Public Private Partnerships in criminal prosecution Public Private Partnerships in criminal prosecution Public Private Partnerships in criminal prosecution

"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.

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.

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.

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).

What does this mean with regard to prosecuting qualified economic crimes? There is no doubt that criminal prosecution in the digital world requires very specific know-how as well as the relevant technical (support) tools. The investigation of complex economic crimes such as accounting fraud, bribery and corruption as well as other white-collar crimes requires special know-how. Furthermore, the processing of digital evidence which can be used in court and the handling of large amounts of mass data (so-called big data) requires skilled specialists. 

The application of a PPP concept for the prosecution of qualified economic crimes, in other words the collaboration between prosecuting authorities and private forensic service providers, has the following advantages:

• The prosecuting authorities benefit from the technical and personal resources as well as from the  global network of forensic service providers;
• The prosecuting authorities can take advantage of forensic services on a modular and on-demand basis – which means that they can call upon services whenever a case warrants it;
• The prosecuting authorities are able to conduct their investigations in a cost and time efficient manner;
• The prosecution authorities gain access to state-of-the-art, proven technical tools available on the market for processing, reviewing and visualizing data.

A Public Private Partnership (PPP) in the area of the prosecution of qualified economic crime could therefore mitigate the problems outlined above: it goes without saying that this would be beneficial to both parties. A contractual partnership of convenience exists between the state and the private forensic services provider. The contracted private forensic services provider is responsible for the efficient and timely provision of the agreed service, while the public sector – specifically the prosecuting authorities – helps the government enforce its right to punish criminal conduct with the most advanced equipment and techniques. On that note: a win-win situation all around!