Leading decision on international mutual assistance in criminal matters, Swiss Federal Criminal Court grants right to a fair foreign trial for corporations in Switzerland

by Dr. iur. HSG Christian Alexander Meyer,
licencié spécial en droit européen ULB; Attorney-at-Law

Fair trial guarantee in judicial assistance for corporate bodies
Until 2016 a corporate body could not object to a measure of judicial assistance arguing that the proceeding in a foreign requesting state does not assure a fair trial.

A corporate body’s objection was inadmissible in Switzerland that a foreign proceeding does not meet the procedural requirements of the European Convention for the Protection of Human Rights (ECHR, article 6, under article 2 letter a of the Swiss Federal Act on International Mutual Assistance in Criminal Matters, IMAC). The Federal Supreme Court held that corporations were considered unable under the actual circumstances to argue a legitimate interest to refer to a provision which primarily serves to protect an accused physical person in a foreign criminal proceeding.

Corporations can become criminals
In 2002 also corporations become subject to the criminal law in specified cases like a physical person. Under the initiative of the OECD bribery and corruption in international business and the public sector led to new provisions in the member states. Article 102 Swiss Federal Criminal Code was introduced to regulate criminal liability of a corporation. In parallel the provisions against bribery have been amended on several occasions.

Swiss corporation requested a fair trial guarantee
In a recent case of judicial assistance Switzerland was requested to provide the transcript of an interrogation of a joint stock company as accused person to the requesting state’s prosecutors.

Are physical persons and corporate bodies different under human rights aspects?
So far only the interrogated individual was directly concerned by a foreign state’s request to provide his transcript of an interrogation as accused individual. A corporate body was considered being a third party with regard to such a transcript although the interrogated individual made statements as its employee or board member about the corporate body and its business. The question whether a corporate body which is accused in a criminal case in a foreign country may claim that the foreign proceeding does not comply with the standards of the ECHR (article 2 letter a IMAC), was so far not decided by the Federal Supreme Court.

For physical persons with a domicile in Switzerland and a criminal procedure in a requesting foreign state the Swiss courts examine the ECHR-standards under article 2 letter a IMAC limited to the question of a fair trial pursuant to article 6 ECHR if the physical person is not present in the requesting foreign state. The corporation concerned was incorporated under the laws of Switzerland and domiciled in Switzerland.

The Federal Criminal Court extended the fair trial guarantee to corporate bodies
The Federal Criminal Court held that there is no reason to treat corporate bodies and physical persons differently with regard to their admissibility to challenge the handing out of a transcript of their interrogation by way of judicial assistance. Thus, a Swiss corporation’s challenge of a measure of judicial assistance with the argument that the requesting foreign state does not provide a fair trial pursuant to article 6 ECHR is admissible and shall be examined (RR.2015.318 considerations 4.2 and 4.3, confirmed by RR.2016.194 and RR.2016.195 consideration 4.2.3).

Dr. Christian Alexander Meyer advises and represents corporations, their senior management and board members in cases of judicial assistance in Switzerland against foreign states. He advised and represented the Swiss corporation in the above mentioned leading case.