Authorities

 Switzerland - Central Authority (Art. 2) and practical information
Address

Central Authority(ies):

Cantonal Central Authorities (list up to date as per 19 March 2014)
A list of the Central Cantonal Authorities including their address and phone/fax numbers can be consulted online at the following address: http://www.rhf.admin.ch/rhf/fr/home/zivil/behoerden/zentral.html.
To determine the Central Authority competent by reason of its location, the database of the Swiss localities and Courts can be consulted online at the following address: http://www.elorge.admin.ch/.

Practical Information
(The following information was provided by the relevant State authorities or was obtained from the replies to the 2008 Evidence Convention Questionnaire)

Blocking statutes:

No blocking statutes as such.  However, some laws impose limitations on participation in judicial assistance proceedings for the taking of evidence, including:

  • protection of Swiss sovereignty: the Swiss Penal Code (RS 311.0) contains the following provisions relating to the protection of territorial sovereignty of Switzerland and abroad: art.271 (unlawful activities for a foreign state), art.273 (industrial espionage), and art.299 (violation of territorial sovereignty abroad).
  • bank secrecy: art.47 of the banking law (RS 952.0) contains an obligation of bank secrecy. Such secrecy is not absolute and does not apply in certain circumstances, namely in cases of fraud of other criminal act. Chapter4 reserves the application of cantonal laws relating to the obligation to inform authorities and testify in court. A request can therefore be responded to differently depending on its place of execution.
  • trade secrets: Some cantons have included particular provisions in their civil procedure codes which restrict participation in acts of assistance. For example, art.231(2) of the Civil Procedure Code in Ticino (CPC, RL3.3.2.1) states: "The judge may excuse the witness from revealing trade secrets where the interests of the witness retaining trade secrets outweighs the interests of the party in revealing them" (translation).
  • confidentiality: art.321 of the Swiss Penal Code, subject to obligations under federal and cantonal law to inform authorities and testify in court.
  • Protections of sources: art. 28a of the Swiss Penal Code.

Chapter I
(Letters of Requests)

Transmission of Letters of Requests:

In most cantons, Letters of Request are sent directly from a judicial authority in that canton to the Central Authority of the requested State.

In other cantons, Letters of Request are first sent to the cantonal Central Authority before being sent to the Central Authority of the requested State.

Authority responsible for informing of the time and place of the execution of Letter of Request (Art. 7):

In most cantons, the judicial authority competent to execute the request, via the central authority.

In other cantons, the Central Authority.

Presence of judicial personnel at the execution of the Letter of Request (Art. 8):

Yes, prior authorisation required (declaration of applicability).

Privileges and duties existing under the law of States other than the State of origin and the State of execution (Art. 11):

No declaration of applicability.

Translation requirements (Arts 4(2) and 33): 

Accepts Letters of Request written in or translated into the language of the requested authority, i.e. in German, French or Italian, depending on the region of Switzerland in which they are to be executed (see reservation).

Costs relating to execution of the Letters of Request (Arts 14(2)(3) and 26):

Such scenarios would only arise in exceptional cases (e.g. doctor's fees for saliva tests).

Time for execution:

Up to four months (est.).

Art 23 pre-trial discovery of documents:

Letter of Request may be executed subject to certain conditions (qualified exclusion).

Information about domestic rules on the taking of evidence: 

See OFJ guidelines on international judicial assistance in civil matters.

A new Swiss Code of Civil Procedure enters into force on 1 January 2011.

Witness examination under Chapter I

Should Letters of Request include specific questions to be used during witness examination or only a list of matters to be addressed?

Most cantons require questions to be drafted with sufficient certainty and clarity (otherwise, the request is returned for redrafting). If the fact scenario is clear, questions do not need to be drafted in great detail. Experience shows that a list of detailed questions will speed up proceedings.

Is it a public or private hearing?

Practice varies from canton to canton. The new Swiss Civil Procedure Code requires proceedings and the deliberations of judgments to be public, with the exception of family proceedings. The judge may order all or part of the proceedings to be held behind closed doors where it is in the public interest or the legitimate interests of one of the parties to do so. All witnesses are examined in the absence of other witnesses; leave to confront the witness may be sought.

Do the judicial authorities "blue-pencil" Letters of Requests (i.e. rephrase, restructure and / or strike out objectionable questions or offensive wording so that a Letter of Request may be executed under the laws of the requested State)?

Yes (in most cantons).
No (in other cantons).

Is the witness provided in advance with a copy of the questions / matters to be addressed as contained in the Letter of Request?

No.

Are documents produced by the witness authenticated by the court?

No (in most cantons).
Yes (in other cantons).

Is an oath generally administered to the witness?

No (in most cantons).
Yes (in other cantons).
The new Swiss Code of Civil Procedure does not provide for the administration of oaths.

Can the witness be made subject to further examination and recall?

Yes.
In most cantons, the first Request may be re-invoked.

In other cantons, a second Request necessary.

Are there sanctions for non-appearance of witness?

In general, potential sanctions include an order to pay incurred costs, fine and ultimately the possible application of art. 292 of the Swiss Penal Code in cases of repeat failure to appear.
Under the new Swiss Code of Civil Procedure, non-parties who refuse to appear without legal grounds or recognized exemption may face sanctions (court-ordered fine, application of art. 292 of the Swiss Penal Code, enforcement by the police, fee charge). Non-parties face the same sanctions for failure to comply.

Must interpreters who assist with the witness examination be court-certified?

Practice varies from canton to canton.

How is the testimony transcribed?

Written minutes of the hearing are prepared, and occasionally audio recordings are made which are later transcribed. 
Under the new Swiss Code of Civil Procedure, the substance of the testimony is recorded in the minutes and signed by the witness. Alternatively, testimony may be recorded on magnetic tap, by video, or by any other appropriate means.

Chapter II
(Taking of evidence by diplomatic officers, consular agents and commissioners)

Article 15

Applicable, subject to prior authorisation by the Federal Department of Justice and Police. A request for authorization must be addressed to the Central Authority in the canton where the evidence is to be taken.

Article 16

Applicable, subject to prior authorisation by the Federal Department of Justice and Police. A request for authorization must be addressed to the Central Authority in the canton where the evidence is to be taken.

Article 17

Applicable, subject to prior authorisation by the Federal Department of Justice and Police. A request for authorization must be addressed to the Central Authority in the canton where the evidence is to be taken.

Article 18

No declaration of applicability (i.e., a diplomatic officer, consular agent or commissioner may not apply for appropriate assistance to obtain evidence by compulsion).

Taking of evidence by video-links
(under either chapter)
 

Chapter I

Are there legal obstacles to the use of video links?

No.
Most cantonal Central Authorities consider the legal basis for such measures to be found in the functional development of the Convention.
Some Central Authorities have nevertheless based these measures on arts 7 and 8 of the Convention. This type of measure has not yet been used by any of the cantonal Central Authorities consulted. It also raises economic issues as well as practical issues such as the allocation of costs and the availability of equipment (between the requested authorities, requesting authorities, and parties). Further, there is the issue of identifying the persons giving and taking the evidence, as well as technology issues (system compatibility, IT security).

Technology used:

No information available.

Level of interpretation required:

No information available.

Simultaneous or in sequence interpretation:

No information available.

Interpretation required in which jurisdiction?

No information available.

Who pays for the interpretation?

No information available.

How would a request for evidence be handled if witness not willing?

The issue has not yet arisen. Several theoretical responses have been postulated. The application by analogy of coercive measures available in respect of witnesses who refuse to testify or comply with court orders could be envisaged. For their part, some cantonal Central Authorities would abandon the use of video-link.
On the other hand, one Central Authority has indicated that, in cases where the participation of the parties and foreign judicial personnel was based on arts 7 and 8 respectively of the Convention, the witness was not entitled to refuse the video-link. Potential issues could arise in terms of the legality of video recording.

Chapter II

Are there legal obstacles to the use of video links?

No.

Technology used:

No information available.

Level of interpretation required:

No information available.

Simultaneous or in sequence interpretation:

No information available.

Interpretation required in which jurisdiction?

No information available.

Who pays for the interpretation?

No information available.

Bilateral or multilateral agreements

Bilateral conventions on judicial co-operation:
Austria, Belgium, Czech Republic, Estonia, France, Germany, Greece, Hungary, Italy, Luxemburg, Pakistan, Slovakia, Turkey.

Useful links:

International Mutual Legal Assistance in Civil Matters - Federal Office of Justice

(This page was last updated on 19 March 2014)

Conventions