Collecting Evidence in Switzerland – Dos and Don’ts
A number of States, including Switzerland, have enacted blocking statutes which may hinder or prevent the taking of evidence for use in foreign court proceedings involving civil matters.
Switzerland has very strict rules on giving evidence in foreign court proceedings. If these rules are not respected there are potential criminal consequences for any person who carries out activities that are the responsibility of a Swiss public authority or official.
Obtaining evidence in Switzerland by a foreign authority (witness statements, production of documents, expert opinion, including the conduct of a hearing by video conference of a party or witness located in Switzerland for instance) constitutes an international judicial assistance act by a public authority on Swiss territory and is therefore prohibited unless authorised.
Switzerland is a contracting State to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (“the Hague Evidence Convention”). It makes provision for obtaining evidence by means of letters of request and through diplomatic or consular officers and through commissioners.
Where the Hague Evidence Convention does not apply and where there are no relevant bilateral agreements, Switzerland applies the Hague Convention relating to civil procedure of 1 March 1954 (the “1954 Hague Convention”).
Letters of Request
Under the Hague Evidence Convention, the judicial authority (not a private person e.g. a lawyer) of a Contracting State may issue a letter of request to the competent authority of Switzerland to obtain evidence.
As Switzerland is a federal State with 26 cantons, the cantonal Central Authority of the canton in which the request is to be executed is the receiving authority. Such applications may, however, be submitted to the Federal Office of Justice, who will transfer them to the competent cantonal Central Authority.
Under the 1954 Hague Convention, the letters of request procedure must also be issued by a judicial authority. However, the foreign judicial authority must send its application to the diplomatic representation of its nation in Switzerland. That diplomatic representation will send the application to the Federal Office of Justice who will, in turn, forward it to the competent cantonal authority.
The requesting party may ask a Swiss judge to oversee the collection or review of evidence, or for the authorities to approve the appointment of a Commissioner, usually a Swiss attorney. The appointment of a Commissioner usually translates into a speedier collection of evidence.
Can evidence be collected by diplomatic officers or consular agents?
Obtaining evidence, in Switzerland, through foreign diplomatic or consular officers is generally reserved to (i) the area where the diplomatic officer/consular agent/commissioner exercises his functions, (ii) nationals of a state which the state represents, (iii) proceedings commenced in the courts of that state. Prior authorisation of the Swiss Federal Department of Justice and the cantonal authority is required.
The application for judicial assistance must be sent to the cantonal Central Authority in which the documents, data or witnesses are located.
Can Special Authorisation be obtained?
Even under urgent circumstances, it is difficult to obtain authorisation at short notice but there are exceptions. The Swiss authorities will not grant authorisation if the request is outside the scope of the rules on international judicial assistance. If granted, the authorisation is valid for a limited time and may be revoked.
Are there any cases in which procedures for assistance do not need to be followed?
Where a party is domiciled in Switzerland and required to provide evidence, to fill in a questionnaire, or to appear before a foreign court, letters of request are not necessary if the refusal to cooperate leads only to consequences of a procedural nature (e.g. a factual claim of the other party is accepted as true or the loss of the right to prove the claim at a later stage). The relevant party is free to cooperate. The service of this type of invitation must, however, be carried out according to the proper procedure for judicial assistance.
Where the person to whom the invitation is directed is not party to the proceedings but a third party (witness, expert, etc.), that person may not be considered as a subject of the foreign court’s jurisdiction. In such cases, the foreign authority must also follow the procedure for judicial assistance. However, the mere invitation to go abroad is not subject to the procedure for judicial assistance provided that it is not accompanied by any kind of coercive measure.
How can we help?
Particular caution must be paid to the strict rules of collecting evidence in Switzerland, as breaching it constitutes a criminal offence. Foreign parties (including foreign lawyers, bankruptcy receivers or investigation companies) may underestimate the difficulties Swiss law will cause when attempting to gather evidence or examine a witness in Switzerland. The consent of private persons cannot exempt the person performing the act in favour of a foreign state from conviction.
Transferring data abroad, or submitting it to foreign courts, may also trigger other legal considerations such as data protection, banking secrecy laws and legal privilege under Swiss law.
There are several ways to obtain evidence and examine witnesses located in Switzerland in compliance with Swiss law. A careful assessment is therefore required to determine whether the mechanics of international judicial assistance must be followed, whether authorisation to collect evidence is likely to be granted and whether an appointment of a Swiss based Commissioner would assist with the collection of evidence or examining a witness.
This article was written by Michael Wells-Greco. For more information please contact Michael on +41 (0)22 591 18 80 / Michael.Wells-Greco@crsblaw.com.