SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
Insolvency Proceedings The scope of the duty to disclose assets in insol - vency proceedings (Article 222, paragraph 1, DCBA) – should they be domestic or ancillary proceedings, is narrower than in criminal proceedings, since the duty to disclose assets and information only applies to the debtor, usually excluding nominees or ultimate beneficial owners of the debtor. The debtor cannot invoke banking secrecy to resist an insolvency dis - closure order. The piercing of the corporate veil may be obtained but under the strict requirements of corporate law (see 3.2 Claims Against Ultimate Beneficial Owners ). The debtor who refuses to comply with a disclosure order, and so conceals assets, may be prosecuted for fraudulent bankruptcy and fraud against seizure and sentenced to a custodial sentence not exceeding five years (Article 163, paragraph 1, SPC). It is also liable to a fine pursuant to Article 323, paragraph 4, SPC. In any type of judicial proceedings, Article 292, SPC provides that any person who fails to comply with an official order that has been issued by a competent authority or public official, under the threat of criminal sanctions for non-compliance, shall be liable to a fine. 2.2 Preserving Evidence Civil Proceedings Article 158 of the Swiss Code of Civil Procedure (SCCP) provides for the possibility of taking evidence located in Switzerland at any time if the applicant can demonstrate a likelihood that the evidence is at risk or that it has a legitimate interest in obtaining the requested evidence. The precautionary taking of evi - dence may also be granted if the trial will take place outside of Switzerland. In practice, however, this Arti - cle has a very narrow scope. Conservatory measures may also be requested before or during proceedings if the applicant can demon - strate a likelihood that a right to which it is entitled has been violated or a violation is anticipated and that the violation threatens to cause not easily reparable harm to the applicant. They can also be requested in support of foreign proceedings pursuant to Article 10, PILA.
Criminal Proceedings Items and assets belonging to the accused or to a third party may be frozen if it is expected that they will be used as evidence (Article 263, paragraph 1, lit - tera a, SCPP; see 1.7 Prevention of Defendants Dis- sipating or Secreting Assets and 2.1 Disclosure of Defendants’ Assets ). If the holder of these items and assets refuses to comply, searches can be ordered at their domicile, seat or premises. These searches are conducted under warrant of the prosecutor and with the support of the police. Private parties cannot conduct searches or take any coercive measures against any other parties. 2.3 Obtaining Disclosure of Documents and Evidence From Third Parties There are several alternative ways of obtaining evi - dence from third parties: • civil precautionary taking of evidence and civil production orders; • criminal disclosure and search orders; and • orders of disclosure of information by the bank - ruptcy authorities. Civil Disclosure Orders In principle, pre-trial collection of evidence is not avail - able in Switzerland, subject to very narrow excep - tions. For example, as mentioned in 2.2 Preserving Evidence , Article 158, SCCP provides for the precau - tionary taking of evidence. During the civil trial, the claimant has to assert its damage by quantified prayers of relief and to allege all the facts necessary to prove the damage immediately in its first submissions. Therefore, requesting the pro - duction of evidence during a civil trial is an inefficient strategy in fraud-related cases. Criminal Disclosure Orders As mentioned in 1.7 Prevention of Defendants Dissi- pating or Secreting Assets , 2.1 Disclosure of Defend- ants’ Assets and 2.2 Preserving Evidence , items and assets belonging to an accused or to a third party may be seized if it is expected that the items or assets: • will be used as evidence;
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