Petrobras – Odebrecht Affair: The Office of the Attorney General of Switzerland convicts Brazilian companies and demands payment of over CHF 200 million
Bern, 21.12.2016 - The Office of the Attorney General of Switzerland (OAG) has convicted the Brazilian company Odebrecht SA and one of its subsidiaries of inadequate corporate organisation in connection with the Petrobras affair and demanded payment of over CHF 200 million. The conviction, which takes the form of a summary penalty order, is part of a coordinated conclusion to the proceedings, initiated by Switzerland and also involving Brazil and the USA.
Since 2014, the OAG has been conducting around 60 criminal investigations into the international corruption affair involving the Brazilian semi-state-owned corporation Petrobras. Based on reports of suspect banking transactions from the Money Laundering Reporting Office (MROS), it has been established that various companies in the construction industry paid bribes in order to secure contracts. The companies’ accounts showed the release of the funds, which were then moved between several accounts belonging to offshore companies in order to facilitate the payment of the bribes. Investigators were able to trace the payments back, among others to Odebrecht SA and its subsidiary Construtora Norberto Odebrecht SA (CNO), which have their headquarters in Brazil.
In a summary penalty order issued on 21.12.2016, the OAG found Odebrecht SA and CNO guilty of a violation of corporate criminal law (Art. 102 para. 2 Swiss Criminal Code (SCC)), in that they did not take all reasonable organisational measures required to prevent the offences of bribing foreign public officials (Art. 322septies SCC; CNO) and money laundering (Art. 305bis SCC; Odebrecht SA and CNO). The two companies have been held jointly and severally liable to pay Switzerland the sum of CHF 117 million.
The company Braskem SA also paid bribes via the same channels as Odebrecht SA and CNO. Odebrecht SA has a majority shareholding in Braskem SA, another shareholder being the Brazilian state, acting via Petrobras. Proceedings in Switzerland against Braskem SA have been abandoned as the company is being held accountable in the USA for offences that include the acts of bribery under investigation in Switzerland. However, the Swiss decision to abandon the proceedings involves the company paying compensation of CHF 94.5 million.
Accordingly, over CHF 200 million will have to be paid to Switzerland in connection with these cases. This sum is made up of forfeited funds, compensation claims, procedural costs and a fine. The fine amounts to CHF 4.5 million, a modest sum in comparison with fines imposed abroad. In setting the level of the fine, the OAG is bound by the statutory maximum amount, which is CHF 5 million.
The conclusion of proceedings in Switzerland form part of a process to conclude proceedings coordinated between the Federal prosecutors in Curitiba and the Office of Prosecutor General in Brasilia, the American law enforcement authorities and the OAG in Switzerland. It marks a further milestone in the international battle against corruption. The OAG is thereby pursuing its goal of robustly enforcing Switzerland’s provisions on corporate criminal liability (Art. 102 SCC). A key element is the disgorgement of the profits made from these crimes in accordance with the different legal principles that apply in Brazil, the USA and Switzerland, and their distribution among the three law enforcement authorities involved.
The claims against the companies, which are based in Brazil on civil proceedings, in the USA on a guilty plea and in Switzerland on the summary penalty order, amount in total to around USD 2 billion.The OAG’s investigations in the overall context of Petrobras and Odebrecht will continue, irrespective of the conclusion of the proceedings relating specifically to Odebrecht SA and its subsidiaries.
Address for enquiries
André Marty, Head of Communication & Public Affairs of the Office of the Attorney General of Switzerland; +41 58 464 32 40; email@example.com
Office of the Attorney General of Switzerland
Last modification 03.10.2018