However, the Federal Council rejected the addition of such a procedure to the Criminal Procedure Code in 2019. The main reasons given were that the already strong position of the public prosecutor would be further strengthened by such an instrument without any corresponding control mechanisms or counterbalances, such as judicial approval or appeal options. It was also feared that such a regulation could lead to inconsistencies, particularly if violations of the law did not result in an indictment but in the proceedings being discontinued by mutual agreement. The deterrent effect of criminal law could also be lost if a company were to «buy» impunity through the deferred prosecution.

The deferred prosecution for companies was therefore not introduced in Switzerland as part of the revision of the Criminal Procedure Code. However, discussions on the introduction of alternative procedures for the prosecution of companies have continued since then, with the focus being on the balance between the efficiency of law enforcement and the principles of the rule of law.

Postulate of 25 February 2025

The Legal Affairs Committee of the Council of States has now reopened the debate on the introduction of the deferred prosecution for companies by means of a postulate dated 25 February 2025 (25.3028).

It instructs the Federal Council, with the involvement of the prosecution authorities, courts, the legal profession, business and academia, to examine and set out in a report the advantages and disadvantages of the introduction of the instrument of deferred prosecution for accused companies. The report should also set out how a regulation could be structured in Swiss criminal law and criminal procedure law.

According to a press release dated 26 February 2025, in view of the increasing number of extensive court proceedings in the area of white-collar crime, the Legal Affairs Committee has unanimously decided to instruct the Federal Council to examine the advantages and disadvantages of such an instrument and the conditions for its introduction in Switzerland. The aim is to ensure that such an instrument is effective and compatible with the principles of the rule of law in Switzerland before deciding whether to introduce it.

R​​​​​elevance of the deferred prosecution for companies and next steps

For more than two decades, the Swiss Criminal Code (SCC) has provided for a corporate criminal liability in Art. 102. Since then, companies that have not taken all necessary, appropriate and reasonable measures to prevent a criminal offense are liable to prosecution for economic crimes such as money laundering or corruption. However, the burden of proof for a conviction under Art. 102 SCC is high, which means that in many proceedings the prosecution authorities seek a «de facto» settlement. For their part, the companies concerned have a great interest in the procedure being completed as quickly as possible and without public court proceedings that could damage their reputation. For this reason, the proceedings are often conducted cooperatively in practice and end with a «negotiated» summary penalty order or a discontinuation order. Current procedural law does not provide for any other solutions for an alternative conclusion to proceedings.

The introduction of a deferred prosecution for companies would be welcomed in view of the increasing number of extensive court proceedings in the area of white-collar crime. This instrument is an out-of-court settlement in which the indictment of the company is deferred on the condition that it cooperates with the investigation and concludes an agreement with the public prosecutor's office. The agreement may particularly include the acknowledged facts, a fine, the assets to be confiscated and compensation for the private claimant as well as the elimination of the identified organizational deficiencies (possibly under the supervision of a monitor). The company is thus given the opportunity to postpone the indictment against it and to take improvement measures in addition to paying a fine. If these measures are actually taken, the proceedings are discontinued after a probationary period and the company avoids a conviction and the collateral damage associated with it. The legislator may also provide for court approval of the agreement.

The advantage of the deferred prosecution for companies is that it gives the company the opportunity to avoid the potentially serious side effects of a criminal conviction through appropriate improvement measures. From a public perspective, this approach has the advantage that in many cases a better and more sustainable solution than a criminal conviction can be achieved and also that considerable resources can be saved on prosecution. A look abroad also shows that the DPA has been successfully implemented in various countries such as the USA, France and England.

The postulate has now put the issue of deferred prosecution for companies back on the political agenda. A postulate mandates the Federal Council to examine and report on whether to submit a bill to the Federal Assembly or to take a measure. The Federal Council must take a position on the postulate by the next session and submit a motion to accept or reject it. If the postulate is accepted by the Council in which it was submitted, it is referred to the Federal Council. The Federal Council fulfils the terms of a postulate by stating its views thereon in a separate report, or in the annual report or in a dispatch to a bill of the Federal Assembly. If the postulate is still pending after two years, the Federal Council shall report to the Federal Assembly each year on what it has done in relation thereto and on how it intends to fulfil its mandate. A committee or the Federal Council may request that the postulate be closed if it has been fulfilled or if continuing with the postulate cannot be justified.

It therefore remains to be seen whether the deferred prosecution for companies will also be introduced in Switzerland in the future. The expansion of the Criminal Procedure Code to include an alternative procedure for the prosecution of companies would be welcome and the postulate of the Legal Affairs Committee is a first step in this direction.