LIECHTENSTEIN Law and Practice Contributed by: Matthias Niedermüller, Alexander Milionis and Fabian Rischka, Niedermüller Attorneys-at-Law
If the opponent is ordered to produce docu - ments but illegally refuses to comply with the order, there is no option to force the production. In that case, the court must assess such refusal at its discretion. An unjustified refusal to comply with such court order therefore usually results in the court assuming the facts to the detriment of the refusing part. Additionally, certain documents are protected by the secrecy rights of certain persons and thus may not serve as evidence unless the person that is entitled to invoke the secrecy rights does not make use of these rights. Therefore, in par - ticular, documents falling under client–attorney privilege, the trustee secrecy, tax secrecy and banking secrecy are generally protected in civil proceedings. Despite the lack of pre-trial discovery, Liechten - stein law offers other means to obtain the evi - dence required to assert and pursue claims. By way of example, claims for information and dis - closure may be raised against contractual par - ties or based on other special legal relationships In contrast to civil court proceedings, criminal proceedings aim to clarify the suspected crimi - nal activity and pursue the perpetrators. For this purpose, the criminal authorities conduct effective and far-reaching investigations and also impose coercive measures such as house searches, seizing documents, freezing assets, and interrogating witnesses and suspects. Such investigations prove to be very effective in clari - fying an uncertain set of facts. (eg, beneficiary status). Criminal Proceedings Thus, in cases where criminal activity is sus - pected, a creditor often also initiates criminal proceedings, which may lead to substantial dis -
covery of documents in the course of criminal investigation. The results of the investigations and, in particular, the seized documents then become accessible to the damaged private party – as well as to any interested parties – and may then be freely used to pursue the civil claims against all possible defendants. 2.2 Preserving Evidence The preservation of evidence may be applied for at any stage of the legal dispute – even before the commencement – if it is feared that the evi - dence will otherwise be lost or its use will be made more difficult. In such case, any party to a pending and also future proceeding can apply to the court for preservation of the following categories of evi - dence: • on-site inspection by the court; • witness testimony; and • expert witness statement and opinions. The requesting party must state the facts with regard to which evidence is to be taken, as well as the means of evidence (eg, witness or expert) and also the opposing party. Generally, a decision on the application will be made without prior oral hearing. However, the opposing party will be heard unless there is imminent danger. The order granting the appli - cation may not be appealed. The costs are to be borne by the requesting party and become procedural costs of a later proceeding. The civil law rules for preservation of evidence, however, do not allow for physical searches for documents at the defendant’s residence or
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