Taking of evidence in Switzerland for a trial abroad is governed by three different bodies of law:
- first and most importantly, the law of international conventions; more specifically the Hague Conventions of 1954 and 1970;
- where there is no regulation by an international convention, the taking of evidence is ruled by federal law.
- where neither international nor federal law applies, taking of evidence is governed by the law of the canton where the taking of evidence shall take place.
The Hague Conventions
For the large number of states party to both Hague conventions, the Hague Convention of 1970 replaces the Hague Convention of 1954 regarding the rules on the taking of evidence abroad (Article 29, Hague Convention of 1970). Only the more liberal Hague Convention of 1970 will therefore be discussed here.
To improve mutual judicial cooperation in civil and commercial matters and to reconcile the differing legal philosophies existing in the international community, the Hague Convention 1970 provides a central authority mechanism. Under this mechanism, a court of a member state seeking access to evidence located in another member state sends a letter of request to the central authority which is, with limited exceptions, obliged to execute the foreign letter of request and forward it to the appropriate local court for execution. The obtained evidence is then returned to the requesting court. With regard to the other methods of obtaining evidence abroad provided by the Convention, ie taking of evidence by diplomatic officers, consul agents, and commissioners (Article 15, 16 and 17 of the Convention), the central authority mechanism enables states to safeguard their judicial sovereignty by supervising these foreign activities undertaken on their territory. Under Article 35 of the Convention, Switzerland declared 26 different cantonal bodies as central authorities. However, because foreign member states may have difficulty in identifying the competent authority, requests for the taking of evidence may also be addressed to the Federal Justice and Police Department in Bern, which will forward them to the appropriate cantonal central authority.
Article 11 of the Federal Statute on Private International Law provides for requests of a non-contracting state of an international convention to take evidence in Switzerland for a trial abroad. Under paragraph 1 of the Article, which is a conflict rule, acts of judicial assistance are carried out according to the law of the canton where they are performed. On a motion of the requesting authority, however, foreign procedures may be applied according to paragraphs 2 and 3.
Under the conflict rule in Article 11, paragraph 1 of the Federal Statute on Private International Law , cantonal law chiefly applies where there is no regulation by an international convention. As there are 26 different cantonal statutes on civil procedure in force today, the particular statute of the canton where evidence shall be taken must be studied.
Finally, it must be noted that any circumvention of these rules constitutes a crime in Switzerland. Article 271 of the Swiss Penal Code provides that an unauthorized person taking any action in Switzerland within the powers of the Swiss public authorities, makes him- or her-self criminally liable.
André Lebrecht and Gion Jegher