Domestic briberyLegal framework
Describe the individual elements of the law prohibiting bribery of a domestic public official.
Articles 322-ter to 322-sexies Swiss Criminal Code (SCC) set out the regulations against bribery of Swiss public officials.
From an objective point of view, the following four conditions are required:
- a corrupting party;
- a corrupted party: a Swiss public official;
- a typical behaviour: the offering, promising or granting of an undue advantage (active corruption and granting of a facilitation payment), or the soliciting, eliciting of a promise of or accepting of an undue advantage (passive corruption and accepting of a facilitation payment); and
- the ‘consideration’ of the corrupted party: the commission or omission of an act in relation to a public official’s duties that is contrary to his or her duties or dependent on the exercise of his or her discretionary powers (corruption), or the commission of an act in accordance with a Swiss public official’s duties (facilitation payment).
The element of undue advantage encompasses any measurable improvement in the beneficiary’s situation, whether financially, legally or personally. The classical bribe is a material advantage (ie, the granting of any benefit that has an economic value) such as the payment of money. This advantage must induce or reward someone to act in a specific manner that is favourable to the corrupting party or a third party. Pursuant to article 322-decies(1) SCC, an advantage shall not be deemed to be undue if the advantage is permitted under public employment law or contractually approved by a third party or if an advantage of minor value is of common social practice. It is, nevertheless, noteworthy that even small gifts can amount to bribery if they are given in view of influencing a public official.
For all corruption offences under the SCC, intent is required: the offender must be aware of his or her criminal conduct and be willing to engage in such conduct. Dolus eventualis (wilful blindness) (ie, for an individual objectively to foresee the possibility of committing an offence and to accept the risk by persisting regardless of the consequences) is sufficient.
The offering, promising or granting of an undue advantage must be the motive for the commission or omission of the act that is contrary to the person’s duties or dependent on his or her discretion, respectively, in cases of facilitation payments, the carrying out of an act in accordance with public duties.Scope of prohibitions
Does the law prohibit both the paying and receiving of a bribe?
The constitutive elements of the offence of bribery or facilitating payments include not only the active payment of such bribes but also the passive action of receiving them. The active and passive form of the offence are subject to the same penalties.Definition of a domestic public official
How does your law define a domestic public official, and does that definition include employees of state-owned or state-controlled companies?
A Swiss public official is a member of a judicial or other authority, a public official, an officially appointed expert, translator or interpreter, an arbitrator or a member of the armed forces.
Private individuals who fulfil official duties are subject to the same provisions as public officials (article 322-decies(2) SCC).
Employees of state-owned or state-controlled companies may qualify as public officials, if and to the extent they pursue an official activity.Gifts, travel and entertainment
Describe any restrictions on providing domestic officials with gifts, travel expenses, meals or entertainment. Do the restrictions apply to both the providing and the receiving of such benefits?
Pursuant to the SCC, an ‘undue advantage’ can take any form and include gifts, travel expenses, meals or entertainment. The restrictions apply to both the providing and the receiving of such benefits. Articles 52 and 322-decies(1) SCC set out certain de minimis exceptions.
In accordance with article 322-decies(1) SCC, advantages are not undue if permitted under public employment law, contractually approved by a third party or if they are negligible advantages that are common social practice. For instance, giving a chocolate box worth 50 francs to a public official for his or her speech at a public seminar would be a commonly accepted social practice. However, meals at expensive restaurants are not considered as commonly accepted practice by Swiss courts.Facilitating payments
Have the domestic bribery laws been enforced with respect to facilitating or ‘grease’ payments?
The number of convictions with respect to facilitating or ‘grease’ payments are relatively low. Between 2014 and 2019, the Federal Office of Statistics has solely identified 13 sentences for such charges.
Recent decisions can be summarised as follows:
- In January 2018, the Federal Supreme Court sentenced a former employee of the Swiss company SIG providing local services in the Canton of Geneva to a suspended two years custodial sentence for charges of acceptance of an undue advantage (a sum of 100,000 francs). The Federal Supreme Court referred the case back to the Geneva court for further investigation with respect to a second accusation of acceptance of undue advantage by the SIG employee, whose wife received an excessive payment of 180,000 francs from a Ticino businessman active in the energy fields to acquire the copyright of a book on wind energy that she had written.
- In June 2020, the Federal Criminal Court, found a former member of the Federal Criminal Police guilty of acceptance of an undue advantage in connection with a hunting trip to Kamtschatka organised by the former Deputy Attorney General of the Russian Federation. However, the Federal Criminal Court refrained from punishing him, as it considered him to be so severely affected by the immediate consequences of his acts that a penalty would be inappropriate. This decision was confirmed by the Federal Supreme Court on 17 November 2021.
- On 22 February 2021, a Geneva Court sentenced a member of the Council of State of Geneva to a suspended monetary penalty of 300 daily penalty units for charges of acceptance of an undue advantage with regard to a family trip to Abu Dhabi estimated at 50,000 francs, organised by a friend of his active in the real estate field in Geneva and exclusively paid by an Emirati friend of this Geneva friend. The conviction was, however, overturned by the Geneva Appeal Court, which acquitted the politician in January 2022. The Geneva prosecutor’s office has the possibility to appeal against the acquittal before the Federal Supreme Court.
What are the restrictions on a domestic public official participating in commercial activities while in office?
All public officials in Switzerland are allowed to own shares in private enterprises. There is no specific rule that prohibits Swiss public officials from participating in commercial activities while in the office. The employees of the federal administration as well as those of the cantonal administrations are only allowed to exercise an activity outside of their public function in specific circumstances and upon authorisation by the appropriate authorities. If that activity presents a risk of conflict of interest, no authorisation will be granted.Payments through intermediaries or third parties
In what circumstances do the laws prohibit payments through intermediaries or third parties to domestic public officials?
The bribe may be made or received indirectly through an intermediary. This follows implicitly from the legal provisions. In addition, articles 322-ter to 322-novies SCC explicitly provide that the beneficiary of the undue advantage may be a third party, as long as this motivates an individual to carry out an act in connection with his or her official activities that is contrary to his or her duties or dependent on his or her discretion, respectively, in cases of facilitation payments, to act in accordance with his or her public duties.
The general provisions of Swiss criminal law pertaining to incitement and assistance (complicity) are also applicable to other participants in cases of corruption.Individual and corporate liability
Can both individuals and companies be held liable for violating the domestic bribery rules?
In accordance with article 102(2) SCC, if an act of active domestic bribery is committed in an undertaking, the undertaking is penalised irrespective of the criminal liability of any natural persons, provided the undertaking has failed to take all the reasonable and necessary organisational measures required to prevent such an offence. In that context, both individuals and companies can be held liable for having bribed a Swiss public official.
There must thus be a causal link between the lack of organisation and the offence, such that the undertaking is not liable if the offence was committed despite the adoption of all reasonable and necessary organisational measures.
‘Irrespective of the criminal liability of any natural persons’ means that even if the person who committed the offence escapes prosecution, the undertaking’s punishability is maintained.
With regard to passive bribery and acceptance of an undue advantage, in accordance with article 102(1) SCC, a corporate criminal liability arises if a criminal conduct occurred in a corporate context, but the offender cannot be identified due to the corporation's lack of organisation. The act is therefore attributed to the undertaking.Private commercial bribery
To what extent does your country’s domestic anti-bribery law also prohibit private commercial bribery?
Articles 322-octies and 322-novies SCC prohibit active and passive bribery in the private sector. Those provisions prohibit the act of offering, promising or giving (respectively soliciting, securing the promise of or accepting) to an employee, partner, agent or any other auxiliary of a third party in the private sector an undue advantage for that person’s or a third party’s benefit in order for that person to carry out or fail to carry out an act in connection with his or her official activities, which is contrary to the person’s duties or dependent on his or her discretion.Defences
What defences and exemptions are available to those accused of domestic bribery violations?
The defences available are those related to the fact whether the objective and subjective requirements of the relevant provision are met. It is, for instance, possible to challenge the fact that a gift is to be deemed an undue advantage.
As to corporate criminal liability, a corporation can exonerate itself if it is able to prove that it has taken all reasonable and necessary organisational measures required to prevent the offence from being committed even though the offence was ultimately committed.Agency enforcement
What government agencies enforce the domestic bribery laws and regulations?
In principle, the prosecutor’s offices at the cantonal level as well as the Office of the Attorney General of Switzerland (OAG) at the federal level are competent to enforce the Swiss bribery laws and regulations. The OAG will lead the investigation exclusively if the offences under investigation were, to a large extent, committed abroad, or if the criminal conduct took place in various cantons without a clear emphasis on one canton. The cantonal prosecutor’s offices and the OAG may also agree that the investigation is conducted by the OAG, or the OAG may delegate an investigation to a cantonal prosecutor’s office.
If acts of bribery or similar allegations concern a financial intermediary supervised by the Swiss Financial Market Supervisory Authority (FINMA), the latter is authorised to enforce its supervisory powers independently from any criminal investigation led by the prosecution authorities.Patterns in enforcement
Describe any recent shifts in the patterns of enforcement of the domestic bribery rules.
Switzerland has been ranked third among 180 listed countries in the Transparency International’s Corruption Perceptions Index 2020.
Switzerland is also implementing anti-bribery provisions into existing legislation. A revised Federal Act on Public Procurement (PPA) came into force on 1 January 2021, which includes measures against corruption. Pursuant to article 44(1) (e) PPA, a tenderer may be excluded from an award procedure, removed from a list, revoked an award if it is found that the tenderer, one of its governing bodies, a third party called upon or one of such a third party’s governing bodies has violated anti-corruption provisions. The exclusion on grounds of corruption lasts for a maximum of five years and applies to every public procurement of the Swiss Confederation.Prosecution of foreign companies
In what circumstances can foreign companies be prosecuted for domestic bribery?
Swiss jurisdiction requires a sufficient link of the criminal conduct to Switzerland. In general, the link requires that criminal acts took place on Swiss territory or had ‘effects’ on Swiss territory (articles 3 and 8 SCC). Under Swiss law, the deficient organisation of the company is a necessary requirement for establishing corporate criminal liability.
Regarding jurisdiction over a foreign corporation, there is no court precedent whether jurisdiction will be based on the place where the lack of organisation materialised, the place where the acts of bribery took place, or both. In a summary penalty order issued in December 2016 in the Petrobras matter, the OAG ruled that foreign companies are subject to Swiss law on corporate criminal liability if the offence was committed in Switzerland or the lack of organisation existed (at least in part) in Switzerland.Sanctions
What are the sanctions for individuals and companies that violate the domestic bribery rules?
Active and passive corruption carry sentences not exceeding three to five years of imprisonment depending on the type of bribery committed, or a monetary penalty up to 540,000 francs for individuals. Penalties may further include a ban on exercising professional activities or the revocation of a residence permit for foreigners as an administrative sanction. Corporations can be sanctioned with a fine up to 5 million francs.
In addition to the sentence, illegal profits obtained through corrupt acts or assets intended to induce or to reward the offender are subject to forfeiture (article 70 SCC). If these assets are no longer available, the offender will be ordered to pay an equal amount in the form of a compensation claim that is raised by the state (article 71 SCC). Neither forfeiture nor compensation claims are capped at a certain amount and can thus result in a very serious sanction.Recent decisions and investigations
Identify and summarise recent landmark decisions and investigations involving domestic bribery laws, including any investigations or decisions involving foreign companies.
In June 2018, the Federal Criminal Court sentenced an employee of the Swiss Federal Railways (SBB) for charges of passive bribery and acceptance of an undue advantage to a 36-month custodial sentence, partially suspended, and a monetary penalty of 150 daily penalty units. Two directors of an electrical company were sentenced for charges of active bribery of a Swiss public official and granting of an undue advantage to suspended monetary penalties amounting to 360 and 240 daily penalty units respectively.
In 2019, the OAG opened an investigation against a former head of section at the State Secretariat for Economic Affairs (SECO) for charges of passive bribery and six directors of an IT company for charges of active bribery of a Swiss public official. In the spring of 2019, the OAG issued three summary penalty orders against three of the IT company directors (partially suspended monetary penalty from 100 to 180 daily penalty units, together with a fine from 1,000 to 1,500 francs). In September 2019, the OAG filed indictments against the former head of section at SECO and the three other directors of the IT company before the Federal Criminal Court. In September 2021, the Federal Criminal Court sentenced the former head of section at SECO to a 52-months custodial sentence and a monetary penalty of 130 daily penalty units. The three directors of the IT company were imposed suspended custodial sentences and monetary penalties.