Switzerland: Interrogation Of Witnesses In The Different Jurisdictions

Interesting Aspects of the Revision of the Procedural Law in Switzerland for the foreign Litigants

1. INTRODUCTION

The Swiss tiny territory, which used to grant to its cantons the right to organize their courts and the procedural laws governing them, decided to fuse 26 different procedural laws, as many as Swiss cantons. Although the material law has been standardized for more than one century (civil law, law of contract) and that the Cantons are required to enforce it, the practical situations still arouse some questions to which the codes may give completely different answers. To make the matter worse, there is much custom that only the local lawyers are able to master. Hence, the leading of proceedings out of one's own canton turns out to be a sort of difficult, laborious and perilous undertaking.

For the litigants, clients of the attorneys in charge of their cases, the current situation involves a lot of additional costs. Indeed, every time that one passes the borders of a canton, he has to brief a new attorney, needing the whole context of the case to fulfil his tasks correctly and efficiently.

Likewise, the multiplicity of the procedural laws also hinders the free movement of lawyers inside the country, whereas it is a personal right under the constitution. These circumstances have also a detrimental effect on the liberty of the choice of the lawyer, because one has to be assisted by a practitioner of the jurisdiction in question, who is not the lawyer that the client trusts.

To deal with the most obvious improprieties, the case law of the federal Court and provisions widely scattered in the federal legislation made up rules that are crucial to enforce the civil law. To enhance this split in the federal law and the cantonal one, the international law is coming on top of it. It forms a third level of procedure, especially regarding civil cooperation and enforcement of judgements.

On the 12^th March 2000, the people and the cantons voted for the article 122 of the new federal Constitution of the 8^th October 1999 which allows the Confederation – to the exclusion of the Cantons – to legislate about the procedural law.

This revision was preceded by a debate related to the role and the effectiveness of justice, such as those that took place in the European Union, the Council of Europe and the countries adjoining Switzerland.

Of course the new federal procedural law is not all made up but extensively inspired by the existing cantonal ones.

The commission that drew up the text did not opt for the insertion of the class action in the act. They thought that the jointly interested parties' action, the introduction of third parties, the instituting proceeding and the impleader offer a satisfactory system to institute and run collective actions.

In our opinion, that's no way to resolve the current problems. In particular with regard to civil liability involving an intricate structure of facts that affects many plaintiffs who were wronged by one or few authors in similar circumstances¹. If one wants to get some results equivalent to those of the class action without confronting difficulties arisen by proceedings that have hundreds, or even thousands of parties, only claiming damages in the criminal case offers an acceptable option in terms of practicability and rational management of the wronged people's interests. For this reason, the CPC² provides for that actions resulting from illicit acts fall within the competence of the same jurisdiction as the one of the criminal court where the wronged parts can assert their right to compensation³.

The new law also leaves out the action for the actual payment of debts, governed by the federal bankruptcy act (FBA)⁴. To obtain an enforceable judgement for these matters is then limited to a cantonal level. The actual fulfilment of other performances – allowances in kind – is currently regulated by the cantonal procedural laws and will become a CPC chapter. To simplify as well as accelerate this procedure, the court passing judgement on the merits will also be able to order the necessary measures for the actual performance of dues (art. 335, direct performance). So the party winning the case will have the chance to act as soon as the judgement is enforceable (measures of replacement or call to the police for instance) without having to resort to a court of enforcement.

On the other hand, the CPC applies every time that the FBA refers a case to the ordinary courts or that the decision requiring enforcement is made by a court⁵. Thus, the pre-existing link between these two laws has been maintained. For the foreign jurists, this division of the procedures, all of a civil nature, shows a certain amount of difficulty.

The article 2 CPC mentions the pre-eminence of international law and confirms the will of Switzerland to respect the procedural guarantees of the European Convention on Human Rights in particular (ECHR): the right to a fair hearing, to an independent and impartial bench established by law, to a judgement after trial and a fair procedure, to equal means and facilities, to the free legal assistance, the right to proof and to the participation in its production, and finally the right to proceedings in open court within a reasonable time. The hearing and the legal representation of the children were improved as required by the United Nations Convention on the Rights of the Child and the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

The 1999 bilateral Agreement on the Free Movement of Persons between Switzerland and the European Union, which came into force on 1 June 2002, adapted to Swiss law by the Free Movement of Lawyers Act. It allows those originating from the Member States of the EU or the EFTA (European Free Trade Association) to represent the parties in Switzerland.

Finally, let's mention the Lugano "EVEX" Convention and the bilateral and multilateral treaties governing the recognition and enforcement of foreign judgements. This latter has only a limited scope when civil proceedings are at national level.

The reach of the law stops to cantonal disputes. The federal civil procedural law of 4 December 1947⁶ covers proceedings before the federal Court: this law applies to cases that federal Court deals with as a unique jurisdiction and also to matters before the federal jurisdictions in general, on a subsidiary basis.

Switzerland has a domestic arbitration law mainly governed by the Intercantonal Arbitration Agreement. These provisions will be replaced by the CPC 3rd section on arbitration. This paper won't go to any details because it is significant for the Swiss parties and national litigation only.

The preliminary report of the Swiss Federal Council sets out the lines of the new procedural law very well. We'll quote some excerpts⁷:

The present report does not aim to explain the mechanisms of the procedures in details, which essentially affect judges and lawyers who will have to practise them daily. We are rather going to take a closer look at some points worth knowing for our foreign colleagues who would like to advise their clients considering proceedings in Switzerland.

2. SOME USEFUL ASPECTS FOR FOREIGN LITIGANTS

2.1 DETERMINING THE JURISDICTION

The jurisdictions are currently set by the forum federal law. This law will be repealed by the coming into force of the CPC. Generally speaking, one should bear in mind that in Switzerland the jurisdiction is within the borders of the Cantons. In some of them, the jurisdictions are all gathered together whereas in some others ordinary courts are located in several places. It both depends on their territorial and population extents. It is central to determine the adequate jurisdiction especially when an urgent matter requires a sequestration, an arrestation or a provisional order. Indeed, referring to a court being incompetent ratione loci may entail a loss of time and, either the inadmissibility or the ineffectiveness of the order claimed.

Basically, one may be sued in the Canton where he is domiciled¹² if it is a natural person and the defendant's place of registration if it is a company¹³. In case of lack of domicile or registered office, the residence and intention of permanent or indefinite residence constitute jurisdictions ratione loci¹⁴.

These main jurisdictions set those for the provisional orders, the counterclaims, the joinders of claims or of parties, the interventions and the impleader¹⁵.

The parties may also agree on the election of a jurisdiction; the tacit agreement of the defendant has the same effect¹⁶.

The text specifically fixes the competences ratione loci for the cases linked with personal law¹⁷, family¹⁸, inheritance and property law¹⁹, contract law²⁰, the vicarious liability²¹, business law²³ and bankruptcy law²⁴.

2.2 EXPENSES, COSTS AND GUARANTEE (CAUTIO JUDICATUM SOLVI)

The law does not determine the court-costs, this task being incumbent upon the Cantons. As a consequence, though kept within the line of precedents of the federal Court, important differences may appear according to the jurisdiction in which one takes legal action. So it is advisable to check with a lawyer which is the most appropriate solution in case several jurisdictions fulfil the legal requirements for instance. Or he may recommend that an agreement with the opposing party on the jurisdiction before starting with the proceedings fits the best. It's worth taking that choice into consideration previously, at the time of the writing of the contract between the commercial partners.

In general, the applicant shall pay in advance the legal charges fixed by the court or his cause will be rejected.

The law provides for that, at the defendant party's request, the claimant has to give guarantee for the payment of some costs²⁵, when it is foreseeable that it would be difficult to get them back subsequently. One possible motive to ask for it is the lack of claimant's official domicile²⁶ in Switzerland. Then it is every time necessary for the foreign litigant to check the existence of an applicable international treaty excluding the obligation to provide that guarantee for the citizens of the countries concerned²⁷.

2.3 LANGUAGE OF THE PROCEDURE

It is well-known that Switzerland has four national languages of which three are official. Lawsuits are normally held in the language of the jurisdiction where they take place. However, with the agreement of the parties and the court, the procedure can also be run in another language²⁸. These provisions will enable to reduce translation and interpretation fees, as much about the finding given by the parties, as about the documentary evidence and the hearing of witnesses stating in another language than the one of the jurisdiction. It is particularly worth it for commercial litigations where the lingua franca is English or for those about family law, which often confront foreigners in Switzerland.

2.4 NOTIFICATION & SERVICE

Apart from the common ways of notification known in other countries, Switzerland maintains the notification by announcement, which makes enforceable a decree despite the fact that the concerned party doesn't receive it. Such is the case when²⁹:

• The recipient's place of abode is unknown and could not have been found in spite of all research reasonably intended for that purpose;
• The service is not possible or shows some extraordinary difficulties;
• The address for service is still out of Switzerland regardless of the order of court.

The judgement is then considered as served the day of the notice.

2.5 EVIDENCE

The subdivision 10 of the CPC has a chapter on the general principles, a second one related to the duty of cooperation of the parties and of the third persons and the last one devoted to the elements of proof.

2.5.1 The running of the disclosure and discovery of evidence

Proof shall only concern disputed and pertinent facts. Allowing for exceptions, facts acknowledged by both parties shall be held to be established. The irrelevant facts, of which the clarification is not likely to carry an influence on the preliminary procedural decision or the final judgement, are not allowed to the discovery.

According to one of the principles of the procedural law, the judge freely appraises the truth of evidence and decides which ones are competent, brushing aside those that are incongruous, unsuitable or intended to extend without justification the duration of the suit. In practice, this decision takes the shape of an order of evidence that states the needed evidence in the actual case, and which party shall submit what evidence.

The burden of proof rests with the parties concerning the existence and the content of commercial, professional or local customs, as well as for the foreign law in patrimonial issues.

2.5.2 Illicit elements of proof

According to the Federal government, the use of elements of proof unlawfully obtained should be very restricted. Nevertheless, the law provides for that they are acceptable if the significance of the revelation of truth is major³⁰. The court should carry out a balance of the current interests, especially when the process is acknowledged as unlawful in Switzerland whereas it is admitted before foreign courts (recording of phone calls for instance). The matter should be resolved individually and respect the line of precedents of the federal Court and of the European Court of Human Rights.

2.5.3 Discovery of evidence by the court

The principle of immediacy commands that all evidence shall be shown before the court³¹. That puts a main obstacle in the use of affidavit as proof if the one who signed the statement of fact doesn't testify in person before the court to confirm his declaration and to answer the questions from the court and from the parties' representatives.

2.5.3 Duty of cooperation

The law lays down the duty of the parties and the third persons to cooperate in the lawsuit. There in particular, the third person could get penalty, or even civil imprisonment. This duty means testifying and informing as well as making data available. To be exempt from it, the third party must have a serious and motivated ground, and all of them are exhaustively detailed in the law.

It is a good opportunity to remind that in Switzerland, only lawyers and clergymen benefit from the complete protection of the professional secrecy. Even when they are released from their duty of confidentiality by their customers or their flock, they have the right to stay quiet and will not get any sanction.

Mediators, ombudsmen and journalists are free from the duty of cooperation due to the nature of their professions and in order to let them work efficiently. Indeed, the possibility that information given to these people, like the identity of the sources or of the authors, may be subsequently used in a suit would make those jobs impossible to do.

State employees and doctors take advantage of the professional secrecy, restricted though, because it can be taken away by the legitimate superior authority or the patient concerned.

The parties should cooperate and though they are not forced to, their refusal will be taken in account by the court when appraising the truth of evidence, naturally without prejudice to their possible justification³².

2.5.4 Elements of proof

The law details the admissible elements of proof, i.e. testimonies; titles; inspections; expert appraisements; data; interrogatories and depositions of the parties. This exhaustive list has only one exception related to the way of getting some evidence during proceedings in family law where the children's interests are at stake.

To come back to the nature and to the convincing strength of data, we fully refer to the Federal Council report³³:

"Data is an evidence of a cross-nature between a deed, an expert appraisement and a testimony. They play an important role in the practice because of their diversity, their rapidity and their efficiency. They are theoretically reserved for the authorities and official services (§1), but it's extraordinarily allowed to make advantageous use of them in place of the formalities-weighted hearing (§ 2) (e.g.: doctor's certificate).

The draft of the law specified that data didn't rule out a later hearing (article 185, paragraph 4 of the draft). It goes without saying."³³

2.5.6 Focus on the testimony

Usually, the court subpoenas the witness in order to get him appearing during a session. With the court's agreement, it is also possible that the parties bring their witnesses to the hearing.

With regard to the appearance of witnesses, the process remains traditional: the court interrogates the witnesses without the presence of the other ones. The questions are only about disputed facts and pertinent for the case according to the court. The parties are allowed to ask additional questions only when the court finished its interrogatory.

The witness shall be able to speak freely, without reading a text that he would have previously written. If an affidavit was produced by one of the parties beforehand, it is not enough to confirm it. The court is going to ask further precise questions to verify if the statement matches the actual experience of the witness or if there are some dissimilarities in his description of the facts.

The law forbids the parties to ask the witnesses directly. The latter and their representatives shall suggest the questions to the bench, which decides whether to allow those or not. It can also rephrase it. All this is supposed to prevent the parties and their lawyers from suggesting some answers to the witnesses.

In our opinion, this procedure is open to criticism because it does not let the truth shine through by the testimony, given that the cross-examinations are forbidden.

To make the matter worse, the law always imposes the writing of a minute to be signed by the witness at the end of his deposition. This record is dictated to the minute writer by the judge and is supposed to sum up" the main points of the testimony". In fact, this summarizes what the judge could understand - significant details such as hesitations, contradictions and repeated rewordings from the witness, suggesting that he doesn't say the truth are not minuted.

In the Swiss lawyer's proceedings practice, fighting is most of the time about what is taken in the minutes or not, against the arguments of the opposing party's representative or against the stand of the judge that does not perceive the witness's statements in the same way than the litigants. Sometimes, the court doesn't speak the same language as the witness. So when in contrast the lawyer understands it, he has to carefully watch for the interpreter to translate accurately what the witness said. He would have to convince the judge, who naturally tends to trust the interpreter, that the declarations were badly or not translated at all.

From these discussions between the lawyers, the interpreters, the court and the witness only the conclusion is taken in the minutes and that makes some crucial points disappear in the debate because no one noted them down while expounded.

There again, at least it is our opinion, the truth might be shortened because of incomplete minutes.

It is more than ever detrimental when the case is reassigned to another judge during the trial. He will have to settle the dispute at law without having seen the witnesses a single time, without having lived through all the parties' discussions. The minutes exclusively worded by his predecessor are the only basis for his judgement.

Whereas, in our opinion, the legislator could have finally taken the opportunity given by the current review to launch a new system significantly cutting risks of incomplete and warped version of events.

That is the reason why we advise our clients not to rely on the testimonies too much and to produce written in evidence as most as possible.

3. MORE ACTIVE ROLE OF THE COURT

According to the federal government, the Swiss review follows on from a European tendency encouraging a fairer application of law by basing the facts accurately in spite of incomplete declarations from the parties. Thus the court has to interview the parties³⁴, to command discovery procedures even without any request from the parties³⁵ and to implement the maxime inquisitoire sociale³⁶ in plain procedure (article 243 CPC). The objectives of these provisions are to ascertain the truth, to make the procedure quicker by letting little scope for the review of facts on appeal, and to put an end to the dispute by a settlement before judgement when possible, or even recorded by the court during the lawsuit.

4. MINOR cases

Financial cases of secondary importance - within an amount of 30'000 Swiss francs - are subject to the plain procedure³⁷. It is the same for all litigations, without any limit regarding the amount in dispute, when the cases concern:

• The Equality Act;
• Serious offences against the person (involving compensations);
• House-letting and farming leases, business premises included, protection against improper rents and notices to quit;
• The right to access to information as regards the Data Protection Act ;
• The profit sharing by firms with workers; and,
• The complementary health insurance.

Claim filing is much simpler and the claimant does not need to give any ground. The judge fixes a hearing for the parties and decides on the necessary measures to investigate the case and to solve the dispute at law with a sole day in court. The most effective mechanism to achieve this goal will certainly be the court's duty of inquiry in order to prove the facts.

5. THE MEDIATION

This new fashion to solve litigations gains in importance in international issues, especially in family, industrial and business relations. In Switzerland, the Canton of Geneva is the only one to have passed a bill about civil mediation. Wherever else in the country, no prescription exists or it remains very elementary.

As a result, a political consensus was not reached on this topic, which is then not the subject of any subdivision of the new act. The federal government actually assumes that this theme does not belong to the procedural law. The act mentions a link to the mediation though, so that it can be an efficient tool to settle some disputes and to relieve the benches consequently. Five articles of the law are devoted to it.

At both parties' request, the mediation may replace the compulsory conciliation that the parties shall undergo before that the judge gets into the case. It can intervene during the sitting too, which will be adjourned therefore, always at the parties' joint request. The mediation takes place independently of the suit and is fully confidential. It will succeed or not, without the intervention of the court in any case.

If an agreement between the parties follows the mediation, they can make it confirm by the judge, turning it this way into an instrument ready for enforcement, and valid as a res judicata for the points it covers.

6. APPEAL

The law sets the appeal, which is the common remedy whereby the judge is enabled to correct errors of facts and law with a full competency³⁸. It also fixes the appeal restricted to the re-examination of the law³⁹. Then it also lays down the review of lawsuit (trial de novo), the construction and the rectification (reformation). All of these are extraordinary remedies. It compels the Cantons to give the petitioners the opportunity to bring the same case before two different and consecutive courts (the first instance and the appeal ones). With these following exceptions though:

• Final decisions from a cantonal court with no possible remedy according to the article 5 CPC;
• Decisions taken by courts specialized in business cases only;
• Decisions taken by an appellant court of the Canton as a first instance. It comes from a special direct action undertaken at the plaintiff's request;
• Decisions pronounced by arbitral courts.

These decisions may be the subject of an appeal before the Federal Court directly; the quick decision-making and the accelerated enforcement being in the interest of the parties that refer a matter to these courts.

The bench has to discourage the use of appeals for the sole purpose of delaying. Hence, after having previously considered the case, it is allowed to dismiss straight away an inadmissible or obviously groundless appeal without any other side's decision.

The further description of the procedures for appealing is beyond the point and the scope of the present report. Roughly, one can say that the regulation corresponds to what the countries implementing the classification of laws apply.

7. EXECUTION

7.1 DEBTS

The actual payment of debts is governed by the Federal Bankruptcy Act⁴⁰ , in case the debtor doesn't pay off.

7.2 OTHER PERFORMANCES

The procedure to get the actual fulfilment of any other kinds of performance – letters of intent, registrations in official registers and publications, publication in the newspapers, injunctions such as demolitions, construction, evictions, recovery of movables in divorce proceedings, etc – applies when the obligor does not meet his engagements of his own free will. The matter is referred to the competent court and the latter decides on the case after a summary procedure. It can command provisional orders if it is foreseeable that the fulfilment might be hindered or made much more difficult by the party that lost the lawsuit earlier.

7.3 AUTHENTIC INSTRUMENTS

The CPC introduces a major new thing – the actual enforcement of acts acknowledged before a notary public does not require any previous suit. This scheme was drawn up to adjust the Swiss legal system to the European one according to the Lugano Convention that both of them signed. It lays down the obligation to enforce this kind of instruments under the same conditions as enforceable judgements.⁴¹ As a result, Swiss authentic instruments will become enforceable in European States in the same way as the European ones are in Switzerland presently. This was not possible until now.

Moreover, this institution will relieve the courts.

Some cases are excluded, when the law grants a particular protection to the weakest party. They concern industrial law, leases and house-letting law and the Consumer Protection Act.

The article 345 CPC sets all the requirements that must be fulfilled so that an authentic instrument is valid and enforceable exactly like a judgement.

Referring to a court is not necessary if the party that is beneficiary decides to carry out the enforcement directly by himself (for instance by requesting the registration of an easement from the official registers). In contrast, the interested party can open proceedings to get the fulfilment of the due performances indicated in the act; the procedure obeys the principles applying to the enforceable judgements, mentioned above.

One should however not underestimate the rights that the debtor has to protect himself. Since the authentic instrument is not a res judicata, the obligor can institute proceedings in order to claim the non-existence of the privity. He can take the legal action provided by the article 85a LP in case of a debt, or by the article 86 CPC for other performances. Finally, an action for money had and received is possible when the fulfilment intervened without any privity in law or agreement.

Footnotes

1 For instance, the investors who got swindled by BMIS (Madoff scandal)

2 The future federal procedural law

3 Article 38 CPC

4 Officially named in French : Loi fédérale du 11 avril 1889 sur la poursuite pour dettes et la faillite (LP), Recueil systématique n° 281.1 (Classified Compilation of Federal Legislation n°281.1)

5 HOFMANN/LUSCHER, Le Code de procédure civile, Stämpfli Editions SA, Berne 2009, p. 3 par. 4

6 Recueil systématique n° 273 (Classified Compilation of Federal Legislation n°273)

7 Message du Conseil fédéral du 28 juin 2006 relatif au code de procédure civile suisse (CPC), FF 2006, p.6863 (Federal Council Report of 28 June 2006 on the Swiss Procedural Law, federal official publication 2006, p.6863)

8 Maxime de disposition (Article 56 CPC) : « Ne procedat judex ex officio et sine actore » ; « Ne eat judex ultra et extra petita partium. » Maxime des débats (Articles 53 and 55 CPC): "Jura novit curia"; "Da mihi factum, dabo tibi ius", Give me the fact(s), I'll give you the law.

9 Maxime inquisitoire sociale: specific "social" inquisitorial model meant to protect the weak party (e.g. Articles 268, 291 CPC).

10 No maxime éventuelle. The parties don't have to bring all the elements at the same time.

11 Article 106 CPC

12 The place where a person exercises his civil rights

13 Article 9 CPC

14 Articles 10 and 11 CPC

15 Articles 12-15 CPC

16 Articles 16 and 17 CPC

17 Privacy Act and personal protection among others

18 Including actions relating to "registered partnerships", contracts for people in long-term relationship (and official common-law marriages recognized by some cantonal registry offices)

19 Concerning real and personal estate

20 Regarding contracts, specific jurisdictions are set for the party considered as the weakest (contracts with consumers, house-letting or farming leases, engagements) in order to make its access to court easier.

21 Without prejudice to the competence of the jurisdiction of the criminal court where the wronged parts can claim damages (article 38 CPC).

22 Relating to the liability of the company's directors and officers; the mergers, demergers and other transfers of assets; the nullification of share certificates, the loans floated by issuance of bonds and the money market fund.

23 Articles 19-43 CPC.

24 Other else than court-costs, like retainer, translator fees, expert appraisement and rogatory commission costs.

25 Cf. footnote n°12

26 For instance article 17 of the Hague Convention of 17^th July 1905 relating to civil procedure

27 Art 127 paragraph 2 CPC

28 Art 139 paragraph 1 CPC

29 Article 150 paragraph 2 CPC

30 Message du Conseil fédéral du 28 juin 2006 relatif au code de procédure civile suisse (CPC) 2006, FF 2006, p.6923 (Federal Council Report of 28 June 2006 on the Swiss Civil Procedure, federal official publication 2006, p.6923)

31 Article 160 CPC

32 Message du Conseil fédéral du 28 juin 2006 relatif au code de procédure civile suisse (CPC) 2006, FF 2006, p.6934 (Federal Council Report of 28 June 2006 on the Swiss Civil Procedure, federal official publication 2006, p.6934)

33 Freely translated

34 Cf. Article 54 CPC

35 Article 223 CPC, §3 in particular: « The Court is allowed to produce proof »

36 Cf. footnote n°9

37 Articles 239-423 CPC

38 Articles 304-315 CPC

39 Articles 316-325 CPC

40 Cf. Footnote n°4

41 Article 50 of the Lugano Convention

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.