Anti-Corruption & Bribery In Switzerland

Author:Dr. Andreas D. Länzlinger and Roman Huber
Profession:Bar & Karrer
 
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Trends and climate

Trends Have there been any recent changes in the enforcement of anti-corruption regulations?

On July 1 2016 new rules regarding bribery in the private sector entered into force. The new legislation aims to provide a more effective legal framework for the prosecution of bribery in the private sector in view of Switzerland's globalised economy and the numerous international sports associations that are headquartered in Switzerland.

Private sector bribery is now codified as an offence in the Criminal Code. The newly introduced penal provisions are generally categorised as public offences; only in minor cases will an injured party's complaint continue to be a requirement for prosecution. In addition to the codification of new offences in the private sector, broader provisions have been introduced regarding the bribery of public officials. Going forward, bribery will also constitute a criminal offence in cases where a bribe has been paid not to a public official, but to a third party, such as a sports association.

It remains to be seen what practical impact the recent legislative changes will have on the prosecution of private sector bribery in Switzerland.

Legislative activity Are there plans for any changes to the law in this area?

A proposed legislative amendment protects whistleblowers, so that they can report incidents without fear of repercussions from their employers.

Legal framework

Authorities Which authorities are responsible for investigating bribery and corruption in your jurisdiction?

Due to Switzerland's federal structure, the state (cantonal) or federal authorities may have jurisdiction to investigate and prosecute bribery and corruption offences (Article 22 et seq of the Criminal Procedure Code), depending on the specific circumstances of the case - such as where the alleged bribery was committed. Bribery offences committed by a member of the authorities or an employee of the Swiss Confederation, or against the Swiss Confederation, are subject to federal jurisdiction (Articles 23(a) and (j) of the Criminal Procedure Code), as are offences which have been committed to a substantial extent abroad or in two or more cantons with no single canton being the predominant centre of the criminal activity (Article 24(1) of the Criminal Procedure Code).

While the Office of the Attorney General investigates bribery offences that are subject to federal jurisdiction, all other bribery investigations are handled by the relevant cantonal law enforcement authorities.

Domestic law What are the key legislative and regulatory provisions relating to bribery and corruption in your jurisdiction?

The offences of bribery of public officials and bribery in the private sector are codified in the Criminal Code (Articles 322ter and 322decies). The offence of private commercial bribery in the context of the distortion of competition is codified in Article 4a of the Act against Unfair Practices.

International conventions What international anti-corruption conventions apply in your jurisdiction?

Switzerland is a signatory to three international anti-corruption conventions:

The 34 Organisation for Economic Cooperation and Development (OECD) nations and Argentina, Brazil, Bulgaria, Russia, Colombia, Latvia and South Africa have signed the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1997. Signatory states have amended their legislation to make the bribery of foreign public officials a punishable offence. A far-reaching monitoring programme established under the convention ensures that its provisions are enacted and enforced in all signatory states. In 1999 the Criminal Law Convention on corruption was passed under the auspices of the Council of Europe. The convention's substantive provisions go beyond the OECD convention in so far as they prescribe the general minimum requirements for criminal law provisions required to fight private and public corruption. Switzerland acceded to the Criminal Law Convention and its 2003 Additional Protocol (both ratified on March 31 2006) and joined the Council of Europe's Group of States against Corruption in 2006. The UN Convention against corruption was signed by more than 140 countries, including Switzerland, in December 2003 and came into force in 2005. It differs from the OECD and Council of Europe conventions due to its universal nature and the inclusion of provisions requiring the restitution of funds acquired through illegal and corrupt practices. The UN Convention was ratified by Switzerland in September 2009. Further, Switzerland is a party to various bilateral treaties in matters of mutual assistance that facilitate the seizure, confiscation and repatriation of the proceeds of crimes (including corruption). It has also ratified the 1990 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of Proceeds of Crime.

Specific offences and restrictions

Offences What are the key corruption and bribery offences in your jurisdiction?

The key corruption and bribery offences are regulated in Title 19 of the Criminal Code. It contains the following corruption and bribery offences:

Article 322ter (bribery of Swiss public officials) - offering, promising or giving an undue advantage to a Swiss public official or third party in order to cause the 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. Article 322quater (bribery of Swiss public officials or the acceptance of bribes) - demanding...

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