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Swiss Safeguards for Civil Claims: A Review

In the wake of recent scandals and controversies surrounding bribery and corruption in Switzerland, it is crucial to examine the safeguards in place to ensure a fair and just process for civil claims. This article will delve into the measures taken by Swiss authorities to safeguard the conduct of investigations, provide legal advice and privilege, and ensure the admissibility of evidence.

Safeguards in Investigations

Swiss law provides for a range of safeguards to ensure that investigations are conducted fairly and without undue influence. The Criminal Procedure Code (CCP) sets out specific provisions governing the conduct of investigations, including:

  • The right to legal counsel
  • The prohibition on coercion and violence
  • The requirement for evidence to be obtained through lawful means

The CCP grants suspects the right to choose their own legal counsel or request a defence attorney if they cannot afford one. In certain cases, such as:

  • Detention periods exceeding ten days
  • The risk of a custodial sentence exceeding one year

the presence of a defence counsel is mandatory.

All communications between accused persons and their defence counsel are privileged, meaning that criminal authorities are prohibited from reading or using such correspondence as evidence without the consent of the concerned party or counsel. If evidence is seized during an investigation, it must be excluded from the file if:

  • It has been obtained through unlawful means
  • No privilege applies

Right to Exclude Unlawfully Obtained Evidence

The CCP distinguishes between two types of unlawfully obtained evidence:

  • Absolute unusable evidence (e.g. obtained through physical violence or coercion), which must be excluded from the file in all circumstances
  • Relatively usable evidence, which may be left on file if there is an overwhelming public interest in exploiting the relevant evidence

Procedural Defence Rights

The CCP codifies various procedural defence rights, including:

  • The right to a fair trial
  • The right to confront witnesses
  • The right to challenge evidence

These rights are designed to ensure that accused persons receive a fair hearing and are protected from arbitrary or unlawful proceedings.

Anti-Corruption Conventions

Switzerland is a signatory to several international anti-corruption conventions, including:

  • The OECD Bribery Convention
  • The Civil Law Convention on Corruption
  • The UN Convention against Corruption

These conventions provide a framework for combating corruption and bribery in international business transactions.

Bribery and Corruption Offences

The Swiss Criminal Code (SCC) defines various bribery and corruption offences, including:

  • Active and passive bribery of foreign public officials
  • Private individuals
  • Employees of state-owned or state-controlled companies

The SCC also provides for corporate criminal liability where a company fails to take all reasonable organisational measures to prevent the commission of bribery and corruption offences.

Conclusion

In conclusion, Switzerland has implemented a range of safeguards to ensure that civil claims are processed fairly and without undue influence. These safeguards include:

  • The right to legal advice and privilege
  • The exclusion of unlawfully obtained evidence
  • Procedural defence rights
  • Adherence to international anti-corruption conventions

As the country continues to grapple with the issue of bribery and corruption, it is crucial that these safeguards remain in place to ensure a fair and just process for all parties involved.