Chilean air force in 1994.426 The investigation was initiated in 2011 and has involved coordination between Swiss and Chilean prosecutors.427
Access to Information There is adequate access to information on numbers of foreign bribery cases, while further details are not accessible. The authorities do not provide details on on-going investigations. They only exceptionally provide details on cases concluded with a summary punishment order or an order to dismiss. Data from the cantons is not included in the government statistics system and information on concluded cases does not disclose court decisions, their reasoning or the amounts of any fines, prison sentences, or compensation for damages ordered.
Inadequacies in Legal Framework The limitation of fines to 5 million Swiss franc (US$5.3 million) for legal entities remains a key inadequacy in the legal framework. This amount is too small to be an effective deterrent to foreign bribery. However, disgorgement of profits imposed by the Federal Prosecutor’s Office is welcome but still insufficient. The OECD Working Group on Bribery, in its Phase 3 report of December 2011, recommended that, although the majority of federal officials are already obligated to report suspicions of foreign bribery, that this obligation be extended to further agencies as well as to the cantonal level.428
Inadequacies in Enforcement System Though there has been some progress under the leadership of the federal prosecutor’s office towards forming a more centralised enforcement system, it remains still quite decentralised, which is a major weakness. There is also a lack of whistleblower protection, as confidential channels are not available for whistleblowers to voice concerns, report violations or obtain advice; compliance officers do not have adequate independence and direct access to company boards of directors; and whistleblowers are not sufficiently protected against reprisals. The Phase 3 report noted that the low number of convictions of legal persons was likely due in large part to law enforcement authorities being unaccustomed to using the provisions concerning corporate criminal liability.429
Recent Developments There has been a significant increase in the amount of resources dedicated towards preventing and prosecuting foreign bribery. As mentioned above, there has also been considerable improvement in the centralisation of these efforts.
Recommendations for Priority Actions Ensure better protection of whistleblowers, through the drafting and passage of related legislation. Include in government statistics data from the cantons. Disclose court decisions and reasoning as well as the amounts of any fines, prison sentences, or compensation for damages ordered. Improve international cooperation and coordination of enforcement at the international level.
426 El Mostrador, March 28 2012, “Justicia suiza congeló más de 13 millones de dólares retenidos en fondos ligados al caso Mirage”, www.elmostrador.cl/noticias/pais/2012/03/28/justicia-suiza-congelo-mas-de-13-millones-de-dolaresretenidos-en-fondos-ligados-al-caso-mirage/. 427 Ibid. 428 The OECD Working Group on Bribery, Phase 3 Report on Implementing the OECD Anti-Bribery Convention in Switzerland, December 2011, www.oecd.org/dataoecd/59/53/49377354.pdf. 429 Ibid., page 16.
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