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Can assets in Switzerland be frozen before a judgment has been obtained?

In short

Yes. The attachment provided for by the Debt Enforcement Act allows a creditor to have assets located in Switzerland frozen without prior notice to the debtor. The creditor need only show, on a prima facie basis, the claim, a statutory ground for attachment and the existence of the assets concerned.

The requirements

The claim must be due and not secured by a pledge. It must also fall within one of the grounds listed in Article 271(1) of the Debt Enforcement Act (DEBA). In practice, the most frequent are a debtor who does not reside in Switzerland, where the claim has a sufficient connection with Switzerland or is based on an acknowledgement of debt, and a creditor who already holds a definitive enforcement title, such as an enforceable foreign judgment.

The creditor must identify the assets with sufficient precision. Requests targeting “all assets held at all banks in Geneva” are rejected: concrete evidence linking the assets to the debtor is required.

A two-stage procedure

The court rules on the application without hearing the debtor. The element of surprise is the main benefit of the measure. The debtor may then object within ten days of learning of the attachment, and the court may require the creditor to provide security for any damage the measure might cause.

An attachment is purely protective. The creditor must validate it within the statutory time limits, by debt enforcement proceedings or an action on the merits, failing which the measure lapses.

Intercantonal jurisdiction

Where the debtor’s assets are located in several cantons, the court of one of those cantons may also order the attachment in the other cantons.

In an international matter

Where the decision on the merits is rendered abroad, the attachment is combined with recognition and enforcement proceedings under the Lugano Convention or the Swiss Private International Law Act. Preparing both in parallel prevents the assets from leaving Switzerland in the meantime.

This note is for general information only. It does not constitute legal advice and is no substitute for the review of a specific situation.

Legal questions

  1. Asset Recovery and EnforcementHow can a foreign judgment be enforced in Switzerland?The judgment must first be recognised and declared enforceable in Switzerland. For a decision rendered in a State bound by the Lugano Convention, review is limited and the procedure swift; for other States, the Swiss Private International Law Act applies and its requirements are stricter.
  2. General and White-Collar Criminal LawCan a company be criminally convicted in Switzerland?Yes. Article 102 of the Swiss Criminal Code allows the company itself to be fined up to five million francs. For bribery, money laundering and terrorist financing, it is liable independently of any individual if its organisation failed to prevent the offence.
  3. General and White-Collar Criminal LawMutual legal assistance: what can an account holder do when bank records are about to be sent abroad?The account holder may take part in the proceedings, inspect the file and appeal against the closing decision to the Federal Criminal Court within thirty days. Alternatively, the holder may consent to simplified execution, which ends the proceedings.
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