No "Real Risk Of Prosecution" Under Article 271 Of The Swiss Criminal Code: Application To Be Excused From Disclosure Obligations Fails

• Jurisdiction: United States,Federal
• Law Firm: Forsters
• Subject Matter: Criminal Law, Compliance, Crime
• Author: Benedict Walton and Edward Richards
• Published date: 25 July 2023

It is well established that the English Court has discretion to excuse a party from performance of its procedural obligations in litigation where it considers that performing those obligations would give rise to an actual risk of prosecution in a foreign state: Bank Mellat v HM Treasury [2019] EWCA Civ 449.

In Public Institution for Social Security v Al Wazzan & Ors [2023] EWHC 1065, the defendants sought to be excused from their obligation to give disclosure on the basis that doing so would lead to a real risk of prosecution in Switzerland under Article 271 of the Swiss Criminal Code¹. The Court was not persuaded by the defendants' arguments and refused to grant the order sought.

The decision provides welcome guidance in a previously uncertain area, as well as a salutary warning to parties seeking to rely on Article 271 to excuse themselves from their disclosure obligations in English Court proceedings.

Article 271

Article 271 prohibits the performance on Swiss soil of "official" acts i.e. those which are properly the preserve of the state. The article was originally introduced during WWII in response to a German gestapo officer's kidnapping of a Swiss Jewish citizen.

It is well established under Swiss law that Article 271 is engaged by examination of witnesses or the service of proceedings for the purposes of foreign litigation. It is less certain, however, whether Article 271 applies to the collection and/or review of documents for the purpose of satisfying a foreign Court's disclosure order. This was the issue considered by the Court in Al Wazzan.

The decision in Al Wazzan

The applicants were the defendants to a claim brought by the Kuwaiti government regarding an alleged fraud committed against Kuwait's social security system and state pension scheme. They sought to avoid giving disclosure of documents obtained from the Swiss criminal authorities and other documents originally obtained from Switzerland on the basis that doing so would give rise to a real risk of prosecution in Switzerland.

However, the Court was not persuaded that Article 271 was engaged by the giving of disclosure, having essentially accepted the respondents'/claimants' Swiss law expert's evidence on the point:

• First, the Court was not persuaded that Article 271 was capable in principle of applying to compliance with a disclosure order; in Swiss litigation the submission of documents (unlike, for example the examination of witnesses) is not restricted to the Court and it is not...