Flavio Romerio, Claudio Bazzani, Katrin Ivell and Reto Ferrari-Visca, Homburger
This is an extract from the fourth edition of GIR’s The Practitioner’s Guide to Global Investigations. The whole publication is available here.
General context, key principles and hot topics
1Identify the highest-profile corporate investigation under way in your country, describing and commenting on its most noteworthy aspects.
In the past few years, Switzerland has been confronted with several multi-jurisdictional investigations relating to corruption, fraud, money laundering and tax evasion. Most of these cases attracted considerable media attention.
Beginning in 2008, the US authorities, and later the Swiss Financial Market Supervisory Authority (FINMA), initiated investigations against several Swiss banks in connection with their US cross-border business. By the end of 2018, more than 90 Swiss banks had reached an agreement with the US authorities and paid penalties totalling more than 6 billion Swiss francs.
Notable also are the investigations launched by FINMA and the Office of the Attorney General (OAG) in connection with the global money-laundering scandal around the Malaysian sovereign wealth fund 1MDB, and the investigations around the FIFA corruption scandal and the diesel emissions fraud scandal.
In connection with Brazil’s biggest corruption case – Odebrecht/Petrobras (Operation Car Wash) – the Swiss prosecutors and FINMA have sent disclosure orders to more than 40 Swiss banks and seized assets of more than US$1 billion. By the end of 2018, the Swiss authorities were able to transfer more than 300 million Swiss francs to the Brazilian authorities. In 2018, the OAG initiated criminal proceedings against two Swiss banks.
At the national level, notable cases are the investigations in connection with possible irregularities regarding certain private and business dealings of the former chief executive officer of Raiffeisen Bank and the investigation regarding incorrect accounting practices of the state-owned post bus company that had led to receipt of considerably higher subsidies than would otherwise have been due to it.
2Outline the legal framework for corporate liability in your country.
Corporate criminal liability in Switzerland can arise in two situations. First, a corporation will be held criminally liable if it is not possible to attribute an offence to any specific individual because of the inadequate organisation of the corporation. Second, a corporation may be held criminally liable if it fails to take all necessary and reasonable organisational measures to prevent certain offences, such as bribery, corruption, financing of terrorism or money laundering. The penalty is a fine up to 5 million Swiss francs.
Corporations may also be fined in administrative criminal proceedings instead of the responsible individual if a penalty of no more than 5,000 Swiss francs will be imposed and the investigations would be disproportionate compared to the fine. If the matter concerns a violation of financial market laws, the fine may be as high as 50,000 Swiss francs.
3Which law enforcement authorities regulate corporations? How is jurisdiction between the authorities allocated? Do the authorities have policies or protocols relating to the prosecution of corporations?
There are no specific law enforcement authorities regulating corporations. Accordingly, there are no specific policies or protocols relating to the prosecution of corporations.
At cantonal level, criminal laws are enforced by the regional and cantonal prosecutors with the assistance of the police. Some cantons have specialist prosecutors’ offices for business crimes.
At federal level, the OAG is responsible for prosecuting offences that are subject to federal jurisdiction (e.g., espionage, certain cases of corruption, international organised crime and certain white-collar crimes). The Federal Department of Finance is generally responsible for prosecuting offences against financial market laws (e.g., violation of duty to file a suspicious activity report or violation of disclosure rules).
In addition, government agencies enforce administrative laws and regulations. Important regulatory authorities at a national level are FINMA, which is responsible for monitoring financial institutions and enforcing the financial market legislation, and the Competition Commission (COMCO), which is responsible for monitoring companies for signs of anticompetitive conduct, combating harmful cartels and enforcing merger control legislation.
4What grounds must the authorities have to initiate an investigation? Is a certain threshold of suspicion necessary to trigger an investigation?
The police, the prosecutors and the Federal Department of Finance are required to open an investigation once they become aware of a potential criminal offence.
FINMA will initiate an investigation if it has reason to believe that financial market laws and regulations have been violated. However, FINMA has some discretion in deciding whether to open formal enforcement proceedings. For example, it may refrain from opening formal enforcement proceedings if a supervised entity fully co-operates and instantly implements all necessary remedial measures to ensure compliance with financial market legislation.
COMCO has adopted guidelines to establish the circumstances under which it will investigate antitrust violations. It usually opens an investigation when an alleged violation is serious or has a significant effect on the market, or when the case raises a legal question that warrants judicial clarification. COMCO usually declines to investigate complaints when the issue could be better solved through private litigation. COMCO can also decline to investigate a complaint when the target business has already changed its policy, or when it agrees to adapt its market behaviour or contracts.
5How can the lawfulness or scope of a notice or subpoena from an authority be challenged in your country?
In general, any orders from authorities can be challenged before the competent authorities and courts.
In criminal proceedings (including administrative criminal proceedings), records and objects must be sealed if the owner claims that they may not be searched or seized (e.g., owing to attorney–client privilege). The authorities then have the possibility to file a request for the removal of the seal before the competent courts.
6Does your country make use of co-operative agreements giving immunity or leniency to individuals who assist or co-operate with authorities?
Confessions and co-operation during the investigations in administrative criminal proceedings and criminal proceedings may lead to a reduction in the sentence. However, there are currently no specific immunity or leniency rules in Swiss criminal laws for co-operation. Therefore, an individual must carefully assess the potential benefits and downsides and decide on a case-by-case-basis whether he or she wants to co-operate with the authorities.
In enforcement proceedings, supervised entities and individuals are in general required to provide all information and documents that FINMA requests to fulfil its supervisory tasks. In this context, co-operation is not a mitigating factor but a statutory obligation. However, a supervised entity or individual is more likely to be able to negotiate an alternative resolution and to avoid formal enforcement proceedings by agreeing to co-operate with FINMA and take remedial measures.
COMCO has adopted a leniency policy that closely mirrors the model of the European Commission’s programme. Companies may be granted complete or partial immunity from sanctions if they self-report, hand over all available evidence and fully co-operate with COMCO. However, only the company that first reports a cartel may benefit from full immunity. Companies reporting subsequently may receive a reduction of their fine if they provide significant additional evidence.
In tax law, voluntary disclosure may lead to a mitigation or waiver of punishment if certain requirements are met.
7What are the top priorities for your country’s law enforcement authorities?
In recent years, the focus of the Swiss law enforcement authorities has been on corruption, fraud and money laundering cases. In addition, there has been an increase in criminal proceedings in connection with cybercrime.
8Does your country regulate cybersecurity? Describe the approach of local law enforcement authorities to cybersecurity-related failings.
Currently, there is no specific legislation regarding cybersecurity. Instead, cybersecurity is regulated by a variety of Swiss laws and regulations.
According to the Federal Data Protection Act (FDPA), personal data must be protected against unauthorised processing through adequate technical and organisational measures. In general, any violations of this principle must be enforced by bringing an action before the civil courts. The Federal Data Protection and Information Commissioner (FDPIC) has currently no enforcement powers (see question 21).
Based on the Financial Market Infrastructure Act, financial market infrastructures are required to operate IT systems that ensure the availability, confidentiality and integrity of data relating to participants and their transactions. Violations of these requirements might lead to investigations or, in serious cases, to formal enforcement proceedings by FINMA. Data breaches concerning data covered by Swiss bank secrecy may result in imprisonment for up to three years or a monetary penalty of up to 540,000 Swiss francs.
Currently, there is no general statutory duty to report data breaches. Depending on the circumstances, however, it might be advisable to notify the data subjects affected by such breaches based on the general data processing rules. In addition, there are some sector-specific reporting obligations, including in the financial services, telecommunications, aviation, railway and nuclear sectors.
It is also possible (not an obligation) to inform the Swiss Reporting and Analysis Centre for Information Assurance (known as MELANI) about cyber incidents.
9Does your country regulate cybercrime? What is the approach of law enforcement authorities in your country to cybercrime?
There is no specific law in Switzerland that regulates cybercrime. However, there are several provisions in the Swiss Criminal Code (SCC) that are specific to cybercrime, including unauthorised obtaining of data or unauthorised access to a data processing system. Depending on the circumstances, other criminal provisions may be applicable also, such as document forgery, extortion, coercion and money laundering.
Switzerland is a member of the Budapest Convention on Cybercrime. The main objective of the Convention is to pursue a common criminal policy aimed at protecting society against cybercrime, especially by adopting appropriate legislation and fostering international co-operation.
Cross-border issues and foreign authorities
10Does local criminal law have general extraterritorial effect? To the extent that extraterritorial effect is limited to specific offences, give details.
Generally, the Swiss authorities have jurisdiction over offences committed in Switzerland. An offence is committed in Switzerland if either the accused person acted in Switzerland or the offence had effects in Switzerland.
In specific cases, Swiss courts also have jurisdiction over offences committed abroad, including:
- offences against the Swiss state or its national security;
- specific offences against minors (e.g., trafficking, sexual assault, rape);
- offences that Switzerland undertook to pursue based on an international treaty if the offence is also punishable in the place it was committed; and
- offences that are punishable both in Switzerland and the place abroad where it was committed if the offence in question is an extraditable offence and the accused person is located in Switzerland but not extradited.
If the offence was committed abroad, the main evidence often needs to be obtained through international mutual legal assistance, which might be a lengthy process depending on the foreign authorities. Swiss authorities are thus usually selective in the prosecution of such offences. Instead, they try to prosecute foreign offences indirectly by targeting the accused persons for related offences committed in Switzerland (in particular, money laundering).
11Describe the principal challenges that arise in your country in cross-border investigations, and explain whether and how such challenges depend on the other countries involved.
The typical issue in cross-border investigations is the transfer of personal data from Switzerland to foreign courts, regulators or enforcement authorities. Several legal provisions restrict the disclosure of personal data to foreign authorities, inter alia, the prohibition of unlawful activities on behalf of a foreign state (Article 271, SCC), Swiss banking secrecy (Article 47, Federal Banking Act), Swiss data protection and labour laws. Additionally, contractual secrecy obligations or confidentiality agreements may prevent the disclosure of data.
Article 271 of the SCC prohibits and sanctions activities on behalf of a foreign state on Swiss territory unless the competent administrative body has granted an authorisation. In general, Swiss-based corporations and individuals are thus required to obtain authorisation if they intend to disclose personal data to foreign authorities.
Pursuant to Article 47 of the Federal Banking Act, it is an offence to disclose confidential information relating to current or former clients of a Swiss bank. A breach of Swiss banking secrecy may not only trigger criminal sanctions but also administrative measures or proceedings and civil liability.
The FDPA requires, inter alia, that personal data only be processed in compliance with specific processing rules (see question 21). In addition, the FDPA provides that personal data may not be disclosed to recipients outside Switzerland if this seriously endangers the privacy of the data subject (Article 6, FDPA). Such a risk is presumed as a matter of statutory law if the country of destination is lacking adequate data protection regulation. The FDPIC maintains a list of countries that are deemed to have adequate data protection.
When foreign authorities use the available channels of mutual administrative or legal assistance to obtain documents and information, the aforementioned provisions do not apply.
12Does double jeopardy, or a similar concept, apply to prevent a corporation from facing criminal exposure in your country after it resolves charges on the same core set of facts in another? Is there anything analogous in your jurisdiction to the ‘anti-piling on’ policy as exists in the United States (the Policy on Coordination of Corporate Resolution Penalties) to prevent multiple authorities seeking to penalise companies for the same conduct?
Switzerland applies the ne bis in idem doctrine, which is essentially the equivalent of the double jeopardy concept in common law jurisdictions. Based on this doctrine, no person who has been convicted or acquitted in Switzerland in a final legally binding judgment may be prosecuted again for the same offence. This also applies to corporations. Owing to the territoriality principle, a foreign prosecution or conviction has, in general, no effect on the jurisdiction of Swiss criminal authorities regarding offences committed in Switzerland. Under certain conditions, however, the Swiss criminal authorities have to observe a foreign verdict of acquittal or reduce the sentence if it has already been partly served abroad.
Unless the investigations do not have the same subject matter, multiple government authorities may simultaneously investigate the same corporation. If appropriate, they usually coordinate their actions and may consult each other to ensure that their investigations do not interfere with each other or duplicate the same enquiries. The ne bis in idem doctrine prohibits multiple authorities from penalising companies for the same conduct. However, in general, the doctrine has no effect on civil or regulatory proceedings. Therefore, regulatory authorities may order additional measures against a corporation even if that corporation has already been convicted or acquitted in criminal proceedings.
13Are ‘global’ settlements common in your country? What are the practical considerations?
Global settlements are not frequent in Switzerland. However, the Swiss authorities do co-operate with foreign authorities based on applicable laws, in particular in connection with multi-jurisdictional investigations.
14What bearing do the decisions of foreign authorities have on an investigation of the same matter in your country?
In general, Swiss authorities conduct their investigations independently. However, investigations or decisions of foreign authorities may cause the Swiss authorities to initiate an investigation.
Economic sanctions enforcement
15Describe your country’s sanctions programme and any recent sanctions imposed by your jurisdiction.
Switzerland’s sanctions programme authorises the Federal Council to impose non-military measures to implement sanctions that have been imposed by the United Nations, the Organisation for Economic Co-operation and Development or by Switzerland’s most significant trading partners (e.g., the European Union) for the enforcement of international law, in particular of human rights.
Possible sanctions are direct or indirect restrictions on transactions involving goods and services, payment and capital transfers, the movement of persons, scientific, technological and cultural exchange as well as prohibitions, licensing and reporting obligations and other restrictions of rights.
In general, Switzerland updates its sanctions lists in accordance with those issued by the United Nations.
16What is your country’s approach to sanctions enforcement? Has there been an increase in sanctions enforcement activity in recent years, for example?
The State Secretariat for Economic Affairs is the main authority with responsibility for monitoring and implementing sanctions. A breach of sanctions may result in imprisonment for up to five years, which may be combined with a fine of up to 1 million Swiss francs.
SECO does not publish information on its sanctions enforcement activity. Based on our experience, however, there has not been a significant increase in sanctions enforcement activity in recent years.
17Do the authorities responsible for sanctions compliance and enforcement in your country co-operate with their counterparts in other countries for the purposes of enforcement?
The Swiss authorities co-operate with their foreign counterparts provided that the co-operation is necessary for the implementation of the imposed sanctions regime, the foreign authorities are bound by official secrecy or a corresponding duty of secrecy, and they guarantee the prevention of industrial espionage within the scope of their activities.
18Has your country enacted any blocking legislation in relation to the sanctions measures of third countries? Describe how such legislation operates.
Switzerland does not have restrictions in place that prohibit adherence to other jurisdictions’ sanctions or embargoes. However, the blocking statutes, and secrecy and data protection regulations (see question 11), may restrict compliance with foreign reporting obligations relating to sanctions imposed by other countries or supranational organisations.
19To the extent that your country has enacted any sanctions blocking legislation, how is compliance enforced by local authorities in practice?
Not applicable (see question 18).
Before an internal investigation
20How do allegations of misconduct most often come to light in companies in your country?
The Swiss authorities initiate their investigations in general based on their own observations, criminal or other complaints filed by victims or third parties, reports by whistleblowers, media reports and reports from other authorities, including foreign authorities. The criminal authorities and FINMA are required to report all offences they become aware of in their official capacity. Investigations are also often triggered by suspicious activity and transaction reports filed with the Money Laundering Reporting Office of Switzerland.
21Does your country have a data protection regime?
The basis of the data protection regime in Switzerland is the FDPA, which is applicable when personal data is processed in Switzerland by a federal authority or a private person (individual or entity). Personal data is defined as all information relating to an identified or identifiable person (individual or entity).
The FDPA requires, inter alia, that personal data only be processed lawfully, in good faith, in a proportionate manner and transparently. Any data processing that does not comply with these processing rules constitutes a breach of the data subject’s personality rights. Such breaches are unlawful unless they are justified by the consent of the data subject, by an overriding private or public interest, or by a statutory provision of Swiss law.
The FDPA is currently under revision to bring it into alignment with the revised data protection regime of the European Union.
In addition, there are a number of additional statutory provisions that regulate or prohibit the process or disclosure of data (e.g., Swiss bank secrecy, professional secrecy, employment law).
22To the extent not dealt with above at question 8, how is the data protection regime enforced?
The FDPIC is the relevant authority if federal authorities, individuals or entities process personal data in Switzerland. At the moment, the FDPIC only has limited powers; specifically, it has no enforcement powers and cannot impose any fines or sanctions. The FDPIC may issue recommendations that a specific method of data processing be amended or abandoned. If the party concerned does not follow the recommendation or rejects it, the FDPIC may file an action with the Federal Administrative Court. The Court’s decision may be challenged before the Federal Supreme Court.
If an individual or entity wilfully fails to comply with its information, registration or co-operation obligation under the FDPA, it may receive a fine of up to 10,000 Swiss francs.
23Are there any data protection issues that cause particular concern in internal investigations in your country?
Internal investigations must be set up in compliance with data protection laws. In practice, the most important data protection issue in connection with internal investigations is the provision that personal data may not be disclosed to recipients outside Switzerland if this seriously endangers the privacy of the data subject. Therefore, personal data may only be transferred to a country with inadequate data protection regulation if it justified by a statutory provision of Swiss law, the consent of the data subject, or an overriding public interest (an overriding private interest does not suffice). However, Swiss courts only exceptionally acknowledge the existence of an overriding public interest.
24Does your country regulate or otherwise restrict the interception of employees’ communications? What are its features and how is the regime enforced?
Based on data protection and labour laws, employees must be informed about the method, scope, period and purpose of any visual, audio or electronic monitoring. Consequently, any monitoring that is clandestine, or has not been announced in advance, is prohibited and cannot be justified by an overriding interest of the employer.
In addition, there are several criminal provisions that sanction the breach of privacy.
Dawn raids and search warrants
25Are search warrants or dawn raids on companies a feature of law enforcement in your country? Describe any legal limitations on authorities executing search warrants or dawn raids, and what redress a company has if those limits are exceeded.
In connection with investigations, dawn raids and search warrants are common tools of the authorities.
In general, houses, dwellings and other rooms not publicly accessible may only be searched with the consent of the proprietor unless a search warrant has been issued. Searches not covered by the search warrant are in general unlawful and evidence obtained in connection with such an illegal search is inadmissible unless it is essential to secure a conviction for a serious offence. Other evidence gained from that tainted evidence is in general also not admissible.
Search warrants can be challenged before the competent authorities or courts based on both the legitimacy and the scope of the search.
26How can privileged material be lawfully protected from seizure during a dawn raid or in response to a search warrant in your country?
A request may be made to seal privileged material, but this must be done without delay. The authorities must not search the sealed material, but they may file a request before the competent courts for the removal of the seal. The court will then review whether the claim of privilege is valid. The court’s decision may be challenged before the Federal Supreme Court.
27Under what circumstances may an individual’s testimony be compelled in your country? What consequences flow from such compelled testimony? Are there any privileges that would prevent an individual or company from providing testimony?
Every individual from the age of 15 and with the mental capacity to testify is compelled to testify before the criminal prosecution authorities and criminal courts unless they have the right to refuse testimony because of a personal relationship (e.g., marriage, kinship), for personal protection (self-incrimination) or to protect closely related persons (e.g., spouses, parents, children, siblings), or owing to official secrecy or professional confidentiality (which applies to, for example, lawyers, members of the clergy, physicians).
Whistleblowing and employee rights
28Describe the whistleblowing framework in your country. What financial incentive schemes exist for whistleblowers? What legal protections are in place for whistleblowers?
There is currently no specific whistleblowing framework in existence in Switzerland; in particular, there is no specific protection for whistleblowers. A proposal of the Federal Council to improve the protection for whistleblowers was rejected by the National Council in 2019.
Based on Swiss labour law, employees are bound by a duty of loyalty towards their employers. Therefore, they risk legal consequences if they report potential misconduct publicly or to the authorities.
Swiss courts consider a dismissal in connection with whistleblowing to be abusive only if the employee first reported the offence or misconduct internally but if the management did not take appropriate remedial measures. Under Swiss labour law, even an abusive termination is valid and only entitles the dismissed employee to a financial compensation of up to six months’ salary.
29What rights does local employment law confer on employees whose conduct is within the scope of an investigation? Is there any distinction between officers and directors of the company for these purposes?
Under Swiss labour law, all employees have a general duty of loyalty towards their employers as well as an obligation to account for all their activities and work-product during their period of employment. Based on these provisions, it is recognised that employees have to assist with internal investigations conducted by the employer, including providing relevant documents and information, and participating in interviews. In return, employers have the obligation to safeguard the personal rights of their employees. If employees might be subject to criminal prosecution, it is in general advisable to alert them to the right not to incriminate oneself and to allow them not to respond to specific questions. However, there is no uniform opinion regarding this matter. The same applies to the question whether employees are entitled to have legal representation or a trusted adviser present during interviews.
In general, employees with high-level positions have an increased duty of loyalty towards their employees compared to other employees and thus have increased co-operation obligations in connection with internal investigations.
30Do employees’ rights under local employment law differ if a person is deemed to have engaged in misconduct? Are there disciplinary or other steps that a company must take when an employee is implicated or suspected of misconduct, such as suspension or in relation to compensation?
Under Swiss labour law, an ordinary dismissal is possible at any time without specific grounds, while an immediate dismissal requires a material ground. Based on case law, the employer is generally required to investigate the allegations of potential misconduct before dismissing the employee. Otherwise, the dismissal might be considered as abusive and thus entitle the employee to financial compensation.
In practice, corporations tend to suspend employees from work while the investigation regarding their potential misconduct is ongoing.
31Can an employee be dismissed for refusing to participate in an internal investigation?
An unwarranted refusal to co-operate with an employer’s internal investigation constitutes a breach of contractual duties and may entitle the employer to take disciplinary action against the non-co-operating employee, including, in serious cases, dismissal.
Commencing an internal investigation
32Is it common practice in your country to prepare a document setting out terms of reference or investigatory scope before commencing an internal investigation? What issues would it cover?
It is common practice in Switzerland to prepare an investigation plan prior to the launch of the investigation. The plan should define in particular the subject matter (i.e., the factual and legal topics to be covered) and the scope of the investigation. Additionally, investigation plans often define investigatory steps, timeframes, resources and responsibilities as well as status and final reporting.
33If an issue comes to light prior to the authorities in your country becoming aware or engaged, what internal steps should a company take? Are there internal steps that a company is legally or ethically required to take?
There is no explicit statutory obligation to conduct an internal investigation. However, several provisions in corporate, labour, regulatory and criminal law may require a corporation to investigate potential misconduct so as to avoid liability and sanctions, or to be able to co-operate with the authorities.
Based on their duty of loyalty, employees are in general obliged to report to their superiors if they become aware of potential misconduct within the company. Management is required to inform the board of directors of any misconduct with potential material effects on the corporation.
In recent years, many corporations have introduced whistleblower frameworks that allow employees or third parties to file complaints anonymously.
34What internal steps should a company in your country take if it receives a notice or subpoena from a law enforcement authority seeking the production or preservation of documents or data?
Under Swiss criminal law, it is illegal to interfere with the course of justice, in particular to tamper with or destroy evidence. In addition, corporations have statutory obligations to preserve documents for certain periods (in general for 10 years). Therefore, corporations are required to have the appropriate systems and directives in place and to provide all employees with clear instructions to prevent material from being destroyed that is subject to an order from a law enforcement authority.
35At what point must a company in your country publicly disclose the existence of an internal investigation or contact from a law enforcement authority?
Unless the company is listed on the Swiss stock exchange (see question 73), there is no obligation to inform the public about an internal investigation or an inquiry from a law enforcement authority.
36How are internal investigations viewed by local enforcement bodies in your country?
In general, internal investigations are welcomed, or at least tolerated, by Swiss enforcement authorities as long as they do not negatively affect or impact their own investigations. Often internal investigations are a practical necessity for corporations to be in a position to respond to requests from criminal or regulatory authorities.
37Can attorney–client privilege be claimed over any aspects of internal investigations in your country? What steps should a company take in your country to protect the privilege or confidentiality of an internal investigation?
In general, internal investigations conducted by Swiss attorneys are subject to attorney–client privilege. In two recent decisions, however, the Federal Supreme Court called into question the generality of that rule.
In both cases, the clients were financial institutions and the authorities claimed that the invocation of attorney–client privilege to protect the investigation report and its annexes would constitute a circumvention of statutory documentation obligations under the anti-money laundering legislation. Both decisions have been heavily criticised in the legal community.
Best practice to uphold attorney–client privilege in connection with internal investigations includes a clear definition of the scope of the investigation and a clear separation between fact finding and legal analysis and advice. If the client is subject to anti-money laundering duties, potential documentation obligations should either be part of a separate investigation stream and report, or explicitly excluded from the scope of the investigation conducted by external counsel.
38Set out the key principles or elements of the attorney–client privilege in your country as it relates to corporations. Who is the holder of the privilege? Are there any differences when the client is an individual?
All communications between a client and an attorney (see questions 39 and 40 for certain limitations) and all work-product are subject to attorney–client privilege provided that they are related to the attorney’s typical professional activities (i.e., advising and representing in legal matters). The protection applies irrespective of the location of the correspondence and documents, that is to say the material does not need to reside with the attorney to be privileged.
In criminal proceedings, privilege cannot be invoked if the attorney is charged in the same context.
Pre-existing documents and materials created outside the scope of an attorney’s engagement are not subject to attorney–client privilege.
Both the client and the attorney are deemed holders of the attorney–client privilege. This means that the client can release the attorney from the confidentiality obligation but the attorney may still refuse to disclose privileged information despite the release.
Attorney–client privilege can be invoked by both individual and corporate clients.
39Does the attorney–client privilege apply equally to in-house and external counsel in your country?
The attorney–client privilege only applies to external counsel. Consequently, communications between employees of a corporation and in-house counsel are not privileged in Switzerland.
40Does the attorney–client privilege apply equally to advice sought from foreign lawyers in relation to (internal or external) investigations in your country?
According to Swiss procedural laws, attorney–client privilege only applies to Swiss attorneys and lawyers in EU member states or the European Free Trade Association countries who are authorised to practise in Switzerland.
41To what extent is waiver of the attorney–client privilege regarded as a co-operative step in your country? Are there any contexts where privilege waiver is mandatory or required?
Swiss authorities cannot require a client or the attorney to waive attorney–client privilege. If there is a disagreement as to whether specific material is privileged, the competent courts will decide whether the documents may be used by the authorities. If a corporation or individual under investigation seeks leniency but at the same time heavily relies on attorney–client privilege, this approach might be considered as inconsistent and thus as a lack of co-operation.
42Does the concept of limited waiver of privilege exist as a concept in your jurisdiction? What is its scope?
As a general rule, attorney–client communications or work-product may be disclosed to third parties, including Swiss authorities, without waiving privilege. However, such disclosure may lead to factual loss of privilege if the proceedings are public (e.g., court hearings) or the authority is required to share the information with other Swiss or foreign authorities (e.g., mutual administrative or legal assistance). Therefore, it should be decided carefully on a case-by-case basis whether privileged information will be disclosed to Swiss authorities.
43If privilege has been waived on a limited basis in another country, can privilege be maintained in your own country?
In general, attorney–client privilege waived on a limited basis in another country can generally be maintained in Switzerland. However, the foreign-based recipient of the privileged information may share the information with the Swiss authorities without informing the privilege holder.
44Do common interest privileges exist as concepts in your country? What are the requirements and scope?
The concept of common interest privileges does not exist in Switzerland. Corporations and individuals represented by separate attorneys may share information and work-product with each other without waiving attorney–client privilege under Swiss law.
45Can privilege be claimed over the assistance given by third parties to lawyers?
Attorney–client privilege also applies to third parties assisting a Swiss attorney (or an attorney authorised to practise in Switzerland) if the third parties have been engaged by the attorney and the assistance is related to the attorney’s typical professional activity (e.g., forensic analysis for advising and representing a client in administrative, civil or criminal proceedings).
46Does your country permit the interviewing of witnesses as part of an internal investigation?
There are no specific laws on how to conduct an internal investigation. In general, interviewing witnesses is permitted in Switzerland but interviews may only be recorded by a camera or audio device if all participants agree to the recording. Violation of this principle constitutes a criminal offence.
According to case law, Swiss lawyers may only perform interviews if there is a factual need for the interview, the interview is in the interest of the client, the lawyer avoids any influence on the interviewee and the interview does not impair investigations by the authorities. These requirements are usually met when a lawyer conducts a mere fact-finding interview in connection with an internal investigation.
47Can a company claim attorney–client privilege over internal witness interviews or attorney reports?
Until recently, the commonly held view was that work-product created by external counsel in connection with internal investigations, including witness interviews or attorney reports, is subject to attorney–client privilege. This view has been challenged based on two recent decisions of the Federal Supreme Court (see question 37).
48When conducting a witness interview of an employee in your country, what legal or ethical requirements or guidance must be adhered to? Are there different requirements when interviewing third parties?
At the beginning of the interview, the interviewee should be informed about the background of the investigation, the purpose of the interview, any allegations made against the interviewee, and the intended use of the information provided during the interview (in particular whether the information may be shared with authorities). If external lawyers are present at the interview, it should be emphasised that they represent the interests of the corporation and not those of the interviewee.
The questioning should be fair, objective and based on civility and respect towards the interviewee. If it becomes apparent in the course of the interview that an interviewee may expose himself or herself to criminal prosecution, the interviewee should be informed about the right to refuse to testify and the right to seek legal representation. If the authorities are already investigating the matter, it might be advisable to liaise with them to clarify whether they have any objections to the interview.
In general, the aforementioned best practices apply to both employees and third parties. The main difference is, however, that third parties do not have an obligation to assist with an internal investigation and to participate in an interview.
49How is an internal interview typically conducted in your country? Are documents put to the witness? May or must employees in your country have their own legal representation at the interview?
The structure of an internal interview will depend on the investigation and the person to be interviewed (for details, see questions 46 and 48). Documents will be presented to the interviewee if it is necessary or helpful for the line of questioning.
Whether or not an interviewee has a right to legal representation has not been established by the courts to date.
Reporting to the authorities
50Are there circumstances under which reporting misconduct to law enforcement authorities is mandatory in your country?
There is no general statutory obligation to report potential offences or misconduct to the authorities in Switzerland.
In the financial sector, there are two main reporting obligations. First, supervised entities and individuals must inform FINMA immediately about any incident, including potential offences or misconduct within their activities, that is of material relevance for the supervision. Second, Swiss financial intermediaries are required to report cases of suspected money laundering to the Money Laundering Reporting Office of Switzerland based on applicable Swiss anti-money laundering provisions.
51In what circumstances might you advise a company to self-report to law enforcement even if it has no legal obligation to do so? In what circumstances would that advice to self-report extend to countries beyond your country?
Among the many factors to determine whether to self-report are the likelihood that potential misconduct will become public or otherwise known to the competent authorities and the availability of a leniency regime or co-operation bonus. The decision to self-report should be made from a multinational perspective if the potential misconduct relates to more than one jurisdiction.
52What are the practical steps you need to take to self-report to law enforcement in your country?
Before approaching the authorities, the company should have a sufficient understanding of the relevant facts of the misconduct it plans to report. This often requires a preliminary internal investigation. In practice, it is often advisable to contact the authorities informally through external counsel.
Responding to the authorities
53In practice, how does a company in your country respond to a notice or subpoena from a law enforcement authority? Is it possible to enter into dialogue with the authorities to address their concerns before or even after charges are brought? How?
Corporations are required to comply with notices and subpoenas unless they challenge them before the competent agencies or courts (see also question 54). There is no obligation to liaise with the law enforcement authorities before responding to notices or subpoenas. In practice, however, in many cases it is advisable to enter into a dialogue with the law enforcement authorities to get a better understanding of the background, the scope and the next steps of the investigation. A dialogue can also be helpful to clarify potential misunderstandings or ambiguities. Under certain circumstances, the authorities may be willing to amend their notices or subpoenas (e.g., when it would be practically or technically impossible or far too burdensome to provide the authorities with the information or documents requested).
54Are ongoing authority investigations subject to challenge before the courts?
In criminal law, the initiation of investigations and preliminary proceedings is not subject to challenge before the courts unless the accused person claims that it would constitute a violation of the ne bis in idem doctrine (see question 12). In practice, the initiation of administrative or regulatory investigations cannot be challenged either.
Once the investigations or preliminary proceedings are ongoing, procedural orders, compulsory measures, and decisions may usually be challenged before the competent agencies or courts.
55In the event that authorities in your country and one or more other countries issue separate notices or subpoenas regarding the same facts or allegations, how should the company approach this?
Nowadays, Swiss and foreign authorities increasingly tend to coordinate a course of action in multi-jurisdictional investigations.
Owing to several Swiss legal provisions, corporations and individuals based in Switzerland are subject to several restrictions when co-operating with foreign authorities, in particular if the requested information and documents include personal data of employees, third parties and clients (see question 11). Should a foreign authority issue a notice or subpoena, the company must carefully consider whether it may co-operate, may provide only redacted information, needs to obtain an authorisation from the Swiss authorities or should inform the foreign authority that they have to use the channels of mutual administrative or legal assistance.
56If a notice or subpoena from the authorities in your country seeks production of material relating to a particular matter that crosses borders, must the company search for, and produce material, in other countries to satisfy the request? What are the difficulties in that regard?
In general, the Swiss authorities do not seek production of material that is only available outside Switzerland. In such cases, the Swiss authorities will rather use the available channels of mutual administrative or legal assistance to obtain the material.
57Does law enforcement in your country routinely share information or investigative materials with law enforcement in other countries? What framework is in place in your country for co-operation with foreign authorities?
Switzerland co-operates with foreign authorities based on mutual administrative or legal assistance and police co-operation through Interpol and Europol.
Whether or not assistance is granted depends on whether the applicable requirements are met. In addition, the persons concerned may challenge the decisions of the Swiss authorities to grant assistance before the competent courts.
The sharing of information with Interpol and Europol is in general not subject to challenge before the courts. However, persons may request that information related to them will be amended or deleted.
58Do law enforcement authorities in your country have any confidentiality obligations in relation to information received during an investigation or onward disclosure and use of that information by third parties?
For the confidentiality obligations of the Swiss authorities, see question 70.
59How would you advise a company that has received a request from a law enforcement authority in your country seeking documents from another country, where production would violate the laws of that other country?
If a Swiss authority issues a notice or subpoena that would violate foreign law, the company may challenge the order before the competent authority or court. However, Swiss authorities will usually use the available channels of mutual administrative or legal assistance (see question 56).
60Does your country have secrecy or blocking statutes? What related issues arise from compliance with a notice or subpoena?
Switzerland has several secrecy or blocking statutes that restrict co-operation with foreign authorities (see questions 11 and 55).
61What are the risks in voluntary production versus compelled production of material to authorities in your country? Is this material discoverable by third parties? Is there any confidentiality attached to productions to law enforcement in your country?
In general, there are no legal risks involved if the production is based on an order or subpoena issued by the Swiss authorities.
In respect of voluntary productions, however, corporations and individuals co-operating with Swiss authorities must be careful not to violate applicable data protection, labour and secrecy laws (in particular, business secrecy and bank secrecy). To reduce their exposure to risk, they can either obtain consent from the data subjects and secrecy owners, or redact the protected information.
For confidentiality regarding both voluntary and compelled productions, see question 70.
Prosecution and penalties
62What types of penalties may companies or their directors, officers or employees face for misconduct in your country?
In criminal proceedings, a corporation may face a fine of up to 5 million Swiss francs (for lesser fines in criminal administrative proceedings, see question 2). In addition, the court may order the publication of the judgment and the forfeiture or confiscation of assets.
Depending on the offence committed, directors, officers or employees may be punished with a fine (in general, up to 10,000 Swiss francs), monetary penalty (in general, up to 540,000 Swiss francs) or imprisonment (in general, up to 20 years).
In enforcement proceedings, FINMA has a wide set of enforcement tools. Inter alia, FINMA may confiscate profits generated or losses avoided through serious violations of financial market laws and regulations by supervised entities or individuals in senior functions, prohibit individuals from exercising a professional activity, withdraw licences, and order the liquidation of financial institutions in the event of serious violations. In addition, individuals and entities that do not comply with an order by FINMA may be fined up to 100,000 Swiss francs. Finally, individuals who provide FINMA with false information may face a custodial sentence of up to three years or a monetary penalty.
Some supervisory authorities (e.g., COMCO in antitrust and OFCOM in telecommunication matters) may impose fines of up to 10 percent of the average turnover of the corporation in Switzerland during the previous three years.
63Where there is a risk of a corporate’s suspension, debarment or other restrictions on continuing business in your country, what options or restrictions apply to a corporate wanting to settle in another country?
Debarment from government contracts is currently not a specific sanction under Swiss law. However, if a settlement with a foreign authority may have a relevant effect on the corporation’s liquidity, stability, business or reputation, it is advisable to liaise with the competent supervisory authority prior to the settlement.
64What do the authorities in your country take into account when fixing penalties?
Relevant factors for determining the fines for corporations in connection with any wrongdoing are the seriousness and number of the offences committed in their commercial activities, the damage caused by the offences, the severity of the organisational inadequacies, the economic ability of the corporation to bear the fine, remedial measures taken (e.g., restructuring measures or reparation payments), the insensitivity and quality of the corporation’s co-operation with the authorities during the investigation and previous misconduct.
For individuals, the criminal authorities have to take a variety of aspects into account, inter alia, the culpability (i.e., damage caused, conduct and motives), previous conduct and the personal circumstances of the offender as well as potential mitigation factors (e.g., honourable motives, serious distress, dependency, remorse) and the effect that the sentence will have on the offender’s life.
Overall, we observe a tendency by criminal authorities to impose higher fines and monetary penalties as well as longer custodial sentences for business crimes.
Resolution and settlements short of trial
65Are non-prosecution agreements or deferred prosecution agreements available in your jurisdiction for corporations?
Neither deferred prosecution agreements nor non-prosecution agreements are available in Switzerland, either for corporations or individuals.
66Does your jurisdiction provide for reporting restrictions or anonymity for corporates that have entered into non-prosecution agreements or deferred prosecution agreements until the conclusion of criminal proceedings in relation to connected individuals to ensure fairness in those proceedings?
No, since deferred prosecution agreements and non-prosecution agreements are currently not available in Switzerland (see question 65).
67Prior to any settlement with a law enforcement authority in your country, what considerations should companies be aware of?
According to Swiss case law, journalists are entitled to access settlements with prosecutors unless the access would be contrary to overriding public or private interests. Therefore, corporations should be prepared for media enquiries and coverage once they have reached a settlement. In addition, plaintiffs may use publicly available orders against a corporation to pursue their civil claims because most settlements include an implicit admission of guilt (e.g., payment of reparation or acceptance of the facts).
68To what extent do law enforcement authorities in your country use external corporate compliance monitors as an enforcement tool?
Swiss criminal law currently does not provide external corporate compliance monitors as an enforcement tool.
However, FINMA may engage an independent and suitably qualified person as either an investigating agent or an auditing agent. Investigating agents will be engaged in connection with enforcement proceedings and are responsible for investigating the facts in connection with a potential misconduct or implementing supervisory measures ordered by FINMA. Auditing agents will conduct special audits of supervised individuals and entities.
69Are parallel private actions allowed? May private plaintiffs gain access to the authorities’ files?
In connection with criminal investigations and proceedings against corporations or their (former) employees, individuals or entities claiming damages regularly request to participate as private plaintiffs. If they are admitted to participate in the criminal proceedings as private plaintiffs, they may have access to the case file, be present during hearings of parties and witnesses, ask questions of the parties and witnesses, submit requests for evidence, and file appeals against orders and the final judgment.
In administrative proceedings, however, in particular in enforcement proceedings conducted by FINMA, private plaintiffs are not parties to the proceedings and thus have no access to the case file and will not be informed about the outcome of the investigation and proceedings.
Publicity and reputational issues
70Outline the law in your country surrounding publicity of criminal cases at the investigatory stage and once a case is before a court.
Swiss authorities and their staff are bound by official secrecy and may only disclose non-public information they become aware of during the exercise of their official duties, provided the law allows them to do so.
Investigations and pretrial proceedings conducted by the criminal authorities are not public. Therefore, the criminal authorities must treat as confidential any information gathered or received during the investigations and pretrial proceedings.
Once a case is before a court, the proceedings and the oral passing of judgments are, in general, open to the public.
FINMA does not usually inform the public about pending investigations. It only publishes information on specific proceedings when this is necessary to protect market participants, to correct wrong or misleading media reports or to maintain the reputation of the Swiss marketplace. If there is a serious violation of the law, FINMA may publish its final ruling and disclose personal data about individuals and entities.
COMCO is required to issue an official press release when opening a formal investigation stating the purpose of and parties to the investigation. COMCO may publish its decision but the publications must not reveal any business secrets. Corporations named in the decision receive the decision prior to publication and may ask COMCO to redact further information if this is necessary to protect business secrecy or personal privacy.
71What steps do you take to manage corporate communications in your country? Is it common for companies to use a public relations firm to manage a corporate crisis in your country?
Communications strategies vary from company to company and will need to be assessed for each situation separately, taking into account various factors, such as the complexity and gravity of the issue or crisis. In complex or severe cases, it has become common to build a communications task force, including external counsel and communications experts, that provides guidance on the communications strategy.
72How is publicity managed when there are ongoing related proceedings?
The communication strategy depends on the specific circumstances. In general, corporations tend not to comment on ongoing proceedings or only give very high-level comments.
Duty to the market
73Is disclosure to the market in circumstances where a settlement has been agreed but not yet made public mandatory?
In general, there is no mandatory obligation to disclose to the market when a settlement has been reached. However, depending on the circumstances (e.g., penalty amount, effect on business), the conclusion of a settlement may lead to a disclosure obligation under the ad hoc publicity rules under which publicly listed companies have to disclose any information in their sphere of activity that could have a substantial impact on the market price.
74Do you expect to see any key regulatory or legislative changes emerge in the next year or so designed to address corporate misconduct?
As mentioned in question 65, Switzerland currently has no tools that correspond to deferred prosecution agreements (DPAs) or non-prosecution agreements as known in other jurisdictions. In connection with the planned revision of the Swiss Criminal Procedure Code, the OAG proposed the introduction of a form of DPA (aufgeschobene Anklageerhebung). However, the Swiss Federal Council rejected the proposal in its Official Statement to the Swiss Federal Parliament dated August 2019. Therefore, it is doubtful whether DPAs will be introduced into Swiss law in the foreseeable future.
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