Switzerland – Obtaining Civil Remedies in Criminal Cases

Switzerland's legal framework, shaped by its multilingual and multicultural heritage, offers a unique blend of statutes, regulations, and case law influenced by German, French, and Italian legal systems. This article explores the mechanisms available within the Swiss legal system for pursuing civil remedies alongside criminal proceedings, particularly through the innovative "adhesive procedure." Understanding these processes is crucial for effectively managing financial crime claims and maximising recovery efforts in Switzerland, a jurisdiction known for its robust legal infrastructure and international cooperation in criminal matters.

Legal framework

Switzerland's legal framework is an amalgamation of statutes, regulations, and case law, influenced by its history and political structure. The origins of Swiss law can be traced back to various historical sources, including the reception of Roman law and the influence of the Napoleonic Code during the French occupation in the early 19th century.

Swiss law is influenced by the German, French, and Italian legal systems, reflecting the country's linguistic regions. The existence of multiple legal influences is evident in the drafting of federal laws, which are published in the country's three official languages which are German, French, and Italian.

The Swiss judiciary is organised on both the federal and cantonal levels. The Federal Tribunal is the highest court in the jurisdiction and ensures the uniform application of federal law. Each canton has its own judicial system for cantonal matters including one or several public prosecutor's office that is responsible for conducting criminal investigations and bringing charges against suspects in criminal cases. Public prosecutors have the authority to lead police investigations, decide whether to prosecute a case, and represent the state in criminal trials.

At the federal level, the Office of the Attorney General of Switzerland (OAG) is responsible for prosecuting crimes that fall under federal jurisdiction. These typically include cases of organised crime, terrorism, money laundering, corruption of federal officials, and crimes that affect the interests of the Confederation. The OAG can also take over cases from cantonal authorities if the matter has international implications and/or requires specialised knowledge. Fraud proceedings involving victims in different jurisdictions are often conducted by the OAG.

Cantonal criminal investigations will be conducted by cantonal prosecutor’s offices and the trials will be heard by cantonal courts, followed by cantonal appeals and ultimately by the Federal Tribunal, whereas proceedings conducted by the OAG will be heard by federal courts at first and second instance.

Criminal and civil proceedings in parallel

In Switzerland, it is possible to pursue civil claims within criminal proceedings through a mechanism known as an "adhesive procedure" (Adhäsionsverfahren in German, “action civile adhésive” in French; Articles 119(2)(b) and 122 et seq. of the Criminal Code of Procedure; “CrimC”). This allows the victim of a crime (the claimant in the civil claim), to seek compensation for damages directly before the prosecutor’s office or, in case of a trial, within the criminal trial, without having to initiate separate civil proceedings for civil claims that can be deduced from a criminal offence, which excludes contractual claims (see in this respect the recent landmark case of the Federal Tribunal 148 IV 432, consid. 3.2).

An adhesive claim is therefore essentially a civil action that is attached ("adheres") to a criminal proceeding. The purpose of this procedure is to streamline the process for injured parties seeking compensation for harm suffered as a result of a criminal offence. It is particularly useful in cases where the criminal act has caused financial losses, property damage and personal injury.

Here is how it works:

Filing the Claim:

The injured party can file a civil claim against the accused at the commencement of or during the criminal proceedings. The claim is made for compensation or reparation of the damage caused by the criminal offence. The injured party can withdraw his or her civil claim before the closing of the criminal proceedings at the hearing and reintroduce the civil claim before a civil court (Article 112(5) CrimC).

Jurisdiction:

The criminal court hearing the criminal case has jurisdiction over the adhesive claim. This means the court will consider both the criminal charges and the civil claim for damages in a single proceeding. The public prosecutor may also rule on civil claims in the context of a summary penalty order if the accused agrees with the civil claims or, if not, if the damage has been sufficiently established during the investigation and if its value does not exceed CHF30,000 (Article 353(2) CrimC).

Evidence and Standards:

The evidence presented in the criminal trial is used to assess the civil claim. The level of proof and allegation is that of a civil suit - the damage must be proven. However, the standard of proof for the civil claim is the balance of probabilities, which is lower than the "beyond reasonable doubt" standard required for a criminal conviction.

Advantages: 

• An adhesive claim saves time and resources for the victims, as they do not need to go through two separate legal proceedings, and they do not need to bear the costs of the criminal proceedings, which are met by the state. In other words, the victim does not need to pay an advance for costs when filing an adhesive in the criminal proceedings and will not have to bear any costs in connection with it unless special investigative measures, such as an expert report, are necessary.  Such a payment is required from the injured party in independent civil proceedings and the level of payment will depend on the amount in dispute.
• The victim benefits from the important investigative work carried out by the criminal prosecution, which might be more extensive than what is typically done in a civil lawsuit where the costs would have to be met by the victim based on the value of the claim. 
• The criminal investigation can take several years in complex cases, before the accused(s) are brought to trial; but civil proceedings are also lengthy and can often also take several years and will also and in any event be stayed if a criminal trial is pending which could influence the civil case.
• A victim may ask the public prosecutor to order the seizure of assets of an accused, either because they represent the proceeds of the crime and shall be eventually confiscated (Article 263(1)(c) and (d) CrimC and 70 of the Swiss Criminal Code (SCC)), or if these proceeds have disappeared or been mixed up with other assets, particularly bank assets, the seizure of other assets as security for a so-called compensatory claim (Article 263(1)(d) CrimC and 71 SCC) that will serve to indemnify the victim. 

Possible Outcomes:

If the criminal court finds the accused guilty, it can also rule on the adhesive claim and award damages to the injured party. If the accused is acquitted, the civil claim is not automatically dismissed; the court may still award damages if the lower civil standard of proof is met. It can also decide not to rule on the adhesive claims if the facts are insufficiently clear or too complex, and invite the injured party to file its civil claim in an independent civil procedure.

The adhesive claim route is most often followed for the reasons mentioned above, in particular the possibility of obtaining evidence through searches and deposition orders, which are often otherwise difficult to obtain; moreover, civil proceedings will very often be stayed anyway if criminal proceedings are being conducted in parallel, the outcome of which may affect the outcome of the civil proceedings.

Concluding Remarks

Navigating the Swiss legal system to address financial crimes requires a comprehensive understanding of its federal and cantonal judicial structures and the interplay between criminal and civil proceedings. Switzerland's adhesive procedure offers a streamlined approach for victims to seek compensation within criminal trials, leveraging the extensive investigative powers of the criminal justice system. This mechanism not only saves time and resources but also enhances the chances of successful recovery by utilising the evidence gathered during criminal investigations and to obtain rapid seizures on assets of the accused, whether or not they are linked to the offences under criminal investigation. For claimants dealing with complex financial crimes, professional legal guidance is essential to effectively utilise the tools available within the Swiss legal framework and to make informed decisions that maximise the potential for recovery.

Frequently Asked Questions

In Switzerland, can civil remedies be sought within criminal proceedings?

Switzerland has its own unique “adhesive procedure” (Article 122 of the Criminal Code of Procedure). This allows the victim (who would be the Claimant in a civil claim) to seek damages and other civil remedies related to that particular offence within the criminal proceedings itself, without having to initiate separate civil proceedings. This does not include any contractual claims.

The adhesive procedure is advantageous for the victim as it saves time and resources, and they will benefit from the extensive investigative work carried out by the criminal prosecution. The victim will also not need to bear the costs of the criminal proceedings as these are met by the state.

In Switzerland, what are the time limits [or what is the limitation period] for bringing a fraud claim?

In criminal proceedings the limitation period is 7, 10, 15 or 30 years depending on the nature of the crime. The civil limitation period is 10 years however, if the Defendant has been convicted in criminal proceedings, the longer criminal limitations of 15 or 30 years will apply.

In Switzerland, what interim remedies are available for a civil claim brought within criminal proceedings?

In Switzerland, the criminal prosecution authorities (prosecutor’s office) can issue orders for evidence, asset freezing, travel bans and provisional imprisonment.

With offices in many of the world’s major financial centres, including London, Paris, Geneva, Zurich, Dubai, Hong Kong and Singapore, we are ideally placed to work with you to prevent, resolve and assist with financial crime disputes and investigations as they arise, whatever the law, language, rules, industry sector, or subject matter of that dispute may be. Our dedicated multicultural and multilingual specialists conduct proceedings under both common law and civil systems and regularly act in fraud-related proceedings.

Whether you are an individual or a business, our strategically focused specialists will work alongside you through every aspect of any proceedings. Please contact the author or your usual Charles Russell Speechly LLP contact if you would like to get in touch.