Marco normativo y el contexto Veracruzano

This subchapter deals with the configuration where a trial court orders a foreign litigant or third party to produce documents or movable property that are under the foreign witness’ control.¹⁸⁵ The litigant or third party does not appear in person before the trial court in order to present the evidence, but merely transmits it to the trial court by postal mail, courier, or other similar means.¹⁸⁶

Compared to a production of documents through channels of international judicial assistance, the submission without the involvement of any foreign authority has, from the perspective of the trial court, two advantages, namely the saving of time and the application of its own rules

181 Cf. para. V.C.2. See furthermore also fn. 104 above.

182 VPB 40 (1976) no. 49, decision of the Directorate of International Law of the Swiss Federal Department of Foreign Affairs. In this context, it has to be noted that the opinion of the Directorate of International Law is merely the view of the executive and is thus not binding on any judicial authority. Cf. also Trechsel S and Vest H ʻArt. 271ʼ in Trechsel S and Pieth M (eds) Schweizerisches Strafgesetzbuch Praxiskommentar 2013 8 1161 n. 3.

183 See para. V.E.2.

184 Cf. Chapter 2 para. IV.B.4.a).

185 As has been explained earlier, cross-border taking of evidence only occurs if the person controlling the docu-ment or movable property is located in a state other than that of the trial court. See in this regard Chapter 2 pa-ra. II.

186 With respect to the so-called “subpoena duces tecum” see Chapter 5 fn. 231. For the sake of simplicity, the following comments focus on the production of documents being the most common configuration in practice.

The remarks, however, apply equally to movable property.

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on the production of evidence. The disadvantage of such a procedure without the assistance of the relevant foreign state is, however, the limited use of coercive measures by the trial court.¹⁸⁷ It has been explained above, that the fact, that a foreign witness is questioned through channels of international judicial assistance, may influence the content of the witness’ testimony.¹⁸⁸ Where, however, the trial court obtains documents controlled by a foreign witness, be it with or without the involvement of the foreign state, the result is the same, as the fact that a foreign state is involved in the procurement of the said evidence does not have any influence on its content.

2. Court Order to Produce Evidence as a Transfer of Foreign Evidence?

Where a trial court orders a witness located in a foreign state to produce documents, the wit-ness collects the relevant evidence and forwards it to the trial court. The question therefore arises as to whether such evidence-taking is to be qualified as a judicial act performed on for-eign territory or as a transfer of forfor-eign evidence.¹⁸⁹

In the context of the so-called “Justizkonflikt” between the United States and several civil-law countries regarding the mandatory character of the Hague Evidence Convention,¹⁹⁰ the German government maintained that the request of a trial court located abroad to produce documents located in Germany is to be regarded as a judicial act and, as such, interferes with German sov-ereignty. It emphasised that the said court seizes evidence that is subject to foreign sovereignty and that the collection of the documents on foreign soil is the crucial act.¹⁹¹

In contrast, Daoudi considers the respective request as a transfer of foreign evidence which does not violate foreign sovereignty. He maintains that the decisive act is not performed on foreign territory, as it is not the collection of the documents that is crucial, but the hearing of evidence which only begins once the trial court reviews the evidence. According to Daoudi, the gathering of documents by the litigant merely constitutes a preparatory measure which is a

187 Cf. in this regard para. IV.C.6 above. For more on the advantages and disadvantages of a transfer of evidence, see also para. III.A.

188 Cf. para. V.E.1.

189 The following remarks focus on the relevant debate in Germany. See also fn. 35 above.

190 For more on the “Justizkonflikt”, see Chapter 4 para. II.B.2 below.

191 Daoudi J Extraterritoriale Beweisbeschaffung im deutschen Zivilprozeß: Möglichkeiten und Grenzen der weisbeschaffung ausserhalb des internationalen Rechtshilfeweges 2000 134; Küttler A Das Erlangen von Be-weisen in den USA zur Verwertung im deutschen Zivilprozeß 2007 124 et seq.; Federal Republic of Germany ʻBrief of the Federal Republic of Germany as Amicus Curiaeʼ 1986 International Legal Materials 1546. See also Stadler A ʻGrenzüberschreitende Beweisaufnahmen in der Europäischen Union – die Zukunft der Rechts-hilfe in Beweissachenʼ in Schütze RA (ed) Einheit und Vielfalt des Rechts: Festschrift für Reinhold Geimer zum 65. Geburtstag 2002 1282 et seq.

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purely private matter, as the litigants, and not the trial court, are responsible for collecting the documents. Daoudi emphasises that the order of the trial court does not aim at the documents to be submitted, but at the person controlling the documents.¹⁹² A similar opinion is voiced by Küttler who maintains that the collection of documents is a preparatory measure which is not taken by the trial court, but by the person who gathers the documents and who forwards them to the said court.¹⁹³ Stadler emphasises that the collection of documents by an individual resid-ing in a state other than that of the trial court merely constitutes a preparatory measure while the actual taking of evidence ultimately occurs in the jurisdiction of the trial court.¹⁹⁴

The aforesaid view, which regards a request for the production of documents from foreign wit-nesses, as a transfer of foreign evidence is shared by the author. As in the aforementioned cases of testimony given by videolink, telephone or in response to a questionnaire, the examination of evidence is only concluded once the trial court has reviewed the documents,¹⁹⁵ while the gathering by the individual residing abroad merely constitutes a preparatory measure. Such an approach overcomes the outdated perceptions that some civil-law countries have in cases where the trial court does not become active on foreign territory. One has furthermore to keep in mind that the position against a transfer of foreign evidence is more deeply rooted in the concern of the said countries to protect their nationals and/or residents and less so in their con-cern to safeguard their sovereignty.

3. Court Order to Produce Evidence and Article 271 of the Swiss Criminal Code To date, the Swiss Federal Court has not yet decided, at least not in a published case, whether a witness located in Switzerland violates Article 271(1) of the Swiss Criminal Code when trans-mitting documents abroad in response to a respective request of a court located in a foreign country. In a decision of 1988, however, the Swiss Federal Court insinuated that in contrast to examining witnesses, filing documents is a party measure and not an “activity on behalf of a

192 Daoudi J Extraterritoriale Beweisbeschaffung im deutschen Zivilprozeß: Möglichkeiten und Grenzen der Be-weisbeschaffung ausserhalb des internationalen Rechtshilfeweges 2000 134, 150.

193 Küttler A Das Erlangen von Beweisen in den USA zur Verwertung im deutschen Zivilprozeß 2007 125. See also Musielak H-J ʻBeweiserhebung bei auslandsbelegenen Beweismittelnʼ in Schütze R (ed) Einheit und Viel-falt des Rechts: Festschrift für Reinhold Geimer zum 65. Geburtstag 2002 773; Linke H and Hau W Internati-onales Zivilverfahrensrecht 2011 47 n. 98.

194 Stadler A ʻ§ 363ʼ in Musielak H-J (ed) Kommentar zur Zivilprozessordnung mit Gerichtsverfassungsgesetz 2012 1255 n. 12. See also Leipold D Lex fori, Souveränität, Discovery: Grundfragen des Internationalen Zi-vilprozeßrechts1989 48; Geimer R Internationales Zivilprozessrecht 2009 215 n. 440; Gottwald P ʻGrenzen zivilgerichtlicher Massnahmen mit Auslandswirkungʼ in Lindacher WF et al (eds) Festschrift für Walther J.

Habscheid 1989 125.

195 See paras. V.C.2, V.D.2, and V.E.2.

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foreign state” in the sense of Article 271(1) of the said Code.¹⁹⁶ In contrast, in 1997, the Swiss Federal Council opined in a case where two defendants domiciled in Switzerland were ordered by a court in the United States to submit certain documents that such transmission is about as-sisting a foreign court in the taking of evidence and thus infringes Article 271(1) of the Swiss Criminal Code.¹⁹⁷ This view is shared by Hopf.¹⁹⁸ In this context, one has to keep in mind that the decision of the Swiss Federal Council is not binding on any judicial authority in Switzer-land, as it merely reflects the view of the executive. Given the absence of a published decision of the Swiss Federal Court which expressly deals with the aforesaid transmission of documents to a court abroad, it is unclear whether the witness’ activities in question are regarded as viola-tion of Article 271(1). In order to avoid any risk of prosecuviola-tion under the said provision, liti-gants and third parties domiciled in Switzerland should refrain from handing over documents to a court abroad.