SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
If it is possible to serve the judgment in absentia personally, the person convicted shall be notified that they have ten days to make a written or oral application to the court that issued the judgment for it to re-assess the case in a new trial. The court shall reject the application if the person convicted was duly summoned, but failed to appear at the trial without excuse. If the con - victed person again fails to appear for the trial, the judgment in absentia shall remain valid. The court shall issue a new judgment, which is sub - ject to the customary rights of appeal. 2.7 Rules for Pleading Fraud There is no specific rule for pleading fraud. General criminal sanctions for crimes against the administration of justice (such as false accusa - tions or misleading the judicial authorities) and crimes against honour (such as defamation) apply to any parties to criminal and civil pro - ceedings. The legal provisions on the legal profession and the rules of professional conduct described in 1.6 Rules of Pre-action Conduct also apply. 2.8 Claims Against “Unknown” Fraudsters It is not possible to institute civil proceedings against unknown defendants. Criminal investigations can and are routinely ini - tiated against persons unknown. Articles 376ff SCPP provide for the possibility to proceed to independent forfeiture of assets or replacement claims where requirements of forfeiture are met, namely that the assets are demonstrated to be the proceeds of crime, and the third party who received such proceeds is
not in good faith or did not provide adequate consideration for such assets (Articles 69ff SPC). 2.9 Compelling Witnesses to Give Evidence In civil proceedings, if a third party refuses to co-operate without justification (eg, protection against self-incrimination), the court may impose a disciplinary fine of up to CHF1,000, threaten fines under Article 292 SPC, order the use of compulsory measures and charge the third party the costs caused by the refusal (Article 167 para - graph 1 SCCP). In criminal proceedings, any person who refus - es to testify without having the right to do so may be liable to a fixed penalty fine and may be required to pay the costs and compensation incurred as a result of such refusal. If a person who is obliged to testify insists on refusing to do so, they will again be requested to testify and cautioned as to a fine under Article 292 SPC. In the event of continued refusal, criminal proceed - ings for a breach of Article 292 SPC will be initi - ated (Article 176 SCPP), which may only result in a conviction leading to a fine. Notwithstanding the relatively lenient sanctions for witnesses who refuse to testify, in any judicial proceedings, false testimony related to the facts of the case is a felony punished by Article 307 paragraphs 1-2 SPC. Persons providing infor - mation (in particular, plaintiffs and persons who cannot be excluded as the perpetrator of or as a participant in the offence under investigation or another related offence) may be subject to criminal prosecution for false accusation, for misleading judicial authorities and for assisting offenders (Articles 178ff SCPP).
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