PETROBRAS Case Law
Overview
The main decision of interest to mention from a case law perspective is a Federal Court ruling 6B_379/2020 of
In
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In the same decision, the
The Brazilian intermediary filed an appeal against the replacement claim order with the Chamber of complaints of the Federal Criminal Court, who dismissed it, leading to an appeal to the Federal Court.
The Federal Court upheld the appeal and remanded the case to the Federal Criminal Court for a new decision, making the following findings:
Discontinuance was correct
The discontinuance of the Swiss criminal proceedings was correct, since both the custodial sentence and the penalty ordered by the Brazilian court exceeded the maximum under Swiss criminal law, and in the absence of a private claimant, there was no overriding interest that prevented the proceedings from being discontinued.
Net lawful gain in bribery cases
In bribery cases, contrary to what the lower court asserted, the net unlawful gain principle applies rather than the gross gain. However, since the net gain exceeded
Causation between criminal offence and unlawful gain
The Federal Court reminded that in issuing a forfeiture order or a replacement claim, the prosecution authorities must not only establish the existence of a criminal offence but also establish that the unlawful gain was caused by the offence. In bribery cases, the authorities must establish that the legal transaction would not have been concluded without the act of bribery. In forfeiture proceedings, the presumption of innocence does not apply since the forfeiture order or the replacement claim are not considered as penalties and may be issued irrespective of the guilt of the owner of the assets. The State must nevertheless prove all the conditions for confiscation.
However, anyone who alleges facts contrary to confiscation must reasonably co-operate in the gathering of evidence.
Proportionality
The appellant claimed that the decision breached the principle of proportionality. The Federal Court found that the entire circumstances of the specific case must be taken into account in the context of the proportionality test. In the case of forfeiture of the entire net proceeds, the bribing party is in effect required to provide its service to the state free of charge, which is disproportionate and not appropriate if legal contractual terms were agreed for the service, but the award of the contract was unjustifiably made dependent on a bribe by the persons acting for the state.
It is therefore necessary to examine in particular how the bribe payments came about and the purpose pursued with them, ie, whether the initiative for this came from the bribing party, who wanted to achieve a competitive advantage or more favourable contract conditions with it, or whether the payment was demanded by the bribed party as a precondition for consideration in the award of the contract. Since the appealed judgement did not examine those issues, the case must be remanded to the lower court.
Good faith
In Swiss criminal proceedings, the principle of good faith applies, which entitles a person to protection of legitimate expectations in an assurance, information or other conduct of an authority. The Federal Court assumed that the purpose of the penalty of
The Federal Court indicated that it was is questionable whether such an approach was compatible with the obligation of good faith and indicated that in the event that the lower court upholds the claim for compensation in the context of the reassessment, it will therefore also have to deal with its compatibility with the cooperation agreement concluded in the Brazilian criminal proceedings as well as with the principle of good faith.
Forfeiture vs replacement claims and lifting of the corporate veil
The Federal Criminal Court had confirmed the validity of the replacement claim, indicating that it would be overly complicated to identify which assets were proceeds of crime and that therefore a replacement claim should be issued rather than a forfeiture order, and that such replacement claim could be issued against the Brazilian individual even though his companies had received the unlawful gain, as the corporate veil could be lifted. The Federal Court reminded that, according to case law, a replacement claim against the sole shareholder of a legal entity is only permissible if there is no economic distinction between the shareholder and the company he owns, and the invocation of the legal independence of the legal entity therefore appears to be an abuse of right.
The Federal Court ruled that even the presumed commingling of the assets with funds of legal origin cannot justify a replacement claim for compensation against the shareholder personally. On the contrary, the proceeds of the offence are still forfeitable from the beneficiary company if they are not mixed with assets of legal origin. If they are, then the replacement claim should be issued against the company rather than its shareholder, as long as it is not established that the funds accrued to him personally.
The Federal Court therefore upheld the appeal and remanded the case to the Federal Criminal Court for a new decision. To date, this new decision has not been published.
Conclusion
This case thus stresses the complexity of issuing forfeiture orders or replacement claims when parallel proceedings have been concluded in a foreign country and the need for the
Legislative Changes and Other Developments
No amendment to the Swiss anti-bribery provisions took place in 2021. However, important changes to
Changes to the Anti-Money Laundering Act
On
Amendments adopted by
Under new Article 4 AMLA, financial intermediaries will not only have to establish the beneficial owner's identity, but will be required to verify the identity of customers, record which services have been provided to them, and clarify their background and purpose.
The revised AMLA also provides that financial intermediaries will have to periodically update the client data (identification of the contracting party under Article 3 AMLA and of the beneficial owner under Article 4 AMLA, as well as the client's profile) rather than only in the event doubts arise as in the current AMLA.
Under the revised Article 9 AMLA, the "reasonable grounds to suspect" money laundering that entails the obligation to report suspicious activities are now defined as "at least one concrete sign or of several indications" of money laundering that further clarifications cannot dispel. It appears that a "mere suspicion", as under current case law, will no longer to be sufficient to create a duty to report but will trigger additional duties of clarification.
Under revised Article 9b AMLA, the current 20 working day term of the
Associations that collect or distribute funds abroad for charitable purposes - which could be exposed to an increased risk of terrorist financing and money laundering - will also be required to register with Register of commerce, appoint a representative in
Amendments rejected by
Two amendments that were included in the
One was to include "advisors" within the scope of the AMLA, namely "physical or legal persons who are commercially active in connection with the incorporation, management or administration of domiciliary companies and trusts, as well as the organisation of raising funds in this context", including lawyers and notaries. The
The second was to lower the threshold for cash payments in the trade of precious metals and gemstones to
The new provisions should enter into force in the first half of 2022.
Appointing a new Attorney General of
Another development of interest is that on
Originally published by Chambers Global Practice Guides
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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