In Switzerland, statistics show a trend where increasing numbers of corporate entities face prosecution. While corporate criminal liability has existed since 2003, it has never been applied as often as nowadays. In cases such as HSBC, Petrobras, 1MDB and more recently Addax, criminal authorities show a clear will-ingness to go after corporate entities, rather than individuals. Against such a background, this paper highlights some features of corporate criminal liability (B), self-reporting (C), and enforcement tools in Switzerland (D).
B General aspects and conditions of corporate criminal liability
I Relevant provision under Swiss law
It is possible for a company to be liable for acts committed by its employees and directors, under specific conditions that are set out in further detail below.
Article 102 of the Swiss Criminal Code (SCC) contains two forms of corporate criminal liability: secondary criminal liability, pursuant to Article 102, para. 1 SCC, and primary criminal liability, pursuant to Article 102, para. 2 SCC. It should be noted that the application of Article 102 para. 1 is subsidiary to Article 102 para. 2 SCC.
The purpose of this provision is to provide a pragmatic solution for situations where the conviction of an individual is not sufficient or equitable, or where it is impossible to hold any natural person criminally liable due to a lack of reasonable and adequate organisational precautions being taken by the company. Nonethe-less, it should be noted that Art. 102 SCC has not yet been applied extensively by public prosecutors. Accordingly, although over the last few years one can observe growing numbers of cases involving the prosecution of companies, a common standard practice related to its application has yet to develop fully.
In the following paragraphs, a summary of the conditions applicable to both pri-mary and secondary corporate criminal liability precedes the presentation of the specific conditions of these two forms of criminal liability.
II Definition of a company under Article 102 SCC
Article 102 SCC has a wide scope of application. Indeed, its application ratione personae includes not only companies stricto sensu, but also other legal entities. According to Article 102, para. 4 SCC, the following entities can be a criminal legal subject: any legal entity under private law (subsection a); any legal entity under public law with the exception of local authorities (subsection b); companies (subsection c); and sole proprietorships (subsection d).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.