds that compliance measures were not properly implemented. But if the measures were suitable and properly implemented, it is possible that the company may not incur criminal liability. Common measures in this regard include internal guidelines and codes of conduct, training of employees and the establishment of whistleblowing hotlines. economiesuisse has published the Swiss Code of Best Practice for Corporate Governance to provide recommendations and guidance for corporations.

For more information about this answer please contact: Thomas A. Frick from Niederer Kraft Frey AG
What other defences are available to companies charged with anti-corruption violations?

Answer ... A company can prove that all organisational measures were implemented and enforced, as and when necessary, in order to prevent violations of the law, even though this may obviously not have worked in the case at hand (Article 102, para 2 of the SCC).

For more information about this answer please contact: Thomas A. Frick from Niederer Kraft Frey AG
Can companies negotiate a pre-trial settlement through plea bargaining, settlement agreements or similar?

Answer ... According to Articles 358 and following of the Swiss Criminal Procedure Code (SCPC), both individuals and companies can ask the prosecutor to conduct accelerated proceedings. In return, the accused must admit the matters essential to the legal appraisal of the case and recognise – if only in principle and where applicable – the civil claims. The plea bargain finally needs approval by a court in a summary trial. By so acting, the accused can avoid lengthy trial proceedings. In such case the court will issue a judgment that sets out the offences, sanctions and civil claims contained in the indictment to which the parties have consented. Such consent is irrevocable. If the settlement agreement fails for any reason (eg, the court does not approve it), all evidence must be discarded and a new ordinary criminal procedure must be opened involving a new prosecutor.

Another possibility is the so-called summary penalty order procedure. According to Articles 352 and following of the SCPC, no court trial is involved. The requirements are rather strict. The accused must accept liability for the offence, or his or her responsibility must otherwise be sufficiently established. The sentence must not exceed a fine of CHF 540,000 (Article 34, para 2 of the SCC) or imprisonment for more than six months.

For more information about this answer please contact: Thomas A. Frick from Niederer Kraft Frey AG
What penalties can be imposed for violations of the anti-corruption legislation? Can non-exhaustive penalties be imposed for such violations (eg, exclusion from public procurement, exclusion from entitlement to public benefits or aid, disqualification from the practice of certain commercial activities, judicial winding up)?

Answer ... Active and passive bribery of Swiss or foreign public officials can be sanctioned by imprisonment for up to five years or a monetary penalty. Bribery in the private sector (both active and passive) and granting or accepting an advantage are sanctioned by imprisonment for up to three years or a monetary fine. In minor cases of bribery of private individuals, the offence is prosecuted only on complaint, and thus not ex officio.

Under Article 102 of the SCC, companies may be fined up to CHF 5 million if they fail to take all necessary precautions to prevent bribery in their organisation.

Other sanctions include:

  • prohibition from practising a profession (Article 67 of the SCC);
  • publication of the judgment (Article 68 of the SCC);
  • expulsion from Switzerland for foreigners (see Article 62, para 1 lit b and Article 63, para 1 lit a of the Federal Act on Foreign Nationals and Integration); and
  • forfeiture of assets or illegal profits which have been acquired through a specific violation (see Article 70 of the SCC).

If the assets subject to forfeiture are no longer available, a compensation claim will be imposed by the state and the accused must pay a sum of equivalent value (Article 71 of the SCC). The value of the assets which can be subject to forfeiture is not capped. It is also possible to cancel subsidies as an administrational consequence or to revoke a licence.

For more information about this answer please contact: Thomas A. Frick from Niederer Kraft Frey AG
What is the statute of limitations to prosecute anti-corruption violations in your jurisdiction?

Answer ... The statute of limitations depends on the term of the sentence of a given offence. Article 97, para 1 lit b of the SCC provides that the right to prosecute expires after 15 years in the case of active and passive corruption of Swiss or foreign public officials (Articles 322ter, 322quater and 322septies of the SCC). The right to prosecute facilitation payments (Articles 322quinquies and sexies of the SCC) and bribery in the private sector (Article 322octies of the SCC) is subject to a time bar of 10 years according to Article 97, para 1 lit c of the SCC. These limits apply only to the court of first instance.

Furthermore, Article 99, para 1 of the SCC specifies a time limit of five, 15 or 20 years to execute a sentence, depending on the offender’s actual punishment.

For more information about this answer please contact: Thomas A. Frick from Niederer Kraft Frey AG