Crinimal liability of legal entities

In the area of criminal law, the main focus is primarily on natural persons. In Switzerland, the criminal liability of companies was only introduced in 2003, in a two-tier model with subsidiary and original liability. Companies can be held responsible if they have failed to prevent criminal offences due to “organisational deficiencies”. This regulation can be considered rather restrained in international comparison. In Switzerland, criminal convictions of companies are mainly based on organisational deficiencies. This is due to the two-tier model laid down in Art. 102 SCC to regulate the criminal liability of companies.

The so-called subsidiary liability applies to all offences committed within a company, but which cannot be attributed to a specific natural person due to a deficient organisation of the company. Primary liability thus lies with the natural person and the enterprise is only liable if its organisational structure is so inadequate that the person responsible cannot be identified. The company is therefore not held responsible for the commission of an offence in the course of its business, but for its inability to identify the person responsible for the offence.

Primary or parallel corporate liability applies to precisely defined offences, including support for a criminal organisation, terrorist financing, money laundering, bribery and corruption of Swiss public officials, bribery of foreign public officials and bribery of private individuals. In these cases, the company is liable if it has not taken all necessary and reasonable organisational measures to prevent these offences. The accusations are thus directed at the fact that it was not possible to prevent the offence due to organisational deficiencies. Regardless of the criminal liability of a natural person, both the natural person and the company can be convicted.

The necessary and reasonable organisational measures include the duties of care regulated by civil law in the selection of employees and the organisation and supervision of operations. In addition, customary industry standards and international “soft law”, which includes non-binding agreements or declarations of intent, apply. In principle, the company management is obliged to continuously analyse the operational hazards and risks and to take appropriate protective measures. The law thus clearly requires a risk-based approach.