SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
Before or in parallel to civil proceedings, a person aggrieved by fraud may file a criminal complaint before the law enforcement authorities. Any individual or legal entity whose rights, as legally protected by the applicable provision of the SPC, have been directly harmed by a crime is deemed to be an aggrieved per - son and may be admitted as plaintiffs. Persons who are indirectly aggrieved by a crime, such as the shareholders, the directors, the employ - ees, the creditors or the assignees of the direct vic - tim of the crime are not considered to be aggrieved persons (exceptions apply, in particular in corruption and bribery cases, as well as for felonies committed in bankruptcy). During a criminal investigation, the plaintiff has essen - tially the same party rights as the suspect, as set out below: • the right to access the file, with the right to take a copy and to use criminal evidence in any other proceedings (with the notable exception of states acting as plaintiffs where mutual legal assistance requests from those states are pending execution) – in principle, there is no secrecy in the investiga - tions; • the right to request the award of damages against the accused person when the plaintiff made an additional civil plaintiff declaration within the criminal proceedings – the award part of the criminal judgment has the same effect as a judg - ment issued by a civil court (it qualifies as such, in particular pursuant to Article 1 of the Lugano Con - vention on the jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the “Lugano Convention”)); • the right to be restituted with their property and assets; and • the right to be allocated with a monetary penalty or fine, objects and assets that have been forfeited, or the proceeds of their sale, compensatory claims and the amount of the good behaviour bond. 2.6 Judgment Without Trial Civil Default Judgments In civil proceedings, a party is in default if they fail to accomplish a procedural act within the set limi -
tation period or do not appear when summoned to appear. The proceedings shall continue without the act defaulted on unless the law provides otherwise (Article 147, paragraphs 1-2, SCCP). The court may on application grant a period of grace or summon the parties again for a new appearance provided the defaulting party shows credibly that they were not responsible for the default or were responsible only to a minor extent. The application must be submit - ted within ten days of the day on which the cause of default has ceased to apply. If notice of a decision has been given to the parties, restitution may be requested only within six months after the decision has come into force (Article 148, SCCP). In the event that a party fails to attend the main hearing, the court shall con - sider the submissions made by the parties and may rely on the representations of the party present and on the information on file (Article 234, paragraph 1, SCCP). In other words, the court cannot dismiss the party in default for this reason alone and still needs to appraise the evidence on file. The party in default must have been properly served with the summons to appear to be found in default (see 4.2 Service of Proceedings out of the Jurisdic- tion ). Criminal Judgment in Absentia In criminal proceedings, a trial can be conducted in absentia pursuant to Articles 366ff, SCPP. If an accused who has been duly summoned fails to appear before the court of first instance, the court shall fix a new hearing and summon the person again or arrange for them to be brought before the court. If the accused fails to appear for the re-arranged trial or if it is not possible to bring them before the court, the trial may be held in the absence of the accused. Proceedings in absentia may only be held if the accused has previ - ously had adequate opportunity in the proceedings to comment on the offences of which they are accused and sufficient evidence is available to reach a judg - ment without the presence of the accused. If it is possible to serve the judgment in absentia per - sonally, the person convicted shall be notified that they have ten days to make a written or oral applica - tion to the court that issued the judgment for it to re- assess the case in a new trial. The court shall reject
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