The OECD Working Group on Bribery has just completed a review of Switzerland's enforcement of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and related instruments. The Working Group welcomes the significant level of enforcement by the Federal Office of the Attorney General. Switzerland has cracked down on the bribery of foreign public officials in recent years. Since the last evaluation in 2012, six individuals and five companies have been convicted and a large number of foreign bribery cases are under investigation (137 investigations for money laundering and foreign bribery in 2016 compared to 24 in 2011).
Nevertheless, the Working Group considers that Switzerland should do even more to prosecute companies and apply tougher sanctions. Private sector whistleblowers, who are exposed to criminal prosecution as a result of reporting, should also be protected, according to a new OECD report. While court decisions supporting enforcement of foreign bribery were noted, several court decisions have demonstrated a restrictive interpretation of both this offence and corporate liability.
The Group made a range of recommendations to Switzerland, including to:
- adopt urgently an appropriate legal framework to protect private sector whistleblowers from any discriminatory or disciplinary action;
- ensure that the sanctions imposed in practice for foreign bribery against natural and legal persons are effective, proportionate and dissuasive;
- ensure broader and more systematic publication of concluded foreign bribery cases, in accordance with the legal framework;
- adopt urgently the reform of the legislation that governs mutual legal assistance currently underway with the aim of removing certain procedural obstacles and formalising proactive MLA.
The report also draws attention to the more positive aspects of Switzerland's efforts to fight foreign bribery. In particular, the Working Group additionally commends Switzerland for its proactive policy on seizure and confiscation that produces results. It furthermore highlights Switzerland’s active involvement in mutual legal assistance and its adoption of practices to make co-operation even more effective. Regarding detection of foreign bribery, the Working Group commends the key role played by the MROS, the Swiss Financial Intelligence Unit, in detecting foreign bribery and would like to see it continue.
Switzerland's Phase 4 report was adopted by the OECD Working Group on Bribery on 15 March 2018. The report, in French and English, lists the recommendations the Working Group made to Switzerland on pages [75-82], and includes an overview of recent enforcement activity and specific legal, policy, and institutional features of Switzerland's framework for fighting foreign bribery. Switzerland will submit an oral report to the Working Group in March 2019 detailing the adoption of appropriate legislation to protect private sector whistleblowers from any discriminatory or disciplinary action. In accordance with the standard procedure, Switzerland will submit a written report to the Working Group within two years (March 2020) on the implementation of all recommendations. This report will also be made publicly available.
The report is part of the OECD Working Group on Bribery’s fourth phase of monitoring, launched in 2016. Phase 4 looks at the evaluated country’s particular challenges and positive achievements. It also explores issues such as detection, enforcement, corporate liability, and international cooperation, as well as covering unresolved issues from prior reports.