Ending proceedings without a full trial

The summary penalty order

The great majority of criminal cases in Switzerland end with a summary penalty order (Strafbefehl), a written conviction issued by the prosecutor without a trial. Under Article 352 StPO, a prosecutor may issue such an order where the accused has admitted the facts in the preliminary proceedings or where the facts have otherwise been sufficiently established, and where the penalty does not exceed a fine, a monetary penalty of up to 180 daily penalty units or a custodial sentence of up to six months. The order becomes a final judgment unless the accused or another entitled party files an objection within ten days, in which case the prosecutor may maintain the order and forward the case to the court. According to the figures cited by Sabine Gless, well over ninety per cent of cases that are not discontinued end with a summary penalty order, with shares of ninety-five per cent in Fribourg and ninety-eight per cent in Basel-Stadt.¹

For companies, the summary penalty order has acquired a function that its designers did not foresee. Because a fine under Article 102 SCC is a Busse, it can be imposed in a summary penalty order up to the statutory maximum of CHF 5 million, while compensatory claims and confiscation can be ordered in the same instrument. The OAG has therefore used the summary penalty order as a de facto settlement instrument, negotiating the facts, the fine and the compensatory claim with the company and then issuing an order that the company accepts. Alstom, Gunvor, Glencore and Safra Sarasin were all concluded in this way. The procedure offers companies speed, a degree of confidentiality in the negotiations and a predictable outcome. Its disadvantage, from the perspective of the rule of law, is that a judgment of considerable economic significance is issued by the prosecuting authority itself without any judicial review of the negotiated result. Both the OECD and Transparency International have criticised this practice. The OECD observed that an instrument originally designed for minor offences had become the primary enforcement tool in foreign bribery cases.²

The 2024 revision added a safeguard for individuals. A prosecutor who intends to impose a custodial sentence by summary penalty order must now hear the accused in person, which responds to one of the main criticisms of the procedure. It does not affect the corporate settlements, since companies can only be fined.

Abbreviated proceedings

The second consensual instrument is the abbreviated procedure (abgekürztes Verfahren) under Articles 358 to 362 StPO, which draws on earlier cantonal models from Zug, Basel-Landschaft and Ticino and, more distantly, on American plea bargaining. The accused may request it at any time before the indictment if he admits the facts that are essential for the legal assessment and recognises the civil claims at least in principle. The procedure is excluded where the prosecution seeks a custodial sentence of more than five years. The prosecutor and the accused agree on an indictment containing the charges, the sentence and the civil consequences, which is then submitted to the court. The court holds a hearing without taking evidence, at which the accused must confirm the admission, and examines whether the procedure was lawful and appropriate, whether the charges correspond to the file and whether the sanctions are appropriate. If the court approves, it issues a judgment in the terms of the indictment. If it rejects the agreement, the case returns to the prosecutor for ordinary proceedings.³

In economic crime cases, the abbreviated procedure is used above all for individuals facing sentences beyond the limit of the summary penalty order. A former bank employee who has laundered money for a client, or an asset manager who has misappropriated client funds, may prefer a negotiated sentence of three years, partly suspended, to the uncertainty of a contested trial. The prosecutor, for his part, avoids a lengthy trial and obtains a conviction that can be used against co-accused or against the company. Because the court must approve the agreement and may reject one it considers too lenient, the procedure contains a judicial check that the summary penalty order lacks.

Reparation under Article 53 SCC

A third route to the end of a case without conviction is reparation (Wiedergutmachung) under Article 53 SCC. The provision allows the authorities to refrain from prosecution or punishment where the offender has made good the damage or undertaken all reasonable efforts to do so. In the years before 2019, some prosecution authorities, notably in Geneva, used the provision to close cases against companies in exchange for substantial payments, a practice that attracted criticism because it allowed wealthy offenders to buy their way out of a conviction. The legislature responded by restricting the provision. Under the revised text, reparation is available only where the appropriate sanction would be a suspended custodial sentence of no more than one year, a suspended monetary penalty or a fine, and where the offender has admitted the facts.⁴ The OAG had already declared in 2017 that it regarded Article 53 as unsuitable for foreign bribery cases involving international companies.⁵

The absence of deferred prosecution agreements

Swiss law does not provide for deferred prosecution agreements (DPAs) of the kind used in the United States since the 1990s, available in England and Wales since 2014 and in France, in the form of the convention judiciaire d’intérêt public, since 2016.⁶ A company under investigation in Switzerland can end the proceedings either by accepting a conviction, whether by summary penalty order or after trial, or by obtaining a discontinuation. There is no intermediate path by which the company acknowledges the facts, pays a financial penalty, submits to a monitorship and avoids a conviction if it complies with its obligations for a defined period.

The OAG has advocated such an instrument for years. In March 2018 it proposed during the consultation on the revision of the Criminal Procedure Code a new Article 318bis StPO, under which the prosecution could defer the prosecution of a company that acknowledged the facts, paid a fine, accepted the confiscation of proceeds and submitted to a monitoring period of two to five years. The Federal Council declined to include the proposal in its draft of August 2019. It reasoned that the already strong position of the prosecutor would be further strengthened without a counterweight or control mechanism. The sentencing of a company to a fine without a finding of guilt would, in its view, be foreign to the existing legal framework.⁷ The Attorney General returned to the subject in the activity report for 2024, observing that Switzerland lacks the statutory instruments for deferred prosecution comparable to those available in other jurisdictions.⁸

The debate reflects different conceptions of the criminal process. Supporters of a DPA argue that it would encourage self-reporting and cooperation, allow a company to keep public tenders and licences that a conviction would endanger, and bring Switzerland into line with its closest partners in the fight against corruption. The trilateral alliance with the Serious Fraud Office and the Parquet national financier, both of which work with DPA-type instruments, has made the difference more visible. Opponents point to the tradition of legality in Swiss criminal procedure, which obliges the prosecutor to prosecute every offence of which he becomes aware, and to the danger that large companies would obtain privileged treatment unavailable to individuals. The summary penalty order, in their view, already provides the necessary flexibility. Until Parliament creates such an instrument, the summary penalty order remains the functional substitute in Swiss corporate cases.

For international companies, the absence of a DPA has a practical consequence for the coordination of global resolutions. A company that settles with the US Department of Justice by DPA and with the Serious Fraud Office by DPA may still face a conviction in Switzerland if the facts also fall under Swiss jurisdiction. Counsel therefore often seek to negotiate the Swiss summary penalty order at the same time as the foreign agreements, so that the conviction in Switzerland is at least predictable in its terms and timing.

Notes

1. Sabine Gless, “Der Strafbefehl – in der Schweizerischen Strafprozessordnung”, University of Basel, https://ius.unibas.ch/fileadmin/user_upload/ius/09_Upload_Personenprofile/01_Professuren/Gless_Sabine/Strafbefehl_in_der_CH_StPO.pdf. The author criticises the lack of a mandatory hearing, the risk of error in a procedure without contradictory examination, and the uncertain compatibility of the procedure with Art. 6 ECHR. ↩
2. Emma Sanchez, “OECD Report Criticizes Switzerland’s Weak Foreign Bribery Enforcement”, National Law Review, 29 September 2025, https://natlawreview.com/article/switzerland-foreign-bribery-report. The article summarises the OECD’s concerns about summary penalty orders and the absence of whistleblower protection. ↩
3. Bianca Natalie Erni, Das abgekürzte Verfahren (Art. 358–362 StPO), 2014, https://swissparalegal.ch/wp-content/uploads/theses/das-abgekuerzte-verfahren.pdf. The author also discusses criticism that the procedure may produce unequal treatment of co-accused and convictions despite insufficient evidence. ↩
4. Sonja Pflaum, “Revision der Wiedergutmachungsnorm (Art. 53 StGB)”, 2020, https://edoc.unibas.ch/81990/1/20210215142104_602a75402ab16.pdf. The author notes that the threshold was lowered from two years to one year and that the requirement to admit the facts is in some respects broader than the earlier case law. The entry into force of the revision on 1 July 2019 is stated from secondary reports. ↩
5. Jürg Wernli and Déborah Carlson-Burkart, “Criminal proceedings against companies in Switzerland: still no deferred prosecution agreement”, International Bar Association, https://www.ibanet.org/article/06a90d36-e768-4926-9e6b-bb9a236c4470. ↩
6. United Kingdom: Crime and Courts Act 2013, Schedule 17 (deferred prosecution agreements), in force since 24 February 2014 (S.I. 2014/258), https://www.legislation.gov.uk/ukpga/2013/22/schedule/17. France: loi n° 2016-1691 du 9 décembre 2016 (Sapin II), which created the convention judiciaire d’intérêt public, Agence française anticorruption, “Convention judiciaire d’intérêt public”, https://www.agence-francaise-anticorruption.gouv.fr/fr/convention-judiciaire-dinteret-public. ↩
7. Wernli and Carlson-Burkart, IBA article (cited above). ↩
8. OAG, Tätigkeitsbericht 2024 (cited above). ↩

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.