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Whistleblowing and self-reporting
Are whistleblowers protected in your jurisdiction?
There is no legal duty for companies in Switzerland to establish whistleblower hotlines. However, corporate liability pursuant to Article 102(2) of the Criminal Code has the effect that – in addition to the primary perpetrator – the employing company may also be penalised for the offence if it "can be held responsible for failing to take all the organizational measures that were reasonably required in order to prevent such an offence".
Further, in mid-2015, the Federal Police implemented a web-based (external) reporting platform which allows the general public to report information directly on criminal acts of corruption and to do so anonymously if desired. The anonymity of the person reporting the information is guaranteed. The reported information is reviewed for criminal relevance and, if necessary, forwarded for investigation to the relevant department within the Federal Criminal Police or to the competent external authority (eg, the cantonal police).
However, under Swiss law, whistleblowers expose themselves to civil and criminal penalties. Apart from some limited exceptions, there are no laws protecting whistleblowers.
In employment law, employees are generally required to report to their employer internally before reporting any grievances to the authorities and may inform the public of misconduct only as a last resort. Further, the Swiss courts regularly treat disclosing confidential information to the public as a criminal offence, such as breaching manufacturing or business secrecy (Article 162 of the Criminal Code) or banking secrecy (Article 47 of the Banking Act).
The Federal Council has recently proposed inserting a new provision in the Code of Obligations which would allow whistleblowers to report misconduct to the authorities without breaching their duties to their employer, so long as they internally report the matter to their employer first. Further, it has also proposed adding whistleblowing to the Criminal Code’s statutory grounds of justification. This would protect whistleblowers from being held criminally liable for reporting misconduct. However, it is unclear whether and to which extent these proposals will come into force.
Is it common for leniency to be shown to organisations that self-report and/or cooperate with authorities? If so, what process must be followed?
There is no statutory duty in Swiss law for companies to report violations of anti-bribery laws and relating accounting irregularities. However, there are general reporting obligations relating to legal, compliance, reputational and operational risks in certain regulated sectors. The Federal Act on Combating Money Laundering and Terrorist Financing also imposes obligations on financial intermediaries to notify the authorities of suspected money-laundering activities.
Moreover, in July 2017 it was reported that the Swiss subsidiary of the German printing press manufacturer, Koenig & Bauer, self-reported corruption-related conduct to the Office of the Attorney General of Switzerland (OAG). This is the first time that such self-reporting of a corruption-related case was made. The company provided the OAG with the findings of its internal investigation and commissioned two independent expert reports on the profits made in connection with its corrupt business practices. The company established an integrity fund to enhance compliance standards and donated Sfr5 million to the fund. The symbolic fine was Sfr1. The profit for disgorgement was agreed to be Sfr35 million and was reduced by Sfr5 million to reflect the donation into the integrity fund.
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