SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
the application if the person convicted was duly sum - moned, but failed to appear at the trial without excuse. If the convicted person again fails to appear for the trial, the judgment in absentia shall remain valid. The court shall issue a new judgment, which is subject to the customary rights of appeal. 2.7 Rules for Pleading Fraud There is no specific rule for pleading fraud. General criminal sanctions for crimes against the administration of justice (such as false accusations or misleading the judicial authorities) and crimes against honour (such as defamation) apply to any parties to criminal and civil proceedings. The legal provisions on the legal profession and the rules of professional conduct described in 1.6 Rules of Pre-Action Conduct also apply. 2.8 Claims Against “Unknown” Fraudsters It is not possible to institute civil proceedings against unknown defendants. Criminal investigations can and are routinely initiated against persons unknown. Articles 376ff, SCPP provide for the possibility to pro - ceed to independent forfeiture of assets or replace - ment claims where requirements of forfeiture are met, namely that the assets are demonstrated to be the proceeds of crime, and the third party who received such proceeds is not in good faith or did not provide adequate consideration for such assets (Articles 69ff, SPC). 2.9 Compelling Witnesses to Give Evidence In civil proceedings, if a third party refuses to co-oper - ate without justification (eg, protection against self- incrimination), the court may impose a disciplinary fine of up to CHF1,000, threaten fines under Article 292, SPC, order the use of compulsory measures and charge the third party the costs caused by the refusal (Article 167, paragraph 1, SCCP). In criminal proceedings, any person who refuses to testify without having the right to do so may be liable to a fixed penalty fine and may be required to pay the
costs and compensation incurred as a result of such refusal. If a person who is obliged to testify insists on refusing to do so, they will again be requested to tes - tify and cautioned as to a fine under Article 292, SPC. In the event of continued refusal, criminal proceedings for a breach of Article 292, SPC will be initiated (Arti - cle 176, SCPP), which may only result in a conviction leading to a fine. Notwithstanding the relatively lenient sanctions for witnesses who refuse to testify, in any judicial pro - ceedings, false testimony related to the facts of the case is a felony punished by Article 307, paragraphs 1-2, SPC. Persons providing information (in particu - lar, plaintiffs and persons who cannot be excluded as the perpetrator of or as a participant in the offence under investigation or another related offence) may be subject to criminal prosecution for false accusation, for misleading judicial authorities and for assisting offenders (Articles 178ff, SCPP). 3. Corporate Entities, Ultimate Beneficial Owners and Shareholders 3.1 Imposing Liability for Fraud on a Corporate Entity Corporate Civil Liability A legal entity may be liable in torts for the acts of indi - viduals. Under Article 55 (2) of the Swiss Civil Code (SCC), the governing officers bind the legal entity by concluding transactions and by their other actions. Under Article 55, paragraph 1, SCO, the employer is liable for the damage caused by its employees in the performance of their work unless it proves that it took all due care to avoid damage of this type or that the loss or damage would have occurred even if all due care had been taken. Corporate Criminal Liability On the criminal side, Swiss law provides for two types of criminal corporate liability for Swiss or foreign legal entities: • subsidiary criminal liability if it is not possible to attribute to a specific person a felony or misde - meanour committed within a company due to its
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