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Applicable
law
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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)
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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)
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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)
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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)
Detailed
information
A more detailed report on Mutual Assistance can be found in
the attached article by Dr. Peter Honegger.
►
Mutual
assistance details
Frequently
asked questions
May US attorneys and US 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:
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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.
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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 US proceeding, but particularly the
information sought and explain why such information is relevant for the US
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 US proceedings.
To whom must a request for judicial assistance be addressed?
The request must be channeled through the US central
authority, and addressed to the Swiss central authority. Questions can be
addressed to the following authorities in the US 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
Switzerland
Phone: 0041-31-322-4301
Fax: 0041-31-322-5380
Is there a sample request for judicial assistance?
The authorities mentioned above will be supportive both to US
officials and private parties so as to avoid inadequate requests. Request must
meet the following criteria:
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Civil matters: A
model letter of request is annexed to the Hague Convention on the Taking of
Evidence Abroad in Civil or Commercial Matters.
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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
Judicial Assistance in Civil Matters:
Judicial Assistance in Criminal Matters:
Useful
links
May 2006 | 
