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EmailSwitzerland Judicial Assistance
DISCLAIMER: THE INFORMATION IN THIS CIRCULAR RELATING TO THE LEGAL REQUIREMENTS OF SPECIFIC FOREIGN COUNTRIES IS PROVIDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE TOTALLY ACCURATE IN A PARTICULAR CASE. QUESTIONS INVOLVING INTERPRETATION OF SPECIFIC FOREIGN LAWS SHOULD BE ADDRESSED TO FOREIGN COUNSEL.
PROVISO: This flyer seeks only to provide information; it is not an opinion on any aspect of U.S., foreign, or international law. The U.S. Department of State does not intend by the contents of this flyer to take a position on any aspect of any pending litigation.
· TREATIES IN FORCE
· SERVICE OF PROCESS
· VOLUNTARY DEPOSITIONS OF WILLING WITNESSES
· COURT REPORTERS, STENOGRAPHERS, INTERPRETERS
· COMPULSION OF EVIDENCE
· LIST OF ATTORNEYS
OBTAINING EVIDENCE
Q. HOW DO I OBTAIN EVIDENCE IN SWITZERLAND?
A. 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.)
The documents establishing the execution of the Letter of Request will be returned by the same means that the original request
was sent.
Pre-trial Discovery: 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:
a. the request has no direct and necessary link with the proceedings in question; or
b. a person is required to indicate what documents relating to the case are or were in his/her possession or keeping or at his/her disposal; or
c. 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
d. interests worthy of protection of the concerned persons are endangered.
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
U.S. Citizens: Pursuant to the Convention and under Swiss law, American consular officers may take voluntary depositions of U.S. citizens at the U.S. Embassy in Bern, the U.S. Consulate General in Zurich, or at the U.S. Consular Agency in Geneva. No advance permission from the Swiss authorities is required.
American consular officials can also notarize sworn statements of U.S. citizens for use in U.S. courts.
Taking of Evidence by an Appointed Commissioner: A commissioner may take voluntary evidence if prior Swiss government approval is obtained (see above).
TREATIES IN FORCE
Q. WHAT TREATIES ARE IN FORCE BETWEEN THE UNITED STATES AND SWITZERLAND REGARDING INTERNATIONAL JUDICIAL ASSISTANCE?
A. The United States and Switzerland are parties to the following treaties which include judicial assistance related activities:
2) Vienna Convention on Consular Relations
SERVICE OF PROCESS
Q. HOW CAN I ARRANGE TO HAVE SERVICE OF PROCESS EFFECTED IN SWITZERLAND?
A. The text of the Hague Convention on Service, which is largely self-explanatory, is published in the Law Digest Volume of
the Martindale-Hubbell Law Directory under the heading, "Selected International Conventions." The Hague Service Convention
provides a convenient method of obtaining service by a foreign judicial authority. The party seeking service or the party''s
attorney should obtain two copies of the Request for Service form (USM-94) from any U.S. Marshal''s office. The form is also
reprinted as an annex to the Convention in Martindale-Hubbell. Service is requested by sending the completed forms with the
documents to be served and any appropriate translations, in duplicate, directly to a foreign central authority. In their accession
to the treaty, the Swiss noted that service by mail directly to the parties involved is not permitted.
Methods of Service
Article 8 - Service by Diplomatic or Consular Channels
Switzerland has declared that it objects to service by consular or diplomatic channels on its territory (Articles 8). Furthermore, officers of the Foreign Service of the United States are prohibited by Federal regulation (22 CFR 92.85) from serving process on behalf of private litigants or appointing others to do so, any state law to the contrary notwithstanding.
Time Frame
The U.S. Embassy at Bern advises that the length of time required to effect service by the Government of Switzerland varies by case and canton, but will generally go fairly quickly. Because fewer bureaucratic steps are involved, service and taking of evidence under the Hague Conventions will likely be faster that the three months or longer required when using the letters rogatory method.
Status Reports and Proof of Service
The appropriate points of contact for status reports are the relevant cantonal central authorities. Proof of service will be forwarded directly to the applicant. For information on serving process by Letters Rogatory in Switzerland, please refer to the Judicial Assistance flyer on this topic.
Q. WHO ARE THE SWISS CENTRAL AUTHORITIES FOR THE CONVENTION?
A. The names and addresses of the Central Authorities in each canton of Switzerland can be found at the end of this document.
Q. IS THERE A FEE CHARGED BY SWISS AUTHORITIES IN CONNECTION WITH REQUESTS FOR SERVICE OF PROCESS?
A. Swiss authorities have not advised the Hague Conference on Private International Law of any required fee. However, if personal service is made by a judicial officer and/or the person to be served resides in
some remote location, or if the requesting state asked for a particular form of service, some fees may be charged. The fees
will be billed to the requester.
Q. HOW DO I APPLY TO THE SWISS CENTRAL AUTHORITIES TO EFFECT SERVICE OF THE DOCUMENTS?
A. A request for service by the Central Authority can be made by submitting the documents to be served under cover of form USM-94, in duplicate, to the foreign central authority. "Duplicate" means a complete USM-94; one original English version of the documents to be served (summons must bear seal of the court); one translation of all documents to be served; plus a photocopy of all of the above which constitutes the second set of documents). The Convention form (USM-94) does not need to be translated. The Convention form (USM-94) is available at the office of any United States Marshal and is reprinted in the Martindale Hubbell Law Directory , Law Digest Volume, Selected International Conventions, after the text of the Hague Service Convention.
Q. DOES THE REQUEST TO THE SWISS CENTRAL AUTHORITIES HAVE TO BE TRANSLATED?
A. The Convention request form USM-94 does not need to be translated. The documents to be served must be translated into the
appropriate local language, e.g. German, French or Italian, depending on the part of Switzerland in which the document is
to be served.
(See Swiss Central Authorities list).
Q. HOW CAN I LEARN MORE ABOUT THE OPERATION OF THE HAGUE SERVICE CONVENTION? WHO IS THE U.S. CENTRAL AUTHORITY?
A. HAGUE CONVENTION INFORMATION
FOR BOTH SERVICE AND EVIDENCE ABROAD
Swiss Central Authorities
Switzerland has designated a Central Authority for each canton (see "Taking of Evidence Abroad", above, and "List of Swiss
Central Authorities", below). Documents to be served or Letters of Request, including all supporting documentation, should
be in the official language of the canton where they are to be served or accompanied by translations into that language (e.g.,
French in Geneva, German in Basel, Italian in Ticino, etc.).
Requests of service of documents or evidence under the Hague Conventions may also be addressed to the Federal Justice and
Police Department, Federal Office for Police Matters, International Judicial and Extrajudicial Assistance, Bundesrain 20,
3003 Bern, Switzerland, Tel. 011-41-31-322-4310, Fax 011-41-31-322-5380. That office will forward the requests for service
to the Central Authority in the appropriate canton.
The completed request form and documents to be served, with accompanying translation (2 copies of each), should be mailed directly to the foreign Central Authority as provided by Article 3 of the Convention. In their accession to the convention, the Swiss specified that in cases where the addressee does not voluntarily accept service of a document it cannot officially be served on him/her unless it is in the language of the authority addressed. Technically, therefore, English language documents can be served, but only if the person being served chooses to accept them. To avoid difficulties, one may wish to provide a translation.
U.S. CENTRAL AUTHORITY
If you have any additional questions please address them to the U.S. Central Authority for the Convention:
Office of International Judicial Assistance
Civil Division
Department of Justice
Washington, D.C. 20530
(202) 307-0983
This office is also known as the Office of Foreign Litigation.
CRIMINAL MATTERS
To obtain evidence or serve process 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 (signed at Bern, May 25, 1973; entered into force January 23, 1977; 27 UST 2019; TIAS 8302). Contact the U.S. Department of Justice, Criminal Division, Office of International Affairs, Washington, D.C. for further information.
LISTS OF FOREIGN ATTORNEYS
Lists of foreign attorneys willing to represent U.S. citizens have been prepared by the U.S. Embassy in Bern and Consulate General in Zurich. Copies may be obtained from the Department of State, Office of American Citizens Services.
ADDITIONAL INFORMATION
For further information, please contact the U.S. Central Authority noted above. If you have further questions, contact the Europe and Canada Division of The Office of American Citizens Services, Room 4817 N.S., Department of State, Washington, D.C. 20520, tel: 202-647-5226.
Q. CAN I EFFECT SERVICE BY MAIL?
A. No, service by mail is prohibited. When Switzerland became a party to the Hague Service Convention it made a specific reservation
to Article 10, objecting to service via postal channels. American courts have held that formal objections to service by mail
made by countries party to a multilateral treaty or convention on service of process at the time of accession or subsequently
in accordance with the treaty are honored as a treaty obligation, and litigants should refrain from using such a method of
service. If service of process by registered mail is effected in a country like Switzerland enforcement of a U.S. judgment
in that or a third country may be difficult.
VOLUNTARY DEPOSITIONS OF WILLING WITNESSES
Q. IS IT POSSIBLE TO TAKE THE VOLUNTARY DEPOSITION OF A WILLING WITNESS IN SWITZERLAND?
A. Yes, Pursuant to the Convention and under Swiss law, American consular officers may take voluntary depositions of U.S. citizens at the U.S. Embassy in Bern. No advance permission from the Swiss authorities is required.
Q. WHAT IS THE PROCEDURE IF THE WILLING WITNESS IS NOT A U.S. CITIZEN?
A. Prior Swiss permission is required before consular officers can take voluntary depositions from non-U.S. citizens. 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.
The U.S. Embassy does not have trained legal stenographers, typists or interpreters available. The party requiring the deposition
may want to provide their own.
Q. DO THE REQUIREMENTS VARY IN CIVIL AND CRIMINAL MATTERS?
A. The Hague Evidence Convention does not apply to criminal cases. Obtaining evidence in criminal cases must be handled by
a Swiss court pursuant to written questions submitted under cover of a letter rogatory.
Q. DO THE REQUIREMENTS VARY DEPENDING ON THE NATIONALITY OF THE WITNESS?
A. Based on consultations between the U.S. Embassy and Swiss authorities, it is our understanding that voluntary depositions
of willing witnesses may be conducted in Switzerland regardless of the nationality of the witness, provided the witness has
a legal residence in Switzerland.
Q. DOES SWITZERLAND PERMIT THE TAKING OF TELEPHONE OR TELECONFERENCE DEPOSITIONS?
A. Based on consultations between the U.S. Embassy and Swiss authorities, it is our understanding that telephone and teleconference
depositions of willing witnesses are not permitted in Switzerland, U.S. federal or state law notwithstanding.
Q. CAN A U.S. CONSULAR OFFICER AT THE U.S. EMBASSY IN BERN OR ONE OF THE CONSULATES AGENCIES ASSIST ME IN MAKING ARRANGEMENTS
FOR THE TAKING OF A VOLUNTARY DEPOSITION?
A. The attorney arranging the deposition(s) should contact the consular section of the Embassy as soon as possible prior to
the proposed deposition date to discuss procedures, scheduling, and payment of fees.
A minimum of three weeks prior to the agreed-upon deposition date, the attorney must provide to the Consular Section either:
(1) a copy of his/her notice to opposing counsel of anticipated taking of testimony; or (2) a copy of the court order commissioning
the consular officer to take testimony. The notice or order should include the following:
(a) Case name and docket number
(b) Court where case is pending
(c) Name/citizenship/address/telephone number of witness(es)
(d) Date and place of depositions
· The American Embassy in Bern will notify the Swiss Ministry of Justice which, in turn, will inform the appropriate Land
(state) government.
· It is the responsibility of the attorney arranging the depositions to engage a court reporter and, if necessary, a translator
or interpreter. Please provide the Embassy with the names, addresses, and telephone numbers of the court reporter and translator/interpreter
in advance of the deposition(s).
Private litigants must make their own arrangements to retain stenographers, interpreters, and contact the willing witnesses
directly to arrange a mutually convenient time and date for the taking of the voluntary deposition.
COURT REPORTERS, STENOGRAPHERS AND INTERPRETERS
Q. HOW CAN I RETAIN THE SERVICES OF A COURT REPORTER, STENOGRAPHER OR INTERPRETER IN SWITZERLAND IN CONNECTION WITH A DEPOSITION?
A. The U.S. Embassy advises that commercial stenographer services are not available in Switzerland for the purpose of transcribing
the testimony of witnesses in a voluntary deposition. Interpreter/translator services are available in Switzerland. American
attorneys may prefer to bring a stenographer from the United States to work in conjunction with a locally hired interpreter/translator.
Q. ARE THERE ANY SPECIAL REQUIREMENTS CONCERNING BRINGING AUDIO OR VIDEO EQUIPMENT TO SWITZERLAND FOR THE PURPOSES OF RECORDING
A DEPOSITION?
A. If the depositions are recorded by audio or video tape, transcribed in the foreign language and then translated into English
it is important that you make appropriate inquiries about local requirements in the foreign country. If such equipment is
to be brought into Switzerland, contact the Swiss Embassy in Washington, DC or one of its consulates, whose addresses and
telephone numbers can be found at /travel/tips/embassies/embassies_1214.html. See also the index of all foreign embassies in Washington .
LISTS OF INTERPRETERS/TRANSLATORS
Disclaimer: Neither the Department of State nor the American Embassy assumes any responsibility for the competence or caliber of the
services provided by commercial interpreters or stenographers in Switzerland.
INTERPRETERS/TRANSLATORS: A list of interpreters and translators can be obtained for the consular district in which the deposition is to be held from the Embassy or pertinent Consulate General.
COMPULSION OF EVIDENCE
Q. IS IT POSSIBLE TO COMPEL TESTIMONY AND OTHER EVIDENCE FROM AN UNWILLING WITNESS IN SWITZERLAND?
A. Compulsion of testimony of an unwilling witness and other evidence may be attempted in Switzerland pursuant to a letter
rogatory. Article 5(j) of the Vienna Convention on Consular Relations done at Vienna April 24, 1963 to which the United States and Switzerland are parties provides for transmittal of letters
rogatory. Letters rogatory generally are transmitted through the diplomatic channel. Consequently such requests should be
sent to the Office of American Citizens Services and Crisis Management, Europe Division, CA/OCS/ACS/EUR, U.S. Department of
State, Room 4811, 2201 C Street, N.W., Washington, D.C. 20520, 202-647-6714 or 202-647-5375. The Department of State, Office
of American Citizens Services will forward the request to the U.S. Embassy in accordance with 28 U.S.C. 1781 . The Embassy will transmit the request to the Swiss Foreign Ministry. The Foreign Ministry will transmit the request to
the Ministry of Justice. The letter rogatory is executed by a Swiss court. It may be possible, subject to the ruling of the
presiding Swiss judge, for foreign (American) counsel to participate in proceedings before the Swiss court. For further information
about the letters rogatory process including U.S. consular fees, see our detailed guidance in the U.S. Department of State,
Bureau of Consular Affairs circular, Preparation of Letters Rogatory . See also Volume 7, Chapter 900 of the U.S. Department of State Foreign Affairs Manual .
LISTS OF ATTORNEYS IN SWITZERLAND
Q. HOW DO I OBTAIN A LIST OF SWISS ATTORNEYS?
A. The U.S. Embassy and each Consular Agency prepares a list of English-speaking attorneys for the consular district of their
responsibility. These lists may be obtained by writing or by calling the U.S. Embassy in Bern. Contact information is available
at the web site of the U.S. Embassy at http://www.us-embassy.ch/
LIST OF SWISS CENTRAL AUTHORITIES UNDER
THE HAGUE CONVENTIONS ON SERVICE AND EVIDENCE ABROAD
In accordance with Article 21, first paragraph (a) of the Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters, and in accordance with Article 35, first paragraph of the Hague Convention on the
Taking of Evidence Abroad in Civil or Commercial Matters, Switzerland designates the cantonal authorities listed below as
Central Authorities as referred to in the respective conventions. Requests for the service of documents, the taking of evidence
or the execution of any other judicial act may also be addressed to:
The Federal Justice and Police Department
Federal Office for Police Matters
International Judicial and Extrajudicial Assistance
Bundesrain 20
3003 Bern
Switzerland
Tel. 011-41-31-322-4310
Fax 011-41-31-322-5380
That office will forward the requests for service to the Central Authority in the appropriate canton. One may also send one''s request for service or evidence under the Hague directly to the Central Authority for the appropriate Canton.
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