SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
to create a forum for enforcement at the place of the assets (except in situations where the creditor can show a legitimate interest in seek - ing recognition outside of enforcement proceed - ings). The creditor will have to demonstrate a likelihood of the presence of Swiss assets in the request for attachment and cannot be granted an order for disclosure of assets by the court. The proceedings of attachment are conducted first ex parte, then inter partes in case the debtor opposes. The attachment proceedings will be conducted in parallel with the debt enforcement proceedings. If the creditor succeeds, the debt collection office will seize the attached assets and will release them in favour of the creditor. 5.2 Enforcement of Foreign Judgments In the case of foreign decisions, the recognition of foreign judgments is decided incidentally pur - suant to the rules of the PILA and, where appli - cable, bilateral or multilateral treaties. Switzer - land is a party to the Lugano Convention and to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which applies erga omnes. 6. Privileges 6.1 Invoking the Privilege Against Self- Incrimination In civil proceedings, a party (claimant or defend - ant) may refuse to collaborate if the taking of evidence could expose a close relative within the meaning of Article 165 to criminal prosecution or civil liability (Article 163 paragraph 1 littera a SCCP). The party does not benefit from the protection against self-incrimination. The court may not infer from a party’s or third party’s legitimate refusal to co-operate that the alleged fact is proven (Article 162 SCCP). If a
party refuses to co-operate without motives, the court will take this into account when assessing the evidence (Article 164 SCCP). In criminal proceedings, the accused is not obliged to testify against themself. In particular, they have the right to refuse to give evidence and to refuse to co-operate with the proceed - ings. They are, however, obliged to submit to the coercive measures provided for by law (Article 113 paragraph 1 SCPP). Proceedings shall con - tinue even if the accused refuses to co-operate (Article 113 paragraph 2 SCPP). Switzerland being a state party to the European Convention on Human Rights (ECHR), the case law of the European Court of Human Rights (ECtHR) applies. In principle, and in the absence of any other decisive evidence collected by the law enforcement authorities, the use of the right to remain silent cannot be used against the accused or construed as a confession. However, in cases where there is sufficient evidence for a conviction, the silence of the accused may be used against them. An aggravation of the sen - tence can be justified only if one can infer a lack of remorse or awareness of wrongdoing from the silence. In insolvency proceedings, which are of admin - istrative nature, the principle is reversed as the debtor has a duty to collaborate with the authori - ties. There is no statutory rule on the right to remain silent. However, in cases where parallel criminal proceedings are pending, one can infer from ECtHR case law regarding proceedings for tax fraud that a debtor who is also an accused in parallel criminal proceedings may refuse to testify before the insolvency authorities or office holders where there is a risk that their declara - tions may very well be produced in the criminal proceedings.
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