International Parental Child Abduction
Switzerland July 1998 Disclaimer: The information in this circular relating to the legal requirements of specific foreign countries is provided for general information only. Questions involving interpretation of specific foreign laws should be addressed to foreign counsel. The Swiss Central Authority of the Hague Convention on the Civil Aspects of International Child Abduction has informed the Department of State of the following general information concerning the operation of the Convention in Switzerland. Judicial Procedure Upon receipt of a Hague application, the Swiss Central Authority usually tries to get in touch with the abducting parent in order to find out if a mediated solution can be achieved. If this is not the case, or if the applicant requests to commence the judicial procedure immediately in view of obtaining a court order under the Hague Convention, the applicant is sent a list of attorneys from the respective canton who are willing to take Hague cases. The applicant can also let the Central Authority choose the attorney for him/her. It is up to the attorney to commence the judicial procedure, to file the application of legal aid (if applicable) and to take the necessary steps in view of obtaining an enforcement of the final judgment. Switzerland has no unified civil procedure law and no uniform court system, and the designation of the courts, rules of procedure and conditions for appeals vary considerably. A judgment rendered by the court of first instance (often called the District Court) can normally be reviewed by the court of second instance (called Superior Court, Court of Appeals, etc.). Finally, it is possible to file a further appeal with the Federal (Supreme) Court in Lausanne, Switzerland's highest judicial authority. No writ of certiorari must be obtained in order to get access to the Federal Court, but the complaints that can be raised in this stage of the lawsuit are normally limited to the violation of constitutional rights (including a violation of the European Convention on Human Rights). A final decision should usually not be expected in less than six months. Attorneys The applicant can choose an attorney from a list that will be provided by the Swiss Central Attorney, or he/she can let the Central Authority choose the attorney for him/her. There is a large number of attorneys who speak and write English fluently. The attorney must be paid only if the applicant is not entitled to legal aid. The attorney fees are ruled by cantonal law and differ widely. The fee normally can be negotiated between attorney and client, but no contingent fee is allowed. Legal Aid Switzerland has established a system of legal aid that is governed (in accordance with Article 42 of the Hague Convention) by cantonal law, although a minimal standard and guidelines are set by the case law of the Federal Court. Pursuant to this case law, an applicant is entitled to legal aid if he or she is indigent (unable to pay a living for him/herself and his/her family in addition to the legal fees) and if the chances of winning the case are greater than the chances of losing it. Legal aid covers both the court costs (which are considerably higher than those in the U.S.) as well as the attorney's fees. It is up to the attorney to file the request for legal aid with the court or the competent authority before commencing the Hague procedure. There are no application forms available. In general, documents indicating the monthly or annual income and expenses as well as assets and debts are required. The quicker these documents are conveyed to the attorney, the quicker a preliminary decision regarding legal aid can be obtained. Rights of Access The Swiss Central Authority tries to help parents exercise their rights of access pursuant to Article 21 of the Hague Convention. This obligation normally is fulfilled through intermediaries, mostly local guardianship authorities or juvenile services. This includes proceedings in view of negotiating mediated solutions and organizing locations and supervision in order to permit the meeting of a child with the parent. The Central Authority furthermore helps to find an attorney if no mediated solution can be found and a court must resolve the dispute. If the child's habitual residence is in Switzerland, the conditions and requirements of such a decision are set forth by Swiss law. If the conditions of rights of access have already been determined in a decision rendered by a U.S. court in the habitual residence of the child, then the Swiss court organizes the protection of the rights of access pursuant to Article 21 of the Hague Convention. Article 28 Authorization No authorization as foreseen in Article 28 is required when the Hague application is filed with the Swiss Central Authority. A power of attorney must normally be completed, signed and sent to the attorney when the judicial procedure commences. Translation of Documents The Swiss Central Authority accepts all documents in English. Translation into German, French or Italian, as the language of the court might be, will be required if the document must be presented to a court, but the translation need not be sent with the Hague application. | 
