On 5 December 2023, the Office of the Attorney General of Switzerland filed an indictment in the Federal Criminal Court against three individuals and against the commodities trading company Trafigura Beheer.
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A former Angolan public official is charged with having accepted, between April 2009 and October 2011, bribes of more than EUR 4.3 million and USD 604,000.- from the Trafigura Group, in relation to its activities in the petroleum industry in Angola.
In addition, a former intermediary and a former senior executive of the Trafigura Group are charged with being involved in this corruption scheme.
Finally, Trafigura Beheer is charged with failing to take all reasonable and necessary organisational measures to prevent the payment of these bribes.
For the first time, the Federal Criminal Court is called upon to judge the criminal liability of a company for bribery of foreign public officials.
The Office of the Attorney General of Switzerland (OAG) opened a criminal investigation against persons unknown in July 2020 on suspicion of bribery of foreign public officials (Art. 322septies Swiss Criminal Code (SCC)) and of money laundering (Art.
305bis SCC) related to potential corrupt payments to Angolan public officials.
In August 2021, the investigation was extended to include the first defendant, former Chief Executive Officer and executive member of the board of SONANGOL DISTRIBUIDORA SA, a subsidiary of the Angolan state-owned petroleum company SOCIEDADE NACIONAL DE COMBUSTÍVEIS DE ANGOLA EP (SONANGOL EP), on suspicion of bribery of foreign public officials (Art.
322septies SCC) and of money laundering (Art.
Between January and March 2023, the criminal investigation was further extended to include the second defendant, a former intermediary for the Trafigura Group in Angola, and the third defendant, former Chief Operating Officer and member of the management board of Trafigura Beheer, both on suspicion of bribery of foreign public officials (Art. 322septies para. 1 SCC), as well as the company Trafigura Beheer on suspicion of bribery of foreign public officials (Art. 322septies para. 1 SCC in conjunction with Art. 102 para. 2 SCC).
Lastly, the OAG accuses Trafigura Beheer of failing to take, between April 2009 and October 2011, all reasonable and necessary organisational measures to prevent the commission, within the company, of offences of bribery of foreign public officials according to Article 322septies paragraph 1 SCC in conjunction with Article 102 paragraph 2 SCC.
According to the indictment, the Trafigura Group's internal regulations applicable between April 2009 and October 2011 are alleged to have not been in conformity with international standards on preventing and combating corruption and to have not been apt to prevent the high risk of corruption associated with the Trafigura's activities in the petroleum industry in Angola, said risk being all the greater given that the Trafigura Group was involved with an Angolan state-owned company and resorting to intermediaries to develop its business in that country.
In addition, the aforementioned internal regulations and international standards, particularly in relation to due diligence and monitoring of the intermediaries' activities, are alleged to have not been effectively implemented within the Trafigura Group.
As a result of this disorganisation, which is alleged to have manifested itself up to the highest level of the company, the above-mentioned offences of active bribery of foreign public officials would have been rendered possible.
With regard to the allegation of money laundering (Art. 305bis SCC), as the investigation was unable to establish the element of intent with respect to the offence, the OAG issued on 5 December 2023 an order abandoning proceedings against the former Angolan public official.
The order abandoning proceedings may still be subject to appeal and is currently unavailable for consultation. ■
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