Asset tracing and recovery: civil and criminal routes

The information problem

The creditor who wins a judgment against an Italian debtor rarely knows where the debtor's assets are. In Italy, the creditor with an enforceable title can have the bailiff carry out an electronic search of the tax register and of its archive of financial relationships, which reveals the debtor's Italian bank accounts.¹ In Switzerland, no comparable register exists. Banking secrecy under Article 47 of the Banking Act protects client data against disclosure to private parties, and Swiss civil procedure has no general pre-trial discovery. The creditor's main civil instruments are the attachment, with the bank's duty to disclose arising only after the objection period, and the debtor's duty to disclose his assets in the seizure and bankruptcy proceedings under the DEBA, which is backed by criminal sanctions.² Article 158 CPC also allows the precautionary taking of evidence before proceedings if the applicant makes credible that the evidence is at risk or that he has a legitimate interest, for example in assessing the prospects of a claim. Because the applicant must make credible a specific interest in the evidence sought, the provision does not open a general route to discovery against banks.³

Heirs and other persons who are themselves entitled to information under the law of contract are in a stronger position. An heir of an Italian client of a Lugano bank succeeds to the client's right to information under the mandate (Article 400 of the Code of Obligations). The bank must therefore give the heir account statements and documents, since banking secrecy does not apply against the holder of the secret and his successors, unless the information concerns highly personal rights of the deceased.⁴ Chapter E.V discussed this situation in its succession context. In disputes between Italian heirs, it is often the quickest route to establishing the existence and history of Swiss accounts.

The criminal route in Switzerland

Where the debtor's conduct amounts to a criminal offence, such as fraud, criminal mismanagement, misappropriation, fraudulent bankruptcy or money laundering, the victim can file a criminal complaint in Switzerland and join the proceedings as a private claimant (accusatore privato) under Articles 118 ff. of the Swiss Criminal Procedure Code (CrimPC).⁵ The Ticino Public Prosecutor's Office, or the Office of the Attorney General where federal jurisdiction applies, can then seize assets (Article 263 CrimPC), order banks to produce documents and question witnesses. The private claimant has access to the file and can use the documents obtained, within the limits of the protection of secrets, in his civil claim. At the end of the proceedings, the court can confiscate the proceeds of crime (Articles 70 to 72 SCC) or return them to the injured party. It can also allocate confiscated assets to the injured party up to the amount of his damage (Article 73 SCC).

The criminal route is therefore attractive for Italian victims of fraud whose money was transferred to Lugano. It is also open to abuse, because a complaint can serve to obtain bank documents that civil procedure would not provide. Swiss prosecutors and courts are aware of this, and they restrict the private claimant's access to documents that concern third parties or are not needed for the claimant's participation. The complainant also bears a risk of costs and, in the case of a knowingly false complaint, of criminal liability. Chapter G.III described the Ticino Public Prosecutor's Office and its workload, which affects how quickly such complaints are dealt with.

Notes

1. Art. 492-bis c.p.c. (above). ↩
2. Federal Act on Banks and Savings Banks of 8 November 1934 (Banking Act, BankA), SR 952.0, Art. 47(1), at droit-bilingue.ch, https://www.droit-bilingue.ch/de-it/9/95/952.0-47-100.html; DEBA, Art. 91(1)(2) and (4) and 222(1), with the penalty references to SCC, Art. 163(1), 323 and 324, at droit-bilingue.ch, https://www.droit-bilingue.ch/de-it/2/28/281.1-91-110.html and https://www.droit-bilingue.ch/de-it/2/28/281.1-222-251.html. ↩
3. CPC, Art. 158(1)(b), Fedlex (above). ↩
4. Swiss Code of Obligations, SR 220, Art. 400; Federal Supreme Court, BGE 133 III 664 of 10 September 2007, https://servat.unibe.ch/dfr/bge/c3133664.html. ↩
5. Swiss Criminal Procedure Code of 5 October 2007 (CrimPC), SR 312.0, Art. 118(1) and 263(1), at droit-bilingue.ch, https://www.droit-bilingue.ch/de-it/3/31/312.0-118-122.html and https://www.droit-bilingue.ch/de-it/3/31/312.0-263-267.html; SCC, Art. 70(1) and 73(1), at droit-bilingue.ch, https://www.droit-bilingue.ch/de-it/3/31/311.0-70-95.html and https://www.droit-bilingue.ch/de-it/3/31/311.0-73-98.html. ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of October 2026.