SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
of Defendants Dissipating or Secreting Assets and 2.1 Disclosure of Defendants՚ Assets ). If the holder of these items and assets refuses to comply, searches can be ordered at their domi - cile, seat or premises. These searches are con - ducted under warrant of the prosecutor and with the support of the police. Private parties cannot conduct searches or take any coercive measures against any other parties. 2.3 Obtaining Disclosure of Documents and Evidence From Third Parties There are several alternative ways of obtaining evidence from third parties: • civil precautionary taking of evidence and civil production orders; • criminal disclosure and search orders; and • orders of disclosure of information by the In principle, pre-trial collection of evidence is not available in Switzerland, subject to very narrow exceptions. For example, as mentioned in 2.2 Preserving Evidence , Article 158 SCCP pro - vides for the precautionary taking of evidence. During the civil trial, the claimant has to assert its damage by quantified prayers of relief and to allege all the facts necessary to prove the damage immediately in its first submissions. Therefore, requesting the production of evi - dence during a civil trial is an inefficient strategy in fraud-related cases. Criminal Disclosure Orders As mentioned in 1.7 Prevention of Defendants Dissipating or Secreting Assets , 2.1 Disclo- sure of Defendants՚ Assets and 2.2 Preserv- ing Evidence , items and assets belonging to an bankruptcy authorities. Civil Disclosure Orders
accused or to a third party may be seized if it is expected that the items or assets: • will be used as evidence; • will be used as security for procedural costs, monetary penalties, fines or compensation; • will have to be returned to the persons suffer - ing harm; • will have to be forfeited; or • will be used to cover compensation claims made by the state in accordance with Article 71 SPC. As also mentioned in 2.1 Disclosure of Defend- ants՚ Assets , 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 Article 263 paragraph 1 SCPP. Where the assets are held with Swiss banks, the types of documents that may be obtained include banking statements, SWIFT messages, KYC documents, visit reports and compliance reports. In principle, evidence obtained in criminal pro - ceedings can be used in any other parallel pro - ceedings, in Switzerland or abroad (see 2.5 Criminal Redress ). Pre-trial Collection of Evidence in Insolvency Proceedings In insolvency proceedings, the debtor is obliged, under threat of penal law sanctions, to divulge all assets to the bankruptcy office and to hold them - self at the office’s disposal (Article 222 DCBA). The debtor must open premises and cupboards at a bankruptcy official’s request. If necessary, the official may use police assistance. Third par - ties who have custody of assets belonging to the debtor or against whom the debtor has claims have the same duty to divulge and deliver up as
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