SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
aside the opposition before the courts, where enforce - ment of the foreign decision will be requested. If the creditor succeeds, seizure of the Swiss assets of the debtor may be requested to and executed by the debt collection office over all the Swiss assets of the debtor up to the amount of the claims, subject to debt col - lection proceedings. Debt collection proceedings can be preceded by a request for post-trial attachment of Swiss assets if the debtor is domiciled in Switzerland. If the debtor is not domiciled in Switzerland, a request for attachment of Swiss assets must precede the debt collection pro - ceedings in order to create a forum for enforcement at the place of the assets (except in situations where the creditor can show a legitimate interest in seeking recognition outside of enforcement proceedings). The creditor will have to demonstrate a likelihood of the presence of Swiss assets in the request for attach - ment and cannot be granted an order for disclosure of assets by the court. The proceedings of attachment are conducted first ex parte, then inter partes in case the debtor opposes. The attachment proceedings will be conducted in parallel with the debt enforcement proceedings. If the creditor succeeds, the debt col - lection office will seize the attached assets and will release them in favour of the creditor. 5.2 Enforcement of Foreign Judgments In the case of foreign decisions, the recognition of foreign judgments is decided incidentally pursuant to the rules of the PILA and, where applicable, bilateral or multilateral treaties. Switzerland is a party to the Lugano Convention and to the New York Convention on the Recognition and Enforcement of Foreign Arbi - tral Awards, which applies erga omnes. 6. Privileges 6.1 Invoking the Privilege Against Self- Incrimination In civil proceedings, a party (claimant or defendant) may refuse to collaborate if the taking of evidence could expose a close relative within the meaning of Article 165 to criminal prosecution or civil liability (Arti - cle 163, paragraph 1, littera a, SCCP). The party does
not benefit from the protection against self-incrimi - nation. The court may not infer from a party’s or third party’s legitimate refusal to co-operate that the alleged fact is proven (Article 162, SCCP). If a party refuses to co- operate without motives, the court will take this into account when assessing the evidence (Article 164, SCCP). In criminal proceedings, the accused is not obliged to testify against themselves. In particular, they have the right to refuse to give evidence and to refuse to co-operate with the proceedings. They are, however, obliged to submit to the coercive measures provided for by law (Article 113, paragraph 1, SCPP). Proceed - ings shall continue even if the accused refuses to co- operate (Article 113, paragraph 2, SCPP). Switzerland being a state party to the European Con - vention on Human Rights (ECHR), the case law of the European Court of Human Rights (ECtHR) applies. In principle, and in the absence of any other decisive evi - dence collected by the law enforcement authorities, the use of the right to remain silent cannot be used against the accused or construed as a confession. However, in cases where there is sufficient evidence for a conviction, the silence of the accused may be used against them. An aggravation of the sentence can be justified only if one can infer a lack of remorse or awareness of wrongdoing from the silence. In insolvency proceedings, which are of administrative nature, the principle is reversed as the debtor has a duty to collaborate with the authorities. There is no statutory rule on the right to remain silent. However, in cases where parallel criminal proceedings are pend - ing, one can infer from ECtHR case law regarding pro - ceedings for tax fraud that a debtor who is also an accused in parallel criminal proceedings may refuse to testify before the insolvency authorities or office hold - ers where there is a risk that their declarations may very well be produced in the criminal proceedings. 6.2 Undermining the Privilege Over Communications Exempt From Discovery Client-attorney privilege is protected in both civil and criminal proceedings, and extends to communications
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