Swiss Anti-Corruption Laws: A Guide to Bribery Offences, Compliance, and Penalties

Introduction

Under Swiss law, the issue of bribery is addressed in the Swiss Criminal Code (SCC), in its Articles 322^ter to 322^novies. The scope of these offences is quite broad and includes active and passive bribery. It applies to acts within both the public and private sectors and includes a range of potential recipients of bribes, from Swiss officials to foreign officials and private individuals. The Swiss legal framework aims to reflect the country's commitment to combating corruption by aligning with international standards such as those set by the OECD Anti-Bribery Convention, to which Switzerland is a party.

Swiss Corporate bribery offences

Is there an offence for making a bribe under Swiss law? If yes, what is the scope of this offence?

Yes, the SCC criminalises the offering, promising or giving as well as the granting of an undue advantage (so-called “active” bribery) in its Articles 322^ter, 322^quinquies, 322^septies and 322^octies.

Is there an offence for accepting a bribe under Swiss law? If yes, what is the scope of this offence?

Yes, under Swiss law, “passive” bribery is also an offence. The SCC contains provisions that criminalise the acceptance of bribes by both public officials and private individuals.

For Swiss public officials, the offence of accepting a bribe is covered under Articles 322^quater and 322^sexies SCC. The bribe must be in exchange for carrying out or failing to carry out an act related to their official activities, and which is contrary to their duties or dependent on their discretion. Accordingly, the offence for foreign public officials is regulated in Article 322^septies para. 2 SCC.

In the private sector, the acceptance of bribes is criminalised under Article 322^novies SCC. This provision makes it illegal for an employee, partner, agent or any other auxiliary of a third party in the private sector to demand, secure the promise of, or accept an undue advantage for themselves or for a third party. In this context as well, the bribe must be a quid pro quo for carrying out or failing to carry out an act related to their business activities, and which is contrary to their duties or dependent on their discretion.

Is it an offence to bribe a public official under Swiss law?

Yes, in Switzerland, it is an offence to bribe both a Swiss and a foreign public official (Articles 322^ter and 322^septies SCC).

“Public official” is defined as the officials and employees of a public administrative authority or of an authority for the administration of justice as well as persons who hold office temporarily or are employed temporarily by a public administrative authority or by an authority for the administration of justice or who carry out official functions temporarily (Article 110 para. 3 SCC). This definition is expanded in Article 322^ter SCC naming as a public official any judicial or other authority, an official, an officially appointed expert, translator or interpreter, an arbitrator or a member of the armed forces.

What is the jurisdictional reach of all those offences under Swiss law?

As a rule, Swiss anti-corruption laws do not have any special extraterritorial effects. Rather, the general rules on the applicability of the SCC, regulated in its Articles 6 and 7, apply. These provisions set out the circumstances under which the SCC can be applied extraterritorially.

This is primarily the case when Switzerland is bound by an international treaty, obliging it to prosecute the crime, provided that:

• 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 remains in Switzerland and is not extradited to the foreign country.

Additionally, pursuant to Article 7 para. 1 SCC, the SCC applies to an individual who has committed an offence abroad if the following conditions are cumulatively met:

• the offence is also liable to prosecution at the place of commission, or the place of commission is not subject to criminal law jurisdiction;
• the person concerned resides in Switzerland or is extradited to Switzerland due to the offence;
• under Swiss law, extradition is permitted for the offence, yet the person concerned is not being extradited.

If the person involved is not a Swiss citizen and if the offence was not committed against a Swiss citizen, for the SCC to apply, it must either be the case that the extradition was refused for a reason unrelated to the nature of the offence or that the offender has committed a particularly serious felony that is universally condemned by the international community.

Can corporates commit bribery offences under Swiss law?

Under Article 102 para. 2 SCC, companies can be held criminally liable if they fail to take “all the reasonable organisational measures that are required in order to prevent such an offence”, regardless of the criminal liability of any natural person. International and Swiss anti-corruption standards, including codes of conduct, industry agreements and corporate standards, provide a framework to assess whether the accused company has implemented such measures.

What is the scope of that offence?:

• Jurisdictional reach (in terms of which corporates can be claimed against)
  
  Article 102 SCC applies to any legal entity under private and public law, with exception of local authorities, as well as companies and sole proprietorships (Article 102 para. 4 SCC).
• What do you need to show to have a claim?
  
  For an indictment (or a summary penalty order) against a company, the public prosecutor must prove that the offence committed cannot be attributed to any specific natural person due to the company's inadequate organisation or – in the case of certain offences – that the company has failed to take all necessary and reasonable organisational measures to prevent such an offence (Article 102 para. 1 and 2 SCC). The latter applies, among others, to bribery offences.
• What defences are available to corporates?
  
  Companies being accused of an organisational failure in the sense of Article 102 para. 2 SCC must demonstrate that they had adequate measures in place to prevent such bribery offences. Consequently, companies are advised to establish comprehensive compliance and prevention programmes.
  
  Key components of such programmes include, among others, risk assessment and management, due diligence of third parties as well as clear guidelines on gifts and hospitality. These measures are essential for identifying potential risk areas, developing strategies to mitigate them, and ensuring that business practices do not inadvertently lead to corrupt behaviour or conflicts of interest. It is important that these measures are regularly monitored and updated as necessary. Furthermore, an effective system for reporting misconduct (including protection of whistleblowers) is also one of the key elements. This system is designed to promote the early detection and remediation of any unethical conduct.
  
  It is essential to outline that compliance measures that meet strict requirements can lead to mitigation of the sanction, however, even a comprehensive compliance system does not necessarily fully exclude corporate criminal liability. Only if the competent authority is convinced that the company in question has taken all the necessary organisational measures to prevent corruption, the company will not be held criminally liable.

Who enforces the legislation and what are the penalties for corporates under Swiss law? 

As the prosecutors’ office for the Swiss Confederation, the Office of the Attorney General (OAG) is responsible for investigating and prosecuting offences that fall under federal jurisdiction, which are specified in Articles 23 and 24 of the Swiss Criminal Procedure Code (SCPC) and in other federal legislation. Any other investigations fall within the jurisdiction of the cantonal prosecutors.

Corporations can be fined up to CHF 5 million. The exact amount of the fine will depend on the seriousness of the offence, the extent of the organisational failures, the loss or damage caused by the offence, the economic ability of the failing company and the preventive measures that were (or were not) in place. Beyond fines, companies may be ordered to surrender any profits that were made as a result of the bribery practices. Additionally, assets obtained through or intended for use in the commission of the bribery may be confiscated.

Apart from the financial consequences, companies involved in bribery may face a variety of other sanctions. A significant measure, for example, is the exclusion from public procurement processes, which for some businesses could mean a substantial loss of revenue. Additionally, such companies might be denied export guarantees, further impacting their financial stability and market operations.

Conclusion

In summary, Swiss anti-corruption laws provide for a range of offences and penalties for both private individuals and corporates. The country's legal provisions are intended to deter corruption, promote transparency and oblige companies to maintain a certain standard of behaviour. With the OAG and cantonal prosecutors at the forefront of law enforcement, Switzerland endeavours to combat bribery and uphold its reputation as a nation committed to the rule of law and ethical business practices.

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