Corporate criminal liability

Article 102 SCC

For most of the twentieth century, Swiss criminal law followed the maxim societas delinquere non potest: only natural persons could commit crimes. The introduction of corporate criminal liability in 2003 broke with this tradition, largely in response to international obligations under the conventions against corruption and the financing of terrorism.¹ The provision, now Article 102 SCC, contains two distinct forms of liability that must be carefully distinguished.

The first form, in paragraph 1, is subsidiary. Where a felony or misdemeanour is committed within an undertaking in the exercise of commercial activities in accordance with the objects of the undertaking, and the offence cannot be attributed to any specific natural person because of the inadequate organisation of the undertaking, the offence is attributed to the undertaking itself. The second form, in paragraph 2, is primary or concurrent. For a catalogue of offences, which includes participation in a criminal organisation, the financing of terrorism, money laundering, the bribery of Swiss public officials, the granting of advantages, the bribery of foreign public officials and active private bribery, the undertaking is punished irrespective of the criminal liability of natural persons if it failed to take all the reasonable organisational measures required to prevent such an offence. In both cases the fine may reach CHF 5 million.²

Paragraph 2 is the provision that matters in practice. It creates what is in substance a failure-to-prevent offence, comparable in function to section 7 of the UK Bribery Act 2010, although with a much lower maximum penalty. The undertaking is liable for its own organisational fault. The prosecution must nevertheless prove that the predicate offence, such as the bribe or the act of laundering, was actually committed within the undertaking. The Federal Supreme Court confirmed this requirement in a case concerning Swiss Post, in which the company was acquitted because no individual within the organisation was shown to have committed the underlying money laundering offence.³ The requirement protects companies against liability for merely hypothetical offences. It also makes the prosecution of a company dependent on proof of an individual’s act, which, as the Credit Suisse Bulgaria case shows, may have unexpected consequences.

The fine of CHF 5 million is modest by international standards. Swiss enforcement nevertheless reaches far higher amounts, because the fine is combined with the confiscation of the proceeds of the offence or, where these are no longer available, with a compensatory claim of the state under Article 71 SCC. In the corporate foreign bribery cases of the last fifteen years, the compensatory claim has regularly exceeded the fine by a factor of ten or more.

The cases

The first significant application of Article 102 paragraph 2 in a foreign bribery case came in November 2011. The OAG convicted Alstom Network Schweiz AG, formerly Alstom Prom AG, by summary penalty order of failing to prevent the bribery of foreign public officials. The company was ordered to pay a fine of CHF 2.5 million and a compensatory claim of CHF 36.4 million. The investigation had lasted about two years.⁴ The Alstom case established the pattern that the OAG was to follow for more than a decade: a corporate conviction by summary penalty order, a fine close to or below the statutory maximum and a compensatory claim that captures the profits of the corrupt business.

The pattern was repeated in the commodity sector, which is concentrated in Geneva, Zug and Lugano with a considerable presence in Zurich. In October 2019 the OAG convicted Gunvor, a commodity trader with its principal seat in Geneva, of failing to take all required and reasonable organisational precautions to prevent its employees and agents from bribing public officials in the Republic of the Congo and Côte d’Ivoire in order to gain access to their oil markets. Gunvor was ordered to pay a fine of CHF 4 million and a total of about CHF 94 million.⁵ In August 2024 Glencore International AG, headquartered in Baar near Zug, received a summary penalty order for failing to prevent a business partner from bribing a Congolese public official in 2011 in connection with the acquisition of minority stakes in two mining companies. The OAG imposed a fine of CHF 2 million and a compensatory claim of USD 150 million. Glencore stated that it did not accept the findings but had decided not to challenge the order in the interest of resolving the matter.⁶

Trafigura chose a different path and went to trial. In December 2024, for the first time, a Swiss commodity company stood trial before the Federal Criminal Court on charges of corporate liability for bribery. On 31 January 2025 the Criminal Chamber convicted Trafigura of failing to prevent the bribery of an Angolan official between 2009 and 2011, in which about CHF 5 million had been paid by high-ranking Trafigura employees and intermediaries to secure oil business. The court found that adequate anti-corruption oversight of intermediaries had been lacking.⁷ Trafigura was fined CHF 3 million and ordered to pay a compensatory claim of about USD 145 million, while its former chief operating officer received a sentence of thirty-two months, of which twelve were to be served.⁸ The judgment was the first in which a Swiss court, and not the OAG alone, set out in a public trial the organisational standards expected of a multinational trading company.

Banks have faced Article 102 in money laundering cases. In December 2021 the Federal Criminal Court convicted Falcon Private Bank of failing to prevent money laundering in connection with the Malaysian 1MDB affair and imposed a fine of CHF 3.5 million and a compensatory claim of some CHF 7 million. The Appeals Chamber acquitted the bank in 2023.⁹ In August 2025 the OAG convicted Bank J. Safra Sarasin AG by summary penalty order in connection with the Brazilian Lava Jato affair around Petrobras. Between November 2011 and July 2014 the bank and one of its former wealth managers had been involved in laundering about USD 71 million, of which USD 42.5 million was actually transferred and USD 28.5 million was rejected. The bank was fined CHF 3.5 million under Article 102 paragraph 2 in conjunction with Article 305bis SCC and had already paid CHF 16 million to Petrobras by way of settlement. The former wealth manager received a suspended sentence of six months.¹⁰

The most recent judgment at the time of writing concerns the Geneva private bank Lombard Odier. The Karimova case, one of the largest criminal cases in Swiss history, concerns the network, known as the “Office”, through which Gulnara Karimova, the daughter of the former president of Uzbekistan, allegedly extorted bribes from telecommunications companies seeking access to the Uzbek market. The investigation had been opened in 2012. The trial began in Bellinzona on 27 April 2026, after the court had, for the first time in Swiss history, conducted hearings abroad by questioning Karimova in Tashkent.¹¹ On 27 July 2026 the Criminal Chamber fined Lombard Odier CHF 3 million for insufficient organisational precautions against money laundering and sentenced a former account manager to a suspended custodial sentence of twenty-four months for aggravated money laundering. The proceedings against Karimova herself were discontinued because the limitation period would expire before she could be released or extradited from Uzbekistan, where she is detained. More than CHF 400 million in assets were ordered confiscated. Lombard Odier announced an appeal.¹²

Credit Suisse and the Bulgarian case

No case illustrates the difficulties of Article 102 paragraph 2 more clearly than the prosecution of Credit Suisse for failing to prevent the laundering of the proceeds of a Bulgarian cocaine trafficking organisation between 2004 and 2008. On 27 June 2022 the Criminal Chamber of the Federal Criminal Court convicted the bank, a former employee, a Bulgarian national and a former wealth manager. Credit Suisse was fined CHF 2 million for deficiencies in its client relationships with a criminal organisation and in the enforcement of its anti-money laundering rules. The court also ordered the confiscation of assets of more than CHF 12 million and a compensatory claim of more than CHF 19 million.¹³

After UBS absorbed Credit Suisse in 2023, the appeal became a test of two questions that Swiss law had never answered. The first was whether corporate criminal liability passes to the legal successor after a merger. The second was whether a company can be convicted under Article 102 paragraph 2 when the individual whose act constitutes the predicate offence can no longer be tried. On 26 November 2024 the Appeals Chamber acquitted UBS. The Federal Supreme Court then annulled the separation of the proceedings against the former employee, who had died in the meantime, in January 2025, and annulled the appeal judgment in July 2025, remitting the case. On 3 March 2026 the Appeals Chamber acquitted UBS again, holding that the bank’s alleged violation of Article 102 paragraph 2 could not be examined without infringing the presumption of innocence of the deceased employee whose conduct formed the basis of the charge.¹⁴

The result is paradoxical. Article 102 paragraph 2 was designed to hold companies liable irrespective of the liability of natural persons, and yet the Bulgarian case ended because the natural person whose act was required could no longer be judged. For Zurich banks, the lesson is double-edged. On the one hand, the case shows that the courts insist on strict proof of the predicate offence within the undertaking. On the other hand, the investigation, trial and appeals consumed the better part of two decades and absorbed considerable resources on both sides, which in itself is a sanction of a kind.

Criticism and statistics

Corporate criminal liability in Switzerland has been criticised both for its design and for its enforcement. In its Phase 4 report on Switzerland, adopted on 15 March 2018, the OECD Working Group on Bribery found that since the Phase 3 evaluation of December 2011, six natural persons and five legal persons had been convicted of foreign bribery in five cases. It expressed serious reservations about the level of sanctions, stating that the sanctions imposed were not effective, proportionate or dissuasive as the Convention requires. It also urged Switzerland to adopt legislation protecting private-sector employees who report suspicions of bribery.¹⁵

Transparency International Switzerland reached similar conclusions in a study published in March 2021. It counted four convictions under paragraph 1 and eight under paragraph 2 between 2011 and 2019, all of them by summary penalty order and none after a public trial. The fines ranged from CHF 1 to CHF 4.5 million, while the compensatory claims ranged from CHF 70,000 to more than CHF 200 million. The organisation recommended raising the maximum fine, introducing deferred prosecution agreements, expanding the catalogue of offences in paragraph 2 and strengthening the protection of whistleblowers.¹⁶ Official statistics on corporate convictions do not exist, because convicted companies are not entered in the criminal records register. Police crime statistics record only the companies accused: 179 in 2023 and 300 in 2024, with money laundering as the most frequent offence.¹⁷

Since 2021, the picture has changed in one respect. The Trafigura, Credit Suisse, Falcon and Lombard Odier cases were decided after public trials, so that the Federal Criminal Court has begun to develop a body of case law on what the “reasonable organisational measures” of Article 102 paragraph 2 require. Other cases have added to it, including a CHF 1 million fine against the Lausanne security-ink company SICPA for deficiencies in its anti-corruption compliance.¹⁸ The courts have looked at the existence and implementation of anti-corruption policies, the vetting and monitoring of intermediaries, the escalation of red flags, the independence of compliance functions and the response to warnings. For a company with activities in Zurich, the Article 102 compliance programme has become an integral part of corporate governance.

Notes

1. Martin Hilti, Strafbarkeit des Unternehmens, Transparency International Switzerland, March 2021, https://transparency.ch/wp-content/uploads/2021/02/Strafbarkeit_des_Unternehmens.pdf: corporate criminal liability entered into force on 1 October 2003 as Art. 100quater SCC and was renumbered Art. 102 with effect from 1 January 2007. The study relates its introduction to the corporate liability standards of the OECD, Council of Europe and UN conventions against corruption. ↩
2. SCC, Art. 102 paras. 1–2, https://www.droit-bilingue.ch/de-fr/3/31/311.0-102-133.html. Paragraph 3 provides that the court assesses the fine in particular according to the seriousness of the offence, the seriousness of the organisational deficiencies and the loss or damage caused, and the economic ability of the undertaking to pay. Paragraph 4 defines undertakings to include legal entities under private law, legal entities under public law with the exception of territorial corporations, companies and sole proprietorships. ↩
3. Global Investigations Review, “Switzerland: strategy and defence in corporate criminal liability”, Europe, Middle East and Africa Investigations Review 2026, accurate as of 11 March 2026, https://globalinvestigationsreview.com/review/the-european-middle-eastern-and-african-investigations-review/2026/article/switzerland-strategy-and-defence-in-corporate-criminal-liability. The article describes the Swiss Post judgment as the only ruling of the Federal Supreme Court on Art. 102 para. 2 SCC. ↩
4. Swiss Federal Council / OAG, press release “Strafverfahren gegen Alstom-Gesellschaften abgeschlossen”, 22 November 2011, https://www.admin.ch/de/nsb?id=42300. The conviction was based on Art. 102 para. 2 SCC in conjunction with Art. 322septies SCC. ↩
5. OAG, press release on the conviction of Gunvor, 17 October 2019, https://www.admin.ch/de/nsb?id=76725. ↩
6. swissinfo.ch, “Bundesanwaltschaft verurteilt Glencore zu Millionenstrafe”, 5 August 2024, https://www.swissinfo.ch/ger/bundesanwaltschaft-verurteilt-glencore-zu-millionenstrafe/86110001. ↩
7. SRF, “Trafigura vor Gericht: Erstmals Schweizer Rohstoffkonzern wegen Korruption verurteilt”, 31 January 2025, https://www.srf.ch/news/schweiz/trafigura-vor-gericht-erstmals-schweizer-rohstoffkonzern-wegen-korruption-verurteilt. The former head of an Angolan oil company received a sentence of thirty-six months, fourteen of them to be served. ↩
8. JURIST, “Switzerland court convicts Trafigura and former executive for bribing Angola official”, 31 January 2025, https://www.jurist.org/news/2025/01/switzerland-court-convicts-oil-executive-and-company-for-bribery-of-foreign-official/. The article notes that an appeal would be heard by the Appeals Chamber of the Federal Criminal Court. ↩
9. finews.ch, “Gericht spricht Ex-Falcon-CEO frei – und verurteilt Bank”, 15 December 2021, https://www.finews.ch/news/banken/49236-gericht-spricht-ex-falcon-ceo-frei-und-verurteilt-bank, on the conviction in connection with the 1MDB affair, the fine of CHF 3.5 million and the compensatory claim of CHF 7 million; cash.ch, “Freisprüche im Fall der früheren Falcon Private Bank”, 3 July 2023, https://www.cash.ch/news/freispruche-im-fall-der-fruheren-falcon-private-bank-616596, on the acquittal of the bank and its former CEO by the Appeals Chamber. The Global Investigations Review article cited above describes Falcon as the first bank convicted under Art. 102 para. 2 SCC. ↩
10. OAG, press release “Bank J. Safra Sarasin AG und eine ihrer ehemaligen Vermögensverwalterinnen mit Strafbefehl verurteilt”, 22 August 2025, https://www.bundesanwaltschaft.ch/de/newnsb/2y8oBsJ36EJLYA723v50c. The release notes that access to e-mail data of the accused had delayed the investigation by about five and a half years. ↩
11. finews.com, “Money Laundering and More: Karimova Case Begins at the Federal Criminal Court”, April 2026, https://www.finews.com/news/english-news/71965-gulnara-karimova-usbekistan-bundesstrafgericht-bellinzona-justiz-strafverfahren-lombard-odier-geldwaescherei-swissbanking-finanzplatz-schweiz-2. ↩
12. swissinfo.ch, “Fall Karimowa: Busse von 3 Millionen Franken für Genfer Privatbank”, 27 July 2026, https://www.swissinfo.ch/ger/fall-karimowa:-busse-von-3-millionen-franken-f%C3%BCr-genfer-privatbank/91804715. The bank stated that it had maintained solid internal controls and had itself filed a report with MROS. ↩
13. finews.com, “UBS Fights to Break Free from Credit Suisse’s Money Laundering Past”, 1 October 2024, https://www.finews.com/news/english-news/64596-ubs-money-laundering-credit-suisse-process-bulgarian-mafia-financeplace-switzerland. The article also reports UBS’s unsuccessful argument that there was no legal basis for transferring the criminal liability of Credit Suisse to its acquirer. The period of the offences, 2004 to 2008, is given in AML Intelligence, “Latest: Swiss prosecutor appeals UBS acquittal in Credit Suisse money laundering case”, May 2025, https://www.amlintelligence.com/2025/05/latest-swiss-prosecutor-appeals-ubs-acquittal-in-credit-suisse-money-laundering-case/. ↩
14. Federal Criminal Court, press release of 4 March 2026 on judgment CA.2025.17 of 3 March 2026, https://www.bstger.ch/de/media/comunicati-stampa/2026/2026-03-04/1543.html. The release lists the earlier decisions: judgment SK of 27 June 2022, judgment CA.2023.20 of 26 November 2024, and the Federal Supreme Court judgments 7B_489/2024 of 6 January 2025 and 6B_227/2025 of 7 July 2025. ↩
15. OECD Working Group on Bribery, Implementing the OECD Anti-Bribery Convention, Phase 4 Report: Switzerland, published by SECO, https://www.seco.admin.ch/dam/de/sd-web/cTfMoa48MqlZ/Switzerland-Phase-4-Report-ENG.pdf. The report also criticised conflicting judicial interpretations of the notion of foreign public official in relation to employees of state-owned enterprises. ↩
16. Transparency International Switzerland, Strafbarkeit des Unternehmens: Lückenhafte Regelung, mangelhafter Vollzug, March 2021, https://transparency.ch/wp-content/uploads/2021/02/Strafbarkeit_des_Unternehmens.pdf. ↩
17. Global Investigations Review, “Switzerland: strategy and defence in corporate criminal liability” (cited above). The same article gives the fine of CHF 4.5 million against Odebrecht as the highest imposed by summary penalty order. ↩
18. Frank and Markwalder, “Länderbericht Schweiz” (cited above), which lists the SICPA conviction among the notable cases of the reporting period. ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of September 2025.