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| Talacker 41, 8001 Zurich, Switzerland, Phone: +41 43 443 72 00, Fax +41 43 497 22 70, info@amcham.ch |
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| what we do |
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| Site contribution |
| Date: |
April 2006 |
| Prepared by: |
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Introduction |
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Evidence may be obtained in Switzerland in civil, criminal and administrative matters under applicable Treaties (i.e. the Hague Evidence Convention, the Treaty in Criminal Matters and the Double Taxation Treaty) and implementing Swiss legislation. Further, Switzerland permits service of process in civil matters (under the Hague Service Convention).
In contrast, the Swiss penal code, art. 271, provides that attorneys attempting to take a deposition or serve process in Switzerland outside of these authorized methods are subject to arrest on criminal charges. |
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Applicable Law |
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The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters concluded March 18, 1970 (UST 2555, TIAS No 7444, SR/RS 0.274.132) |
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The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters concluded November 15, 1965 (20 UST 361; TIAS no 6638, SR/RS 0.274.131) |
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The American-Swiss Treaty on Mutual Assistance in Criminal Matters entering into effect as of January 1, 1977 (27 UST 2019, TIAS No. 8302; SR/RS 0.351.933.6) |
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The Swiss-American Convention of the Avoidance of Double Taxation on Income entering into effect as of January 1, 1998/February 1, 1998 ([2] UST [1760], TIAS No [2326]; SR/RS 0.672.933.61) |
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Detailed Information |
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A more detailed report on Mutual Assistance can be found in the attached article by Dr. Peter Honegger. |
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Frequently Asked Questions |
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May US attorneys and US officials themselves gather evidence in Switzerland? |
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The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters concluded November 15, 1965 (20 UST 361; TIAS no 6638, SR/RS 0.274.131) |
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Is it possible to collect evidence that is otherwise protected by Swiss banking secrecy? |
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Yes, but. Whenever a request for judicial assistance in civil or criminal matters is granted, Swiss proceedings of a civil or criminal nature will be instituted, according to the nature of the request. Banking secrecy can be set as follows: |
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In civil proceedings the duties to testify differ from canton to canton: In eight cantons bank secrecy remains intact and the bank does not have to testify. In eleven cantons the bank must testify and banking secrecy is set aside. In the remaining cantons it is the task of the judge to decide whether banking secrecy or the duty to testify shall prevail. |
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In criminal proceedings bank officials must testify as witnesses and banking secrecy is, therefore, set aside. |
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When is a request for judicial assistance deemed to be a “fishing expedition”? |
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The request must be substantiated and specify not only the parties to and the subject of the US proceeding, but particularly the information sought and explain why such information is relevant for the US proceedings. If, for example, bank information is sought from Switzerland, the request must specify the name and the place of the bank, the name of the account holder, and explain why this information is relevant for the US proceedings. |
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To whom must a request for judicial assistance be addressed? |
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The request must be channeled through the US central authority, and addressed to the Swiss central authority. Questions can be addressed to the following authorities in the US or in Switzerland: |
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Department of Justice
Office of International Judicial Assistance
Civil Division
Washington, D.C. 20530
U.S.A.
Phone: (202) 307-0983
Fax: (202) 514-6584 |
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The Federal Justice and Police Department
Federal Office of Justice
Section for Mutual Legal Assistance
Bundesrain 20
3003 Bern
Phone: 0041-31-322-4301
Fax: 0041-31-322-5380 |
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Is there a sample request for judicial assistance? |
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The authorities mentioned above will be supportive both to US officials and private parties so as to avoid inadequate requests. Request must meet the following criteria: |
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Civil matters: A model letter of request is annexed to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. |
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Criminal matters: The American-Swiss Treaty on Mutual Assistance in Criminal Matters does not contain a model request but, in art. 29, lists the specific information necessary under the that Treaty. |
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Overview on the procedures |
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Useful Links |
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