SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
Criminal Proceedings In criminal proceedings, holders of assets of the accused or of third parties have the duty to hand over items and assets that may be seized pursuant to Articles 263 paragraph 1 and 265 paragraph 1 SCPP ( 1.7 Prevention of Defend- ants Dissipating or Secreting Assets ). If and only if they refuse to comply with the invitation of handing over, the public prosecutor will issue disclosure orders pursuant to Article 263 SCPP. The accused is not subject to the duty to hand over (Article 365 paragraph 2 SCPP) but may be subject to criminal disclosure orders and to searches, where they may request the seal - ing of items and assets protected under Article 264 SCPP. Suspicion of detention in bad faith is enough to obtain the disclosure of assets for - mally held by third parties. Subject to restrictions justified by legally pro - tected interests such as privacy of third parties, banking secrecy does not apply. Insolvency Proceedings The scope of the duty to disclose assets in insolvency proceedings (Article 222 paragraph 1 DCBA) – should they be domestic or ancil - lary proceedings, is narrower than in criminal proceedings, since the duty to disclose assets and information only applies to the debtor, usu - ally excluding nominees or ultimate beneficial owners of the debtor. The debtor cannot invoke banking secrecy to resist an insolvency disclo - sure 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 dis - closure 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 pursu - ant to Article 323 paragraph 4 SPC. In any type of judicial proceedings, Article 292 SPC provides that any person who fails to com - ply with an official order that has been issued by a competent authority or public official, under the threat of criminal sanctions for non-compli - Article 158 of the Swiss Code of Civil Proce - dure (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 evidence may also be granted if the trial will take place outside of Swit - zerland. In practice, however, this Article has a very narrow scope. Conservatory measures may also be requested before or during proceedings if the applicant can demonstrate 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, littera a SCPP; see 1.7 Prevention ance, shall be liable to a fine. 2.2 Preserving Evidence Civil Proceedings
344 CHAMBERS.COM
Powered by FlippingBook