SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
be aggrieved persons (exceptions apply, in par - ticular in corruption and bribery cases, as well as for felonies committed in bankruptcy). During a criminal investigation, the plaintiff has essentially the same party rights as the suspect, as set out below: • the right to access the file, with the right to take a copy and to use criminal evidence in any other proceedings (with the notable exception of states acting as plaintiffs where mutual legal assistance requests from those states are pending execution); in principle, there is no secrecy in the investigations. • the right to request the award of damages against the accused person when the plaintiff made an additional civil plaintiff declaration within the criminal proceedings; the award part of the criminal judgment has the same effect as a judgment issued by a civil court (it qualifies as such, in particular pursuant to Article 1 of the Lugano Convention on the jurisdiction and the recognition and enforce - ment of judgments in civil and commercial matters (the “Lugano Convention” )); • the right to be restituted with their property and assets; and • the right to be allocated with a monetary penalty or fine, objects and assets that have been forfeited, or the proceeds of their sale, compensatory claims and the amount of the good behaviour bond. 2.6 Judgment Without Trial Civil Default Judgments In civil proceedings, a party is in default if they fail to accomplish a procedural act within the set limitation period or do not appear when sum - moned to appear. The proceedings shall con - tinue without the act defaulted on unless the law provides otherwise (Article 147 paragraphs
1-2 SCCP). The court may on application grant a period of grace or summon the parties again for a new appearance provided the defaulting party shows credibly that they were not respon - sible for the default or were responsible only to a minor extent. The application must be submitted within ten days of the day on which the cause of default has ceased to apply. If notice of a deci - sion has been given to the parties, restitution may be requested only within six months after the decision has come into force (Article 148 SCCP). In the event that a party fails to attend the main hearing, the court shall consider the submissions made by the parties and may rely on the representations of the party present and on the information on file (Article 234 paragraph 1 SCCP). In other words, the court cannot dis - miss the party in default for this reason alone and still needs to appraise the evidence on file. The party in default must have been properly served with the summons to appear to be found in default (see 4.2 Service of Proceedings out of the Jurisdiction ). Criminal Judgment in Absentia In criminal proceedings, a trial can be conducted in absentia pursuant to Articles 366ff SCPP. If an accused who has been duly summoned fails to appear before the court of first instance, the court shall fix a new hearing and summon the person again or arrange for them to be brought before the court. If the accused fails to appear for the re-arranged trial or if it is not possible to bring them before the court, the trial may be held in the absence of the accused. Proceedings in absentia may only be held if the accused has previously had adequate opportunity in the pro - ceedings to comment on the offences of which they are accused and sufficient evidence is available to reach a judgment without the pres - ence of the accused.
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