Beiträge

Article 271 (1) of the Swiss Criminal Code: myth or reality?

A summary of the practical implications of this Swiss statutory provision in the context of civil proceedings pending outside of Switzerland

Philipp Fischer

Deborah Hondius

Proposition de citation: Philipp Fischer / Deborah Hondius, Article 271 (1) of the Swiss Criminal Code: myth or reality?, in : Jusletter 4 avril 2022

When a Swiss individual or legal entity is involved in civil proceedings pending outside of Switzerland, the practical implications of Article 271 (1) of the Swiss Criminal Code (which precludes the conduct of so-called «public authority acts» on Swiss soil) are a frequent topic of interest. This contribution seeks (i) to provide an overview of the practice of the Swiss authorities as regards the scope of this Swiss statutory provision in the context of civil proceedings pending outside of Switzerland and (ii) to present our thoughts as regards the application of Article 271 (1) of the Swiss Criminal Code to specific fact patterns which may arise in the context of cross-border civil litigation.

Table des matières

1. Introduction
2. In which context was Article 271 (1) SCC adopted?
- 2.1. The Jacob-Wesemann affair and the Spitzelgesetz
- 2.2. Interpretation of Article 271 (1) SCC by the Swiss authorities
3. Constitutive elements of Article 271 (1) SCC
4. Specific scenarios
- 4.1. Notification and transmission of documents
- 4.2. Collection of evidence
  - 4.2.1. Is the request for disclosure of a «coercive» nature?
  - 4.2.2. Is the information to be produced in evidence at the «free disposal» of the party requested to make the production?
  - 4.2.3. Obtaining documents from third parties
- 4.3. Experts opinions and affidavits
- 4.4. Witness hearings and interrogatories
5. Conclusion