1. Bribery in the home (private to public)
1.1 The Legal Environment
Bribery of public officials is outlawed by Articles 322ter to 322quater of the Swiss Criminal Code.
1.2 What does bribery mean?
The Swiss Criminal Code distinguishes between active bribery, which can be committed by anybody attempting to bribe a public official (Swiss Criminal Code, Article 322ter), and the receipt of bribes, which can only be committed by those officials (Swiss Criminal Code, Article 322ter) (Swiss Criminal Code, Article 322quater).
Bribery is defined as offering, promising, or giving a public official an advantage that is not due to him or her, or offering, promising, or giving such an advantage to a third party, in order to induce that public official to do or not do something in connection with his or her official activity that is contrary to his or her duty or depends on his or her discretion.
Demanding, securing the promise of, or accepting a benefit that is not due to the public official for himself or for a third party in order for him or her to carry out or fail to carry out an act in connection with his or her official activity that is contrary to his or her duty or dependent on his or her discretion is referred to as accepting bribes.
1.3 What does it mean to be a public official?
A member of a judicial or other authority; an officially appointed expert; an officially appointed translator or interpreter; and an arbitrator or a member of the armed forces are all examples of public officials under the Swiss Criminal Code. Private people and workers of publicly held enterprises may be included in this category if they perform public functions.
1.4 Bribery’s Consequences
(a) For the Individuals Involved
Individuals who actively bribe public authorities face the same penalties as those who take a bribe, according to the Swiss Criminal Code. The following are some of the penalties:
A sentence of up to five years in prison is possible.
A monetary punishment of up to 360 daily penalty units, determined on a per diem basis (a judge will determine the daily penalty from CHF 10 to CHF 3,000 per day.
Prohibition from practicing a profession for up to five years
Objects and assets that were used, intended to be utilized, or produced as a result of the offense are subject to criminal forfeiture.
(b) Criminal fine of up to CHF5 million for the company/legal entity
Objects and assets that were used, intended to be utilized, or produced as a result of the offense are subject to criminal forfeiture.
1.5 Contributions from politics
Switzerland has yet to implement any federal legislation governing political contributions, leaving the cantons to manage the matter. Political parties, on the other hand, are not compelled to declare political donations and contributions in most cantons. Despite the fact that political party fundraising has been a hot topic in Switzerland in recent years, there is currently no consensus on whether or not such limits should be implemented and in what form.
1.6 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, amongst others)
The Swiss Criminal Code makes no general quantitative or qualitative restrictions on hospitality costs. Some applicable regulations for public officials, on the other hand, provide clear guidelines and constraints on such spending. For example, according to Article 93 of the Swiss Ordinance on Federal Public Employees, gifts and benefits for some public officials must be worth less than CHF 200.
Aside from such specific rules, the question of whether a hospitality expense qualifies as bribery under the Swiss Criminal Code must be decided on a case-by-case basis.
2. Bribery in the home (private to private)
2.1 Legal Framework
Private bribery is forbidden by Articles 322octies to 322novies of the Swiss Criminal Code. Furthermore, private bribery is an act of unfair competition, as defined by Article 4a of the Swiss Act on Unfair Competition.
2.2 What is bribery in the private sector?
The Swiss Criminal Code distinguishes between active private bribery (Swiss Criminal Code, Article 322octies), which can be committed by anyone who tries to bribe certain private sector individuals, and accepting bribes (Swiss Criminal Code, Article 322novies), which can only be committed by said private sector individuals. Article 4a of the Swiss Act on Unfair Competition makes the same distinction.
Offering, promising, or giving an advantage that is not due to a private sector employee, company member, mandatee, or agent in connection with his or her business-related duties in exchange for an act or omission that violates such duties or in exchange for a discretionary act or omission for the benefit of himself or herself or for the benefit of a third party is referred to as private bribery.
Accepting a bribe in the private sector entails demanding, securing the promise of, or accepting an advantage that is not due in connection with business-related duties as an employee, company member, mandatee, or agent in the private sector in exchange for an act or omission that violates such duties, or in exchange for a discretionary act.
2.3 Consequences of private bribery
(a) For the people who are involved
Three years in prison is possible (small cases, however, are prosecuted only upon request of the affected person or legal entity)
A monetary punishment of up to 360 daily penalty units, determined on a per diem basis (a judge will determine the daily penalty, taking into account the financial strength of the individual, from CHF 10 to CHF 3,000 per day, and will multiply such amount by the number of days imposed)
Prohibition from practicing a profession for up to five years
Objects and assets that were used, intended to be utilized, or produced as a result of the offense are subject to criminal forfeiture.
(a) For the corporation/legal entity:
A criminal penalties of up to CHF5 million might be imposed.
Objects and assets that were used, intended to be utilized, or produced as a result of the offense are subject to criminal forfeiture.
2.4 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, amongst others)
Neither the Swiss Criminal Code nor the Act on Unfair Competition set general numeric or qualitative limits on hospitality expenses. However, in some businesses, information on hospitality expenses can be found in appropriate industry standards or self-regulation guidelines. Aside from such explicit soft law principles, the Swiss Criminal Code and the Act on Unfair Competition specify that some advantages that have been approved by a third party, as well as tiny advantages that are socially acceptable, are exempt from their reach (Swiss Act on Unfair Competition, Article 4a, Paragraph 2 and Swiss Criminal Code, Article 322decies). However, because there is currently only a limited amount of advice on the specific scope of this exception, the question of whether a hospitality charge qualifies as private bribery must be decided on a case-by-case basis, taking into account all of the facts and circumstances.
3. Bribery of foreign government officials
3.1 The Legal Environment
Bribery of foreign public authorities is forbidden by Article 322septies of the Swiss Criminal Code.
3.2 Bribery of foreign public authorities is defined as:
The Swiss Criminal Code distinguishes between active bribery, which can be committed by anyone who tries to bribe a foreign public official (Swiss Criminal Code, Article 322septies., paragraph 1), and accepting bribes, which can only be committed by said officials (Swiss Criminal Code, Article 322septies., paragraph 2).
Bribery of foreign officials entails offering, promising, or providing an advantage that is not due to the foreign public official or an international organization official, or offering, promising, or providing such an advantage to a third party, in order to cause that public official to carry out or fail to carry out an act in connection with his or her official activity that is contrary to his or her official duties.
Bribing foreign public officials entails requesting, securing the promise of, or accepting an advantage that is not due to the foreign public official or the public official of an international organization for himself or for a third party in order for him or her to carry out or fail to carry out an act in connection with his or her official activity that is contrary to his or her official duties.
3.3 Explanation of the term “foreign public official”
A member of a judicial or other authority; an officially appointed expert; an officially appointed translator or interpreter; and an arbitrator or a member of the armed forces of a foreign state or an international organization are all included in the Swiss Criminal Code’s definition of foreign public officials. Private persons and workers of publicly held enterprises can be included in this idea if they perform public functions.