Evidence may be obtained in Switzerland in two ways: under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters or by the letters rogatory process. In addition, the Swiss penal code 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.
The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters
As of January 1, 1995, the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters entered into effect for Switzerland. The convention codifies the taking of evidence on notice and commission and the compulsion of evidence pursuant to a letter of request. Under the convention, a judicial authority in the United States sends a letter of request to the appropriate Swiss Central Authority in accordance with the convention. (See Martindale-Hubbell Law Directory for a model letter of request.)
Switzerland has 26 separate Central Authorities, one for each canton. A letter of request should be addressed to the appropriate central authority in the official language of that authority (i.e., French, German, or Italian; see the attached list of Central Authorities for guidance on the appropriate language).
The documents establishing the execution of the Letter of Request will be returned by the same means that the original request was sent.
In a reservation made at the time of ratification of the treaty, Switzerland declared that letters of request issued for the purpose of obtaining pre-trial discovery of documents will not be executed if:
- the request has no direct and necessary link with the proceedings in question; or
- a person is required to indicate what documents relating to the case are or were in his/her possession or keeping are at his/her disposal; or
- a person is required to produce documents other than those mentioned in the request for legal assistance, which are probably in his/her possession or keeping or at his/her disposal; or
- the valid interests of the person from whom evidence is requested may be compromised.
For information on Letters Rogatory in Switzerland, please refer to the separate Judicial Assistance flyer on this topic. Please note that this information is only applicable in civil or commercial cases. To obtain evidence in a criminal case in Switzerland, please refer to the U.S.-Swiss Legal Assistance Treaty: The Treaty with the Swiss Confederation on Mutual Assistance in Criminal Matters with related notes, signed at Bern, May 25, 1973; entered into force January 23, 1977; 27 UST 2019; TIAS 8302.
Taking of Evidence by Consular Officers
Voluntary depositions: Prior Swiss permission is required before consular officers can take voluntary depositions from any party, regardless of nationality. This permission must be obtained from the Swiss Department of Justice and police as follows: The requesting party must send an official Hague Convention letter of request to the appropriate Cantonal Central Authority requesting permission for a consular officer to take the deposition. The Central Authority will forward the request to the Swiss Federal Office for Police Matters. After permission is granted, parties involved in taking the deposition (including the U.S. consular officer) must schedule a mutually convenient time for the procedure. Unfortunately, space is very limited at the Embassy and Consulate, which will make scheduling difficult. For further information on this process please see the informational flyer provided by the Swiss Federal Office of Justice at http://www.admin.ch/ch/e/rs/312_0/index.html#id-ni39-ni41-3.
The U.S. Embassy, Consulate General and Consular Agency do not have trained legal stenographers, typists or interpreters available. The party requiring the deposition may want to provide their own. The fee for the services of a consular officer in taking depositions is currently U.S. $235.00 per hour, or fraction thereof. A heavy workload and small staff make it impossible for consular staff members to serve as stenographers, typists or interpreters.
Taking of Evidence by an Appointed Commissioner: A commissioner may take voluntary evidence if prior Swiss government approval is obtained (see above).
Please note: The information in this circular relating to the legal requirements of a specific foreign country is provided for general information only. Questions involving interpretation of specific foreign laws should be addressed to foreign counsel.