Litigation - Switzerland

Background

Can a criminal court entertain a civil action, as a so-called 'adjoining procedure', arising from the same facts? The Federal Supreme Court recently adopted a creative solution to this question in an international case.

The Private International Law Act 1987 regulates in an international context, among other things, the jurisdiction of Swiss courts in civil matters. Articles 129(1) and (2) of the act provide that the Swiss courts at the domicile or normal residence of the defendant (forum domicilii) or, failing that, the Swiss court where the event occurred (forum delicti), have jurisdiction over tort litigation:

"1The Swiss courts at the defendant's domicile or, in the absence of such domicile, the courts at his ordinary residence or at the place of his business establishment, shall have jurisdiction over actions based upon tort.

2If neither the domicile nor the normal residence nor a business establishment of the defendant is located in Switzerland, the action may be brought before the Swiss court at the place where the act was committed or had its effects."

The act does not provide for the additional jurisdiction of a court which has criminal jurisdiction over the same matter. Conversely, the Lugano Convention 1988 contains the following provision relating to jurisdiction in Article 5(4):

"A person domiciled in a contracting state may, in another contracting state, be sued... (4) as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seized of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings."

Thus, in a Lugano context, a criminal court may entertain a related civil action if the local law confers jurisdiction, even if the criminal proceedings are not held at the place of the crime and thus not at the forum delicti.

This update focuses on a recent decision rendered by the Criminal Division of the Federal Supreme Court (the Federal Criminal Court) construing the above-mentioned Article 129 of the Private International Law Act from the perspective of Swiss criminal jurisdiction.(1)

Facts

A district criminal court in St Gallen Canton sentenced a foreign defendant, domiciled in Lithuania, to five years' imprisonment for certain fraudulent activities perpetrated in Switzerland and awarded damages to the victims, who were also mostly foreign. The defendant appealed the judgment, first to the St Gallen Criminal Court and then, by means of two parallel appeals, to the Federal Criminal Court. One of the issues under appeal was the jurisdiction claimed by the district court in respect of adjoining civil claims. The crimes for which the defendant was sentenced and which were the basis of the civil actions were committed in Switzerland, but not in the district of the district court. Thus, the district court did not have civil jurisdiction as the forum delicti.

Decision

The district court had accepted jurisdiction over civil actions pursuant to Article 28 of the Federal Act on Jurisdiction(2) on the one hand and the St Gallen Code of Criminal Procedure on the other. These provisions together provide the Swiss court before which the criminal proceedings are pending with jurisdiction to entertain civil proceedings under certain circumstances.

The Federal Act on Jurisdiction regulates the jurisdiction of Swiss courts in domestic civil matters and is thus not applicable in a case against a foreigner. Conversely, the Lugano Convention does not apply to a defendant domiciled in a non-contracting state, such as Lithuania, in the present circumstances. Hence, the Federal Criminal Court noted that the Private International Law Act, particularly Article 129, was applicable to this case.

The defendant was not domiciled in Switzerland, and did not have his place of habitual residence in Switzerland. The Federal Criminal Court observed that the place of action and place of effect were both in Switzerland, but were not within the territory for which the district court held jurisdiction. Thus, the Federal Criminal Court held that the district court had apparently no (civil) jurisdiction according to Article 129.

This then raised the question as to whether the lack of an express provision governing adjoining procedures in the Private International Law Act had to be interpreted as qualified silence intended to exclude the adjoined pursuit of civil claims before the criminal court.

The Federal Criminal Court noted the traditional notion in Swiss law, including constitutional law, that a criminal court may have ancillary civil jurisdiction over a defendant even if such a criminal defendant is not domiciled within the district of the court, while an 'upright citizen' traditionally must be sued at his or her domicile.

The Federal Criminal Court held that this traditional distinction between standalone civil claims - where, in principle, the guarantee of the forum domicilii of the defendant applies - on the one hand, and adjoining claims - where the criminal court should have ancillary civil jurisdiction for efficiency purposes - on the other, was not meant to be changed in an international context. Thus, the lack of any reference to adjoining procedures in the Private International Law Act is not to be understood to mean that the legislator intentionally deviated from the domestic tradition or be treated as a purposeful omission.

Consequently, the Federal Criminal Court noted that - as the St Gallen Code of Criminal Procedure expressly provided the district court with jurisdiction to entertain ancillary civil proceedings - nothing prevented the district court from having jurisdiction over the civil actions both in a national and in an international context.

Comment

It is not often that Swiss case law creates new forums for international civil claims. This is quite unheard of, due to the fact that the courts are bound by the statutory law and are reluctant to fill perceived gaps in a statute. In this case it is not one of the civil chambers of the Supreme Court that created a new forum for civil claims, but rather the criminal chamber.

From an international perspective, foreign parties may note that, as a consequence of this new and creative case law, Swiss criminal courts may rule on civil claims arising from a potential criminal offence even if such courts would not have jurisdiction for a standalone civil claim. It suffices if domestic federal or cantonal law provides for such ancillary jurisdiction of the criminal courts.

On the federal law level, Switzerland has enacted special legislation which provides victims of certain criminal offences with the right to bring civil actions before a criminal court with jurisdiction (in Article 8 of the Federal Act on Assistance to Victims of Criminal Offences). Pursuant to Article 2 of this act, anyone whose corporeal, sexual or psychological integrity is violated shall benefit from such jurisdiction. Moreover, on the cantonal level, most of the disparate 26 cantonal codes of criminal procedure provide for the possibility of a criminal court to rule on civil actions based on criminal offences.

Thus, the defendant to a civil adjoining procedure may be subject to Swiss jurisdiction at the place of criminal proceedings even where there is a choice of forum agreement. This facilitates the pursuit of civil claims against criminals in the Swiss courts.

International Law Office