"Crime doesn’t pay!" - The partnership between prosecution authorities and private companies will enable the state to effectively enforce its right to punish criminal conduct in the area of white-collar crime.
State’s right to punish criminal conduct
The state's right to punish criminal conduct, the so-called monopoly on punishment, describes the competence of certain prosecution authorities to investigate any criminal offenses and impose penalties in accordance with penal laws. According to the Criminal Procedure Code, the public prosecutor is responsible for the uniform exercise of the state's right to punish criminal conduct. As part of the prosecution authorities, it, in collaboration with the police, pursues offenses within the scope of its jurisdiction, and where applicable brings charges. In doing so, the exercise of the substantive (criminal) law is a non-transferable governmental task.
All criminal acts that have an economic context are generally referred to as white-collar crime or economic crime. The criminal acts can be directed against the state, companies and/or private individuals. However, what all types of offenses have in common, due to the globalization of the economy and digitalization, is that they are increasingly international in nature. In this regard, cross-border evidence is part of the daily routine of any economic crime investigation.
Limited resources in most canton’s investigative authorities
In line with Switzerland’s federal system, the cantons are responsible for the prosecution of all criminal offenses (so-called cantonal jurisdiction) which do not fall under federal jurisdiction or are assigned by special federal laws to the Office of the Attorney General of Switzerland (OAG) for prosecution. Due to an increase of criminal cases which have an international and technology aspect to it, especially small cantons struggle with prosecution of such matters. Fact is: with the internet, criminals can operate from anywhere in the world.
The prosecution of such crimes by the police and investigative authorities is often hampered by a lack of equipment and resources. Either they do not have enough personnel, or they are unable (for cost reasons) to keep up to speed with potential technological requirements of such investigations. Therefore, criminal prosecution in the digital world is becoming a big challenge for the authorities. As a result, the public prosecutor may in some instances fail to identify the perpetrator and be forced to abandon the proceedings. Or, more figuratively: the limited resources of prosecuting authorities are the weak spot when it comes to the exercise of the state's right to punish criminal conduct.
Support for state prosecuting authorities by private companies
From the government’s point of view, how should this problem be dealt with, or what can be done to alleviate it? At the parliamentary level, there have been intensified discussions on the possibility of partnership-based cooperation between the public sector and private companies. Public Private Partnerships (PPP) are a potential solution for optimizing the fulfillment of governmental tasks. In this regard, such a PPP comprise not only the public-private cooperation in the area of supply or logistics projects but could also be applied for prosecution.
The partnership-based fulfillment of tasks in accordance with a PPP is characterized in particular by the following (non-exhaustive) attributes:
- fulfillment of a public task as the objective;
- participation of minimum one private and one public partner each;
- provision of an economic service;
- joint responsibility;
- bundling of resources (capital, operating material, know how).