The Office of the Attorney General of Switzerland (OAG) has now published its 2024 Annual Report, in which it emphasizes the need for the introduction of such an instrument in Switzerland once again. The OAG points out the need for more effective and future-oriented instruments in the fight against international corporate crime - confirming the growing institutional consensus that Switzerland’s current legal framework is no longer sufficient. According to the Annual Report, the OAG is sticking to its guns even though Parliament and the Federal Council have repeatedly taken an opposing view. The OAG is convinced that, particularly in corporate criminal law, new and tougher instruments are needed in order to combat international corruption more effectively and sustainably (page 29).

In addition to increasing the maximum fine from CHF 5 million for companies that are held liable for committing criminal offences and the introduction of legislation to protect whistleblowers, the OAG continues to consider it essential to introduce the instrument of deferred prosecution in criminal proceedings.

This would mean that companies that themselves report potential cases in which they may be criminally liable (Art. 102 SCC) or that cooperate fully with the prosecution authorities in a criminal investigation would have the option of reaching a settlement which would spare them from conviction. As part of the settlement, it is proposed that companies be required to pay an amount equivalent to the fine and to repay the unlawfully achieved profits. Additionally, companies should provide restitution for the damage caused by their activities. As part of the settlement they should further be obligated to reform their corporate structure in such a way that a repeat of the offense would not be possible in the future. In the opinion of the OAG, the settlement negotiated between the public prosecutor and the company should be approved by a court. It further points out that a change in the law is required for the implementation of the instrument.

In an accompanying press release dated April 3, 2025 the OAG further highlights two milestones in relation to corporate criminal liability: the summary penalty orders imposed on the international commodity trading companies Gunvor and Glencore. Noting however that the protracted nature of such proceedings poses a major challenge and that new legal instruments modelled on the USA’s Deferred Prosecution Agreements (DPA) or the Convention judiciaire d’intérêt public (CJIP) in France would make prosecution in this field more efficient and effective.

The OAG's Annual Report and the accompanying press release reinforce the points raised in our March Newsflash and show that the OAG is not backing down, even after previous political opposition to an introduction of a deferred prosecution in criminal proceedings. It is becoming increasingly evident that a balanced, transparent, and pragmatic system that can address corporate misconduct efficiently is needed in Switzerland, without compromising the rule of law.

What's Next?

The ball is now in the Federal Council’s court. As it prepares its official response to the postulate of 25 February 2025, it will need to consider not only the growing procedural backlogs in white-collar cases, but also the prosecutorial realities on the ground where “de facto” settlements already occur in the absence of a formal framework.

Switzerland has long prided itself on its legal certainty and integrity in international cooperation. But to maintain that reputation, especially amid growing global scrutiny, it must now act to modernize its legal tools for tackling complex economic crime.