Answer ... The Swiss Criminal Code (SCC) contains seven articles sanctioning bribery offences. Articles 322ter and 322quater sanction both active corruption (bribing) of Swiss public officials and passive corruption (the acceptance of bribes). Articles 322quinquies and 322sexies sanction the granting and acceptance of an undue advantage. Article 322septies prohibits corruption of foreign public officials. The offences of corruption in the private sector are sanctioned in Articles 322octies and 322novies, which entered into force on 1 July 2016; corruption in the private sector is prosecuted ex officio (except in cases of minor relevance). Finally, Article 102 of the SCC regulates the liability of corporates, in addition to the accountability of individuals.
From a preventive and regulatory perspective, various soft law rules should be considered, such as International Standardisation Organisation Standard 37001, which is a flexible tool to address bribery risks in any country by any organisation or company in the public or private sector, no matter how big or small. Enterprises subject to prudential supervision should implement anti-corruption regulations; otherwise, they risk breaching their licence terms.
Answer ... Switzerland is a signatory to four major international conventions to combat corruption (in chronological order):
- the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime of 8 November 1990, ratified by Switzerland on 31 May 2000;
- the Organisation for Economic Cooperation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of 21 November 1997, ratified by Switzerland on 31 May 2000;
- the Council of Europe Criminal Law Convention on Corruption of 27 January 1999 and its additional protocol of 15 May 2003, ratified by Switzerland on 31 March 2006 with several reservations, such as Section 12 (trading in influence), which is not to be punished under domestic law; and
- the United Nations Convention against Corruption of 31 October 2003, ratified by Switzerland without reservations on 24 September 2009.
Moreover, Switzerland is a party to several bilateral treaties containing anti-corruption provisions and has been a member of the Group of States against Corruption since 2006. Furthermore, Switzerland is a member of various judicial and administrative assistance treaties, supporting the enforcement of anti-corruption measures taken by other member states.
Answer ... The federal structure in Switzerland implies a distinction between cantonal and federal enforcement authorities. At the federal level, the Office of the Attorney General (OAG, www.bundesanwaltschaft.ch/mpc/en/home.html) enforces:
- offences subject to federal jurisdiction (Articles 23 lit a and j of the Swiss Criminal Procedure Code (SCPC)); and
- cases in which the offences have to a substantial extent been committed abroad or in two or more cantons, with no single canton being the clear centre of gravity of the criminal activity (Article 24, para 1 of the SCPC).
Other investigations are the responsibility of cantonal prosecutors.
According to the general rule set forth in Article 31 of the SCPC, the place where a specific crime was committed determines which cantonal prosecutor’s office has jurisdiction. A delegation by the OAG to a cantonal prosecutor’s office is also possible.
The powers of the Swiss prosecution authorities are set forth in the SCPC. The prosecution authorities may take coercive measures such as detention of suspects or monitoring of bank accounts. If no exception such as the right to remain silent (nemo tenetur) or another privilege, such as professional secrecy, applies, the individual or corporation is obliged to cooperate by disclosing documents and/or information. Failure to cooperate triggers Article 292 of the SCC, imposing a fine on the wrongdoer, and may have procedural consequences. Prosecution authorities establish the facts and will bring charges against the suspect.
If financial intermediaries are involved, the Swiss Financial Market Supervisory Authority (FINMA, www.finma.ch/en/) – that is, the Swiss regulator of financial institutions – is in charge of the regulatory aspects. FINMA may investigate wrongdoing independently of investigations conducted by the state prosecutors. Instruments for investigations include audits and internal independent investigations, and administrative sanctions may entail reprimands or even the withdrawal of a financial intermediary’s licence.
Answer ... At the moment, Switzerland ranks third out of 180 countries in the Corruption Perception Index of Transparency International, with a score of 85 out of 100. The score indicates the perceived level of public sector corruption (with zero indicating highly corrupt and 100 non-corrupt). Both rankings clearly show that Switzerland is a top-ranked country concerning anti-corruption. Consequently, there are few reported corruption cases in Switzerland – on average about five per year, according to the official statistics. However, a number of high-profile corruption cases abroad have also been prosecuted in Switzerland under anti-money laundering rules (eg, Odebrecht).
Answer ... The OECD is of the opinion that Switzerland lacks comprehensible, robust legislation for the protection of whistleblowers.
According to the OECD’s working group 2018 review report:
Switzerland should do even more to prosecute companies and apply tougher sanctions. Private sector whistleblowers, who are exposed to criminal prosecution as a result of reporting, should also be protected, according to a new OECD report. While court decisions supporting enforcement of foreign bribery were noted, several court decisions have demonstrated a restrictive interpretation of both this offence and corporate liability.
The OECD recommends the adoption of a legal framework to protect private sector whistleblowers. In addition, the OECD recommends that Switzerland:
- ensure that sanctions concerning foreign bribery are effective, proportionate and dissuasive; and
- publish details of concluded foreign bribery cases.