I. General

1 Art. 27 CCC supplements the general mutual legal assistance requirement of Art. 25 para. 1 CCC and guarantees a minimum institutional framework for minor mutual legal assistance. The provision prevents the need to resort to non-contractual mutual legal assistance between two contracting parties and thus serves the principle of effectiveness under Art. 25 para. 1 CCC.

2 In addition to the obligation to designate certain authorities, the provision contains a more detailed obligation to execute requests for legal assistance. In this respect, it is self-executing according to the Swiss monistic understanding. However, as in the case of non-treaty legal assistance under the IMAC, there must be a basis for authorization in national procedural law for the individual measures requested. It also follows from Art. 25 para. 2 CCC that the contracting states must adapt their legal systems so that they do not conflict with the procedure under the articles of this section. No need for this was seen with regard to Art. 27 CCC.

II. Relationship to other provisions

3 Art. 27 CCC merely establishes a procedure for requests for legal assistance. The prerequisite is the opening of the scope of application specified in Art. 25 para. 1. This includes all proceedings in connection with computer systems and data as well as the collection of evidence in electronic form, including for other criminal offenses. The latter in particular creates a broad scope of application. The Second Additional Protocol to the CCC contains several partial references to Art. 27 CCC, namely in Art. 3 para. 2 lit. a, Art. 7 para. 5 lit. a, Art. 8 para. 8, Art. 10 para. 7 and Art. 11 para. 2 lit. b. However, Switzerland has not yet signed or ratified this Additional Protocol.

4 Art. 25 CCC regulates the scope of application and the principles of mutual assistance under the CCC. In paras. 2 and 4, it refers primarily to the provisions of the CCC and, subsidiarily, to national law, in Switzerland primarily to the IMAC, and secondarily to the APA and the CrimPC. Art. 27 CCC therefore takes precedence over national law within its scope of application from the perspective of the CCC. The extent to which this precedence also applies from the perspective of national law is a matter for national law. For Switzerland, Art. 27 CCC can be assumed to take precedence in principle. In view of the very fundamental, primarily organizational provisions in Art. 27 CCC, conflicts between this provision and national law are unlikely. Rather, it creates a minimum standard that does not preclude detailed and more extensive regulation by national law.

5 Art. 27 para. 1 sentences 1 and 2 CCC stipulate, in accordance with the heading of Title IV – “Procedure for requests for legal assistance without an applicable international agreement” that the provisions of the article are only applicable to individual requests for legal assistance if there is no (bilateral) legal assistance treaty or (multilateral) agreement in force between the requesting and requested states, or if the parties agree to apply Art. 27 CCC in whole or in part despite existing contractual legal assistance. Beyond the wording, another agreement limited to a specific area would not suffice. What is meant here is rather a general mutual legal assistance agreement that also guarantees contractual (minor) mutual legal assistance within the scope of application of Art. 25 para. 1 CCC. If such an agreement exists, Art. 27 CCC is not applicable, even in part, subject to an agreement between the contracting parties, for example with regard to the additional grounds for refusal in Art. 27 para. 4 CCC. This makes it clear that Art. 27 CCC merely sets a minimum standard that does not preclude further commitments by the contracting states in other agreements. This is not an essential provision of the CCC, such as Art. 25 para. 4 sentence 2 CCC or Art. 29 CCC, which are not flexible according to the system of the Convention.

6 The actual scope of application of Art. 27 CCC is limited for Switzerland, as it is for many other contracting states. It is significantly restricted by the European Convention on Mutual Assistance in Criminal Matters of April 20, 1959. This provides comprehensive and superseding rules between the signatory member states of the Council of Europe. In addition, there are bilateral mutual assistance treaties concluded by Switzerland, for example with the United States of America, Canada, and Peru. These treaties comprehensively regulate mutual legal assistance in criminal matters and also do not provide for the supplementary application of Art. 27 CCC, so that it does not apply. The regulation is primarily applicable for Switzerland in relation to many African and Latin American countries and between Switzerland and Japan. Countries without an applicable agreement or bilateral treaty are currently (as of April 12, 2025) the following: Argentina, Benin, Brazil, Cape Verde, Costa Rica, Côte d'Ivoire, the Dominican Republic, Fiji, Ghana, Grenada, Japan, Cameroon, Kiribati, Colombia, Morocco, Mauritius, Nigeria, Panama, Senegal, Sierra Leone, Sri Lanka, Tonga, and Tunisia. Finally, the procedure under the CCC is also likely to apply in relation to Paraguay. In this respect, there is only an extradition treaty, but no comprehensive treaty on minor mutual legal assistance. With regard to the taking and securing of evidence, only Articles 16 and 17 of the treaty contain provisions on the examination of witnesses. In addition, the scope of application of the extradition treaty is limited in Article 2, to which reference is made in the other articles, to certain listed offenses. The list includes, for example in the form of fraud covered by Article 2(18) of the treaty, only a small proportion of the offenses punishable under Articles 2 et seq. of the CCC, which is not surprising given that the treaty was concluded in 1906. Article 27 of the CCC is also likely to apply in relations between Switzerland and Rwanda. Articles 13 and 14 of the extradition treaty between Switzerland and Belgium, which remain applicable in this respect, contain only rudimentary provisions on minor mutual assistance through diplomatic channels. The purpose of Article 27 CCC, which is to ensure an effective minimum standard within its scope, also requires the application of the more extensive provisions of this article in this respect.

7 Conflicts of norms within the CCC would have to be resolved in accordance with the general principles of interpretation, in particular the lex specialis principle.

III. Requirements for mutual legal assistance

A. Establishment of authorities (para. 2)

8 The communication via central authorities that is customary in the field of mutual legal assistance is intended to provide the requesting party with a central point of contact and thus serve to speed up international criminal prosecution, which is particularly important in the case of cybercrime. At the same time, equal treatment of incoming and outgoing requests should be ensured. Communication via central authorities avoids the inefficient communication via diplomatic channels that would otherwise be necessary in the case of non-contractual mutual legal assistance.

9 The Federal Council has designated the Federal Office of Justice as the competent authority. Thus, there is no deviation from Art. 27 para. 2 IMAC for requests for mutual legal assistance based on the CCC. The current list of competent authorities of all contracting states can be found in English on the Council of Europe website.

B. Requirements regarding the manner of implementation (para. 3)

10 Para. 3 largely corresponds to Art. 65 IMAC and provisions in bilateral mutual assistance treaties. The provision is intended to ensure that evidence obtained through mutual assistance can be used in criminal proceedings in the requesting state. The criminal procedure law of the individual contracting states differs considerably in some respects with regard to the requirements for the taking of evidence. One example is the general requirement that witness statements be sworn, see also Art. 65 para. 1 lit. a IMAC. If the requested state, which does not have such a requirement, were to apply only its own procedural law, there would be a risk that the evidence would be inadmissible in the requesting state and the mutual assistance would fail to achieve its purpose. This is because the requested state regularly applies its own criminal procedure law, see Art. 12 and Art. 63 para. 1 IMAC.

11 However, the principle of effective mutual assistance is not guaranteed in absolute terms. Rather, the execution of the request in the procedure specified by the requesting state is subject to compatibility with the law of the requested state, see also Art. 65 para. 2 IMAC. The latter may therefore – without prejudice to any possibility of refusing mutual assistance altogether – apply its own procedural law insofar as the procedure specified by the requesting state is incompatible with its national law. Taking into account the wording of the English (“except where”) and French (“sauf lorsqu'elle”) language versions and the stated purpose of the exception, this should always refer only to individual requirements. The requested state may therefore not apply its national procedure as a whole because a single requirement is incompatible with its law. In accordance with the wording cited above, the principle laid down in Art. 25 para. 1 CCC and the legal principle underlying Art. 27 para. 6 CCC, it would even be appropriate to reduce the incompatible requirement to the extent possible to the still compatible extent and thus maximize the likelihood of its usability in the requesting state. A practical solution lies in consultation via the competent authorities designated in para. 2.

12 It is very important to distinguish between a manner of implementation that is incompatible with national law and one that is merely not provided for in national law, as refusal cannot be based solely on the latter fact. In any case, provisions of constitutional rank, such as those on secularism in relation to religious oath requirements, justify refusal. Conversely, the mere fact that national ordinary law provides for a different rule is naturally not sufficient. This must be distinguished, by interpretation in each individual case, from provisions of ordinary law that expressly preclude the specific implementation measure. The decisive factor is likely to be whether the required formality constitutes an additional significant interference with individual rights for which there is no legal basis.

13 The intention of the contracting states is likely to be to apply para. 3 more strictly than Art. 65 para. 2 IMAC. This is also reflected in the fact that the additional broad criterion of substantial disadvantage is not contained in the CCC. In addition, Art. 25 CCC also provides for a stricter mutual assistance regime for the particularly internationalized area of cybercrime.

14 At the same time, a comparison with para. 4 lit. a shows that the reduction to a pure ordre public reservation for the limited right of refusal under para. 3 is not intended. In this respect, the reservation is to be classified between the broad provision of Art. 65 para. 2 IMAC and a pure public policy principle, as contained, for example, in § 73 sentence 1 of the German IRG. Accordingly, a request can and must be refused if its execution would require significant interference with individual rights without a legal basis and contrary to the legislative balancing of interests.

15 Insofar as national procedural law imposes further requirements on the measure to be taken, these must in principle be complied with by the executing authorities of the requested state, see also Art. 12 para. 1 IMAC.

C. Objections to execution

1. Additional grounds for refusal (para. 4)

16 In proceedings under Art. 27 CCC, Art. 25 para. 4 CCC applies first. In this respect, too, reference is made to the grounds for refusal under national law or an applicable mutual assistance treaty, whereby refusal is inadmissible solely on the basis of classification as a fiscal offense. Art. 27 para. 4 CCC refers to Art. 25 para. 4 CCC and specifies two additional grounds for refusal: the prosecution of political offenses and the ordre public principle. The requested state may therefore invoke these grounds for refusal even if they are not provided for in national law. However, in the case of an applicable international agreement, Art. 27 CCC does not apply in principle, in accordance with para. 1.

17 Against the background of the CCC system, according to which the grounds for refusal under national law regularly apply in the case of Art. 27 CCC, it is not entirely clear at first glance what practical added value the additional grounds for refusal offer. A state that does not provide for these restrictions in its national law will not normally invoke them in proceedings under the CCC either, as refusal under para. 4 is at the discretion of the requested state. The significance of this is likely to be that, in applying the principle of maximum mutual assistance, the states have agreed to make use of the grounds for refusal under national law that are not mentioned in para. 4 only in exceptional cases within the scope of application of the CCC. Against this background, para. 4 has a clarifying and symbolic effect. The provision shows that the grounds for refusal mentioned remain valid as an expression of national ideology. However, the agreement not to apply other grounds for refusal as a rule is likely to be primarily politically binding, not least because it was not included in the text of the Convention.

18 For Switzerland, in addition to the IMAC, there may be a limited scope for the additional grounds for refusal in direct application of para. 4. In the case of political offenses, the ground for refusal under Art. 3 para. 1 IMAC applies. It can be assumed that Art. 27 para. 4 lit. a CCC also covers both absolute and relative political offenses. In view of the cautious provision in the CCC, which refers extensively to national law, and the subjective classification of an act as political or non-political, which varies between states, no autonomous interpretation should be made. Rather, the formulation of the ground for refusal should be left to the requested state, subject to abuse of rights. In the event of exclusion pursuant to Art. 3 para. 2 IMAC, refusal pursuant to Art. 27 para. 4 lit. a CCC is also not to be expected.

19 The ordre public reservation is partially expressed in Art. 2 IMAC. As a general principle of international law and in view of the constitutional interpretation of the IMAC, in particular the general clause of Art. 2 lit. d IMAC, it must also be assumed that it already applies under national law. Art. 27 para. 4 lit. b CCC simplifies the justification for refusal in this respect. The public policy reservation also applies to the failure to guarantee basic data protection standards, whereby high requirements must be met. Priority should be given to mutual legal assistance subject to a corresponding assurance.

2. Postponement of mutual legal assistance (para. 5)

20 Para. 5 allows the requested state, i.e. the competent authority, to postpone the execution of the request for legal assistance and thus to deviate from the requirement of prompt execution expressed in Art. 25 para. 1 CCC, the preamble to the Convention and the possibility of an urgent procedure under Art. 27 para. 9 CCC. Conversely, this means that if the conditions of para. 5 are not met, the request must be executed within a reasonable time. Since this is a less severe means of refusal, there is no fixed maximum period. Rather, the execution of the request may be postponed for as long as the conditions of para. 5 are met.

21 The prerequisite for postponement is the risk that immediate execution would impair the requested state's own criminal investigations or proceedings. Impairment is not limited to the frustration of the investigation, for example in the case of long-term covert investigations by the requesting state. Rather, the delay of an imminent taking of evidence that would otherwise be expected to result from the surrender of the evidence to the requesting state is sufficient grounds for refusal. Nevertheless, in the interests of comprehensive and expeditious mutual legal assistance, the possibility provided for in para. 5 should only be used with restraint.

22 According to the system of Article 27 CCC, refusal and postponement are independent of each other due to their different prerequisites and legal consequences, so that the decision on refusal could be postponed until the end of the period under para. 5. However, an overall assessment must in any case be made when deciding under para. 6 and should also be in line with the requirement of effective mutual assistance.

3. Condition as a minimum requirement for refusal and postponement (para. 6)

23 Para. 6 implements the principle of effective and comprehensive mutual legal assistance in accordance with Art. 25 para. 1 CCC. The requesting state should not be forced to elaborate detailed main and subsidiary requests. Rather, it is incumbent on the requested state to comply with the request as far as possible and to consult the requesting state if it has any reservations. This means that objections should be limited to separable parts of the request, as far as possible. The part not affected should then be dealt with immediately. As a second option for ensuring prompt execution, para. 6 provides for execution subject to conditions. These conditions primarily concern the use of the evidence transferred in the requesting state. Appropriate assurances must be obtained before the evidence is handed over. A common condition is that the evidence may only be used for the proceedings in question and not for any further proceedings. If, on the other hand, there are concerns about the legality of the execution in the requesting state, efforts should be made during the consultation to adapt the request. If this is not done, the request must be rejected in whole or in part, or the procedure set out in para. 3 must be followed. In the interests of effective mutual assistance, the rights of the requested state under para. 6 should also be exercised with restraint.

D. Obligation to provide information (para. 7)

24 Para. 7 contains notification requirements regarding the results of the execution and the reasons for a refusal or postponement. This serves to inform the requesting State so that it can make future requests to the same State more effective. A separate notification of the reasons for a condition is not required. It is apparently assumed that the reasons are either sufficiently apparent from the condition itself or that they will be discussed with the requesting State in the context of a consultation under para. 6.

E. Confidentiality (para. 8)

25 Para. 8 allows, beyond para. 3, a requirement for the execution of the request that does not serve the usability in the requesting state but other investigative or political interests. The wording “unless the execution of the request requires otherwise” in the German translation is misleading: the English (“except to the extent necessary”) and French (“sauf dans la mesure nécessaire”) versions make it clear that this clause elaborates on the concept of confidentiality and does not in principle restrict the possibility of proceeding under para. 8. Confidential within the meaning of para. 8 also includes, in particular, a measure that necessarily becomes known to the person concerned, such as the bank of the accused.

26 In view of the restrictive wording and the requirement for the most comprehensive mutual legal assistance possible, structural factual deficiencies cannot be used to justify inability to comply, such as problems with corruption within the competent authorities. The exception should rather be interpreted in accordance with para. 3, second half-sentence, and thus concern legal obstacles. Confidentiality cannot therefore be observed if the measures that are the subject of the request, including the fact that they are based on a request for mutual assistance, must be disclosed under mandatory national law.

27 The interest of the requesting state is usually to prevent the accused from becoming aware of the request. The same applies to the person affected by the measure, provided that this person is close to the accused and the measure can in principle be carried out secretly. Confidentiality is not guaranteed in any case if the accused is directly informed or if the information is likely to be disclosed by the person concerned. Furthermore, confidentiality is naturally not guaranteed if the fact that a request has been made or the content of that request becomes known to the public, i.e., to an indefinite number of persons who are not connected by any special characteristics.

28 This conflicts with the right of the person affected by the measure to effective legal protection: if the results of the measure are transmitted to a foreign state that is not bound by Swiss law, the consequences of a violation of the IMAC can no longer be remedied. The human rights of the accused and the person affected must be reconciled with the legitimate confidentiality interests of the requesting state. The balance of interests achieved by the IMAC tends to be favorable to the persons concerned.

29 Art. 80m IMAC regulates the service of decisions by the executing authority and thus presupposes the service of both the decision on admissibility and the final decision, as well as any interim decisions. The time of service is not regulated. Conversely, Art. 63 para. 2 IMAC provides for minor mutual legal assistance measures that would be frustrated by prior notification. This applies in particular to the search of persons and premises. Furthermore, the subject matter of legal protection and thus the primary point of reference for the right to be heard under Art. 12 IMAC in conjunction with Art. 29 APA is not the decision to initiate proceedings, but rather the final decision under Art. 80e para. 1 IMAC. It is therefore permissible to notify the person concerned of the decision to initiate proceedings only together with the final decision.

30 This ensures that measures which, by their nature, are not known to the person concerned – such as questioning – remain confidential with regard to the existence and content of the request. However, before the results of the measure are transmitted to the requesting state, the legal validity of the final decision must be awaited in accordance with Art. 80d in conjunction with Art. 80l para. 1 IMAC. Early transmission, which preserves confidentiality vis-à-vis the person concerned in the longer term, is only possible under the extremely narrow conditions of Art. 80d^bis IMAC, which requires, in particular, a case of organized crime or terrorism. In this case, notification to the person concerned is postponed in accordance with Art. 80d^bis para. 5 IMAC, but must be made subsequently. Complete confidentiality vis-à-vis the data subject regarding the existence of a request cannot therefore be guaranteed in any case.

31 If the data subject learns of the measure – through the disclosure of a decision or otherwise – they are entitled to the rights under Art. 80b para. 1 IMAC, namely the right to inspect the files and the right to participate in enforcement measures. This jeopardizes the confidentiality of the content of the request for mutual assistance. In this respect, however, Art. 80b para. 2 lit. a and b IMAC offer the extensive possibility of complying with the request for confidentiality regarding the content of the request.

32 Pursuant to Art. 80n para. 1 IMAC, the person concerned is also entitled in principle to inform his client or customer, usually the accused, about the mutual assistance measure. Confidentiality can then no longer be guaranteed vis-à-vis the latter either. However, Art. 80n para. 1 clause 2 IRSG allows the competent authority to prohibit the disclosure of information to the client or customer under penalty of law, which is sometimes done in the case of disclosure orders against banks (Art. 73 para. 2 CrimPC in conjunction with Art. 292 SCC). This ensures confidentiality, at least from a legal perspective.

33 Confidentiality can therefore be guaranteed in certain respects under various individual provisions. However, there is no general provision allowing mutual legal assistance requests to be handled confidentially with the same effectiveness as domestic measures. It is questionable whether this satisfies the requirement for adaptation under Art. 25 para. 2 CCC in every case.

34 Para. 2 leaves the requesting state with the power to decide on non-confidential processing if the requested state cannot comply with confidentiality.

F. “Accelerated procedure” (para. 9)

35 Para. 9 provides for the transmission of requests without the direct involvement of the central authorities in accordance with para. 2 in “urgent cases.” Communication takes place either directly between the executing authorities (lit. a and d) or via Interpol (lit. b). However, Switzerland has made use of the option provided for in lit. e and stipulates that incoming requests must – in accordance with the wording of the Convention “for reasons of efficiency” – be addressed exclusively to the central authority, the Federal Office of Justice. This relieves the executing authorities in Switzerland of the burden of immediately processing incoming requests. For requesting foreign states, this simplifies matters (only) insofar as they do not have to communicate via their central authority. Instead, a subordinate foreign authority may address a request to the Federal Office of Justice or the request may be forwarded to it via Interpol.

36 The purpose of Art. 27 CCC is to establish a minimum procedure between the contracting states that goes beyond non-contractual mutual legal assistance. Under no circumstances should the requesting state be placed in a worse position than if it had proceeded under its national IMAC. Requests under Art. 27 CCC may therefore also be made via the communication channels of Art. 29 IMAC. This includes a procedure under Art. 29 para. 2 alt. 2 IMAC, according to which the request is not addressed directly to the subordinate authority, but a copy can be sent to it at least at the same time as the request is sent to the Federal Office of Justice.

37 Para. 9 lit. e does not contain a reciprocity reservation. Subordinate Swiss authorities may therefore transmit outgoing requests under the CCC directly to subordinate authorities of other states, provided that these states have not themselves made a declaration under para. 9 lit. e. However, this does not correspond to the usual procedure in Switzerland (subject to the scope of application of international treaty provisions).

IV. Legal protection

38 For citizens affected by the measures that are the subject of the request, the legal protection options under Art. 25 para. 4 CCC are governed by the national law of the requested state. If Switzerland is requested, legal assistance must therefore be appointed under Art. 21 IMAC in certain circumstances, and the final decision may be appealed under Art. 80e IMAC. If Switzerland requests legal assistance from another state, legal protection against the measures as such is governed by the procedural law of that state. The person concerned may only appeal against the Swiss request under the conditions set out in Art. 25 para. 2 IMAC, which will not be met within the scope of Art. 27 CCC.

39 Art. 27 CCC is binding between the requesting and requested states and, if the conditions are met, creates an obligation to execute the request for legal assistance. Enforcement is governed by Art. 45 CCC, which provides primarily for a solution at the diplomatic level and, subsidiarily, for a decision by a body to be determined between the parties, namely the European Committee on Crime Problems (CDPC), an arbitral tribunal, or the International Court of Justice.

Bibliography

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Materials

Botschaft über die Genehmigung und die Umsetzung des Übereinkommens des Europarates über die Cyberkriminalität vom 18.6.2010, BBl 2010 4697 ff., abrufbar unter https://www.admin.ch/opc/de/federal-gazette/2010/4697.pdf, besucht am 5.4.2024 (zit. Botschaft 2010).

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