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Details on Site Contribution
 
Site contribution
Date: May 2015
Prepared by:
Dr. Peter C. Honegger, LL.M.
Niederer Kraft & Frey
Bahnhofstrasse 13
8001 Zurich
Phone:   +41 58 800 80 00
Fax:   +41 58 800 80 80
E-Mail:   peter.c.honegger@nkf.ch
 
Andreas Kolb
KOLB International Tax Services
Bahnhofstrasse 106
8001 Zurich
Phone:   +41 44 813 88 88
Fax:   +41 44 813 88 90
E-Mail:   andreas.kolb@kolblaw.ch
Introduction
Evidence may be obtained in Switzerland in civil, criminal and administrative matters under applicable Treaties (i.e. the Hague Evidence Convention, the Treaty in Criminal Matters and the Double Taxation Treaty) and implementing Swiss legislation. Further, Switzerland permits service of process in civil matters (under the Hague Service Convention).
In contrast, the Swiss penal code, art. 271, provides that attorneys attempting to take a deposition or serve process in Switzerland outside of these authorized methods are subject to arrest on criminal charges.
Applicable Law
  • The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters concluded March 18, 1970 (UST 2555, TIAS No 7444, SR/RS 0.274.132)
  • The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters concluded November 15, 1965 (20 UST 361; TIAS no 6638, SR/RS 0.274.131)
  • The American-Swiss Treaty on Mutual Assistance in Criminal Matters entering into effect as of January 1, 1977 (27 UST 2019, TIAS No. 8302; SR/RS 0.351.933.6)
  • The Swiss-American Convention of the Avoidance of Double Taxation on Income entering into effect as of January 1, 1998/February 1, 1998 ([2] UST [1760], TIAS No [2326]; SR/RS 0.672.933.61); Protocol amending the Convention for the Avoidance of Double Taxation on Income, signed at Washington on September 23, 2009, not yet in force (http://www.news.admin.ch/NSBSubscriber/message/attachments/16933.pdf).
    Detailed Information
    A more detailed report on Mutual Assistance can be found in the attached article by Dr. Peter Honegger and Andreas Kolb.
  •  
  • Mutual Assistance in Switzerland
    Frequently Asked Questions
  • May U.S. attorneys and U.S. officials themselves gather evidence in Switzerland?
    No. The gathering of evidence for use in foreign proceedings is considered to be an official act within the meaning of art. 271 of the Swiss Penal Code and may, as a rule, be performed by Swiss authorities only. Foreign authorities and private parties, however, are prohibited from gathering evidence for use in foreign proceedings on the Swiss territory.
  • Is it possible to collect evidence that is otherwise protected by Swiss banking secrecy?
    Yes, but, whenever a request for judicial assistance in civil or criminal matters is granted, Swiss proceedings of a civil or criminal nature will be instituted, according to the nature of the request. Banking secrecy can be set as follows:
  • In civil proceedings the duties to testify differ from canton to canton: In eight cantons bank secrecy remains intact and the bank does not have to testify. In eleven cantons the bank must testify and banking secrecy is set aside. In the remaining cantons it is the task of the judge to decide whether banking secrecy or the duty to testify shall prevail.
  • In criminal proceedings bank officials must testify as witnesses and banking secrecy is, therefore, set aside.
  • When is a request for judicial assistance deemed to be a "fishing expedition"?
    The request must be substantiated and specify not only the parties to and the subject of the U.S. proceeding, but particularly the information sought and explain why such information is relevant for the U.S. proceedings. If, for example, bank information is sought from Switzerland, the request must specify the name and the place of the bank, the name of the account holder, and explain why this information is relevant for the U.S. proceedings.
    Under the Double Taxation Treaty in force and according to the recent jurisprudence of the Federal Administrative Court, a request for administrative assistance must not necessarely contain the name of the taxpayer. The Court has accepted that in a specific case the administrative assistance has been granted based on certain criterias, but on a no name basis. This will no longer be possible under the revised Double Taxation Treaty which is ready to be ratified.
  • To whom must a request for judicial assistance be addressed?
    The request must be channeled through the U.S. central authority, and addressed to the Swiss central authority. Questions can be addressed to the following authorities in the U.S. or in Switzerland:
    Department of Justice
    Office of International Judicial Assistance
    Civil Division
    Washington, D.C. 20530
    U.S.A.
    Phone: (202) 307-0983
    Fax: (202) 514-6584
    The Federal Justice and Police Department
    Federal Office of Justice
    Section for Mutual Legal Assistance
    Bundesrain 20
    3003 Bern
    Phone: +41 31 322 43 01
    Fax: +41 31 322 53 80
  • Is there a sample request for judicial assistance?
    The authorities mentioned above will be supportive both to U.S. officials and private parties so as to avoid inadequate requests. Request must meet the following criteria:
  • Civil matters: A model letter of request is annexed to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.
  • Criminal matters: The American-Swiss Treaty on Mutual Assistance in Criminal Matters does not contain a model request but, in art. 29, lists the specific information necessary under the that Treaty.
    Overview on the procedures
    Useful Links
  •  
  • Judicial Assistance - U.S. Embassy Bern
  •  
  • Swiss representations: United States of America
  •  
  • Travel.State.Gov