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- Art. 5a FC
- Art. 6 FC
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- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
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- Art. 701 CO
- Art. 715 CO
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- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
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- Art. 31 PRA
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- Art. 32a PRA
- Art. 33 PRA
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- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
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- Art. 67a PRA
- Art. 67b PRA
- Art. 75 PRA
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- Art. 76a PRA
- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
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- Art. 22 FADP
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- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
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- Art. 44a FADP
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- Art. 47a FADP
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- Art. 51 FADP
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- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
I. Introduction
1 Part of Chapter III of the Convention on Cybercrime, entitled "International Cooperation", art. 33 CCC is the first of the Convention's two provisions dealing with the obligations of States Parties to cooperate in the collection and transmission of communications data. This provision concerns traffic data, as opposed to art. 34 CCC, which deals with data relating to the content of the communication.
2 The ratio legis of this provision is that, very often, investigators cannot be sure of being able to trace the source of a communication by relying on records of previous transmissions, as crucial traffic data may have been automatically deleted by a service provider from the transmission path before it could be retained; it was therefore deemed necessary for investigators in each Party to be able to obtain real-time traffic data concerning communications transmitted by a computer system located on the territory of other Parties.
3 Swiss practice confirms this need, in view of the proliferation of messaging and e-mail platforms offering anonymization services not only through the use of end-to-end encryption, sometimes coupled with zero-access encryption, but also by the fact that connection logs are not kept, so that neither retroactive monitoring of traffic data nor search of stored data is likely to identify the user of the service. Real-time interception of data enables the source of the communication to be traced - if necessary via the mechanism provided for in art. 30 CCC.
4 Art. 33 para. 2 CCC obliges States Parties to provide mutual assistance "at least in respect of criminal offences for which real-time collection of traffic data would be available in a similar domestic case". It is therefore the national substantive criminal law (catalog of offences in particular) that defines the minimum framework for each Party's commitments. This solution has the merit of avoiding the pitfall of drawing up a list of offences for which mutual assistance should be granted in this constellation, which, given the diversity of cultures and legal systems, would undoubtedly have led to an outcry from many States. On the contrary, it aims to encourage the Parties to grant the widest possible mutual assistance, even in situations where the offences being prosecuted could not justify such a surveillance measure in national criminal proceedings, a solution which Switzerland has not decided to adopt.
5 At the level of national procedural law, the CCC obliges States Parties to adopt such legislative measures as may be necessary to empower its competent authorities, on the one hand, to collect or record on its territory, in real time, traffic data associated with specific communications transmitted on its territory by means of a computer system, and, on the other hand, to compel service providers to collect or record such data themselves, or to assist the authorities in doing so (art. 20 CCC).
II. Notions
6 By "traffic data", the Convention means "any data relating to a communication passing through a computer system, produced by the latter as part of the communication chain, indicating the origin, destination, route, time, date, size and duration of the communication or the type of underlying service" (art. 1 let. d CCC). These data are produced by computers belonging to the communication chain to route the content of a communication from its origin to its destination. They are therefore auxiliary to the communication itself. Origin" refers to a telephone number, IP address or similar means of identifying a communication device to which a service provider supplies services. Destination" means a comparable indication of a communication device to which communications are transmitted. Type of underlying service" refers to the type of service used within the network: file transfer, e-mail or instant messaging. In short, traffic data provides information on the sender and receiver, as well as on the time, extent, duration, type and route of a communication.
7 The very definition of "traffic data" was not expressly taken up by the Swiss legislator when implementing the Convention (in particular in art. 18b IMAC; see III.A. below). At the time, the Federal Council considered that the definition was sufficiently described by doctrine and practice, namely: "Traffic data includes in particular the addressing resources of the origin of the access, the date and time of the start and end of the connection, the data used for the identification procedure (login) and the type of connection". Since September 1, 2016, Swiss law has defined "secondary telecommunications data" (art. 273 CPP referring to art. 8 let. b LSCPT) as "data indicating with whom, when, for how long and from where the person under surveillance has been or is in communication, as well as the technical characteristics of the communication in question". If this notion of secondary data is also applicable to telecommunications in general - and not just to computer traffic - it covers the notion of traffic data. This concept is opposed to that of content data (see commentary on art. 34 CCC).
8 Art. 33 CCC covers the real-time collection of traffic data. The aim is to intercept this data, now and in the future, as and when communications arrive or depart. This concept is opposed to the collection of pre-existing data, recorded or stored on a data storage medium (server, cloud, etc.), even when the data relates to the traffic of communications that have already taken place. This direct temporality implies that the person under surveillance has no control over this data. In other words, there is typically no possibility of deleting the data before it is intercepted. In principle, the "interception" of this data is carried out by a third-party provider (internet and/or telephone provider, derivative telecoms provider, such as companies managing communication applications). In our view, Art. 33 CCC does not cover, in particular, the interception of data directly from the person under surveillance by means of Trojan horse software (Govware). On the other hand, interception of traffic by means of a special technical surveillance device, such as an IMSI catcher, does not appear to be ruled out (see III.A.3 below).
9 Intercepted data must be "associated with specified communications". The use of the plural is explained by the fact that it may be necessary to collect traffic data relating to several communications in order to establish the identity of the person originating the communication and/or the person for whom it is intended. The notion of "specified" means that the CCC does not require States Parties to set up general or systematic monitoring and collection of large quantities of traffic data. This provision cannot therefore justify an indeterminate search for evidence ("fishing expedition"). In the opinion of the authors, logs of connections to an e-mail box (logs and associated IPs) are also "associated with a specific communication" under the terms of this provision. Indeed, even though connection to an e-mail box does not necessarily lead to the sending or receiving of a communication, it is a necessary precondition for it. This seems to be the approach adopted by Swiss law; indeed, as we have seen, in the CCC Message, the Federal Council relied on a definition of the doctrine which includes addressing resources, including the dates and times of connection and disconnection. Moreover, art. 18b IMAC does not include this notion of "specified communications", which in particular paves the way for the real-time collection and anticipated transmission of connection logs (cf. infra III.A.4.).
10 Furthermore, specified communications must take place on the territory of a Party. This aspect could be potentially problematic, given that the use of cloud-type technology no longer makes it possible to associate a storage location with a particular State. In practice, the criterion of the place of storage of data has lost its importance in favor of that of the location of the person (natural or legal) who has effective control over the data. In the authors' view, art. 33 CCC also applies in this new context.
11 This provision requires the Parties to provide mutual assistance in the real-time collection of such data. While, on first reading, the notion of "collection" includes that of "transmission" - since this collection takes place at the request and for the needs of a foreign authority - we shall see that the Swiss legislator has distinguished between these two notions in implementing art. 33 CCC (cf. III. below).
12 Finally, the Convention does not apply as such to traditional telecommunications (analog telephony), since data must be transmitted by means of a computer system. The advent of digital telephony, and more generally the convergence of telecommunications technologies, is nevertheless blurring the distinctions between telecommunications and teleinformatics, and the specificities of their infrastructures. Thus the Convention - in particular art. 20 and 33 CCC - applies to specified communications transmitted by means of a computer system, the communication being able to be transmitted via a telecommunications network before being received by another computer system.
III. Implementation in Swiss law
A. Art. 18b IMAC
1. Background
13 Art. 18b IMAC was introduced in the wake of Switzerland's ratification of the CCC. The CCC Message recalls that real-time surveillance measures must, by their very nature, remain unknown to the persons under surveillance; this postulate is difficult to reconcile with the basic principle of the IMAC, according to which no information pertaining to a person's secret sphere may be transmitted abroad without that person having first been given the opportunity to object. Art. 18b IMAC thus meets the requirements of art. 33 CCC.
2. Definitions
14 Under Art. 18b para. 1 IMAC, the federal or cantonal authority responsible for processing a request for mutual assistance may order the transmission abroad of data relating to computer traffic before the conclusion of the mutual assistance procedure if the provisional measures show that the source of the communication which is the subject of the request for mutual assistance is abroad (para. 1 let. a) or if these data are collected by the executing authority under an authorized real-time surveillance order (art. 269 to 281 CCP; para. 2 let. b). While letter a is the implementing legislation for art. 30 CCC, letter b implements Switzerland's international commitments under art. 33 CCC. However, this provision does not yet guarantee the granting of mutual assistance, since para. 2 prohibits the use of such data as evidence before the decision on the granting and scope of mutual assistance (art. 80d IMAC) has acquired the force of res judicata. The decision based on art. 18b IMAC allowing rapid access to the data by the requesting authority is an incidental decision, which then paves the way for the classic mutual assistance procedure required under Swiss law. In this respect, the legislator has taken care to distinguish the collection of data and its rapid access by the requesting authority from the mutual assistance itself, reconciling the Swiss legal order with international commitments.
3. Procedure
15 Art. 18b para. 1 let. b IMAC refers to arts. 269 to 281 of the Swiss Code of Criminal Procedure, and thus to art. 273 of the Swiss Code of Criminal Procedure with regard to the surveillance of secondary telecommunications data. In particular, the latter stipulates that only serious suspicion of the commission of a crime (art. 10 para. 2 and 3 PC) allows the public prosecutor to obtain secondary telecommunications data. Thus, the Swiss legislator did not wish to open the scope of application of art. 33 CCC to offences which would not allow the application of these measures under Swiss law, as proposed in art. 33 para. 2 CCC.
16 Art. 18b para. 1 let. b IMAC represents a departure from the classic system of mutual assistance, under which the right to be heard of the person affected by a mutual assistance measure must be guaranteed and a closing order duly notified and entered into force prior to any transmission of evidence abroad (art. 80d IMAC). Before this provision came into force, Switzerland could not provide such secret surveillance data abroad without first informing the person concerned (provided he or she was domiciled in Switzerland or had elected domicile there; cf. art. 80m IMAC), which often rendered the measure useless for foreign proceedings, or even jeopardized them.
17 From now on, once it has taken a decision (art. 80a IMAC), the executing authority will order the surveillance measure through the Service Surveillance de la correspondance par poste et télécommunication (Service SCPT; art. 273 CPP in conjunction with art. 60 ff OSCPT).
18 It must then obtain authorization for the measure from the Coercive Measures Court within 24 hours of the order (art. 274 al. 1 CPP). It should be noted that, with regard to the condition, set out in art. 273 CPP, of the existence of a "serious suspicion", the Federal Court rightly recalled that, according to the rules on mutual legal assistance and established case law, art. 14 CEEJ, 28 IMAC and 10 OIMAC require the requesting authority to explain what its suspicions consist of, but not to prove them or even make them likely. Subject to the prohibition on exploratory requests, the requesting authority's suspicions need not therefore be particularly serious or precise. Indeed, while domestic law must be applied when it is more favorable to cooperation than treaty law, it cannot lay down material conditions for mutual assistance that are not provided for in treaty law.
19 The Compulsory Measures Court decides within five days (art. 274 para. 2 CPP). If surveillance is refused, the documents and recordings collected must be destroyed immediately (art. 277 al. 1 CPP). If authorization is granted, it should be noted that art. 279 of the Swiss Code of Criminal Procedure (CCP), which provides for communication to the accused or to the third party subject to surveillance, and establishes a right of appeal for the latter and for the monitored telecommunications service (art. 279 para. 3 CCP), does not apply, despite the reference in art. 18b para. 2 let. a to arts. 269 to 281 CCP. In fact, the conventions and laws applicable to international mutual assistance in criminal matters derogate from the usual system of the CPC, which only applies if it is more favourable to cooperation than the applicable conventions and laws (principle of favourability). In particular, this means that party status, the right to notification and legal remedies are governed by the specific provisions on mutual assistance. However, according to art. 80m para. 1 IMAC, the obligation to notify decisions on mutual assistance is limited to persons residing or having elected domicile in Switzerland. Any indications to the contrary by the TMC, whether by reference to the law or by imposing conditions within the meaning of art. 274 para. 2 CPP, would therefore be invalid, as the TMC has no jurisdiction over this aspect of the proceedings. It will be up to the executing authority, in the context of the mutual assistance procedure - i.e. after the anticipated transmission provided for in art. 18b IMAC - to ensure compliance with these conventions and applicable laws, and to make the notifications provided for in art. 80m IMAC.
20 Upon receipt of the surveillance data, the executing authority may issue an incidental decision based on art. 18b IMAC, ordering early transmission of the data to the requesting authority. The decision, as well as the surveillance order and authorization, are communicated to the FOJ (art. 18b para. 3 IMAC). If the surveillance is intended to last over time, and data are regularly collected, the decision may cover all future data resulting from the authorized surveillance, so as to enable the executing authority (or the police, as the case may be) to transmit the data as and when they are received. In the absence of any notification to the person concerned at this stage, and in view of the limits imposed by art. 18b para. 2 IMAC, such a procedure does not prejudice the rights of the parties to the mutual assistance procedure, and must be allowed.
21 It should nevertheless be borne in mind, whenever data is transmitted in advance to the requesting authority, that it may not be used as evidence until the decision on the granting and scope of mutual assistance has become res judicata (art. 18b para. 2 IMAC). In this way, legal protection is guaranteed a posteriori. It is also essential to keep a record - at least in the form of a list - of the data transmitted in advance, so as to enable the executing authority, at the end of the mutual assistance procedure, to know precisely which data will be the subject of the final closing decision.
22 In practice, when the person affected by the surveillance measure is unknown, is not domiciled in Switzerland or has not elected domicile there, or even uses a false identity, the executing authority can quickly validate the use of the data as evidence by means of a closure decision. As this decision is notified only to the FOJ (art. 80h let. a IMAC), secrecy regarding the existence of the measures is preserved.
23 If the person affected by the surveillance measure is domiciled or has elected domicile in Switzerland, his or her right to be heard must be guaranteed (art. 80m para. 1 IMAC in conjunction with art. 80b IMAC), which implies that he or she must be informed of the measure and given the opportunity to express his or her views in writing before the closing decision is issued. Under art. 18b IMAC, it is possible to postpone informing the affected person and granting him or her the right to be heard for as long as is necessary for the procedure abroad. In practice, the executing authority will regularly have to ascertain from the requesting authority whether it is necessary, for the proceedings abroad, to keep secret the surveillance measure ordered in Switzerland.
24 The decision to terminate the procedure may be appealed to the Federal Criminal Court (art. 80e IMAC). The incidental decision to transmit traffic data in advance, in accordance with art. 18b IMAC, may be challenged together with the decision to close the case (art. 80e para. 1 IMAC). An immediate appeal against the incidental decision seems possible, if the executing authority has not taken the necessary precautions to ensure that the requirements of art. 18b para. 2 IMAC are respected. An appeal to the Federal Court remains possible under the restrictive conditions of art. 84 FSCA (particularly important case). Some scholars maintain that if the appeal is upheld, the information transmitted must be removed from the foreign file. This is certainly the case if the foreign authority has undertaken to do so, although this obligation does not appear in art. 18b IMAC.
25 The very broad wording of art. 18b para. 1 let. b IMAC also seems to allow for the anticipated transmission of data relating to computer traffic when this has been intercepted by means of IMSI catcher (art. 269bis CPP), govware (art. 269ter CPP) or even other technical surveillance devices (art. 280 CPP), even though art. 33 CCC would not impose such an obligation.
4. Some material delimitations
26 Unlike art. 33 CCC, art. 18b IMAC is not limited to "specified communications". Thus, the logs of an e-mail box can be obtained by means of real-time monitoring and transmitted in advance to the requesting authority, even in the absence of a communication (e.g. no e-mail sent during that connection session, or no e-mail received).
27 The Federal Court has held that art. 18b IMAC provides a legal basis for the advance transfer of traffic data resulting from real-time surveillance, to the exclusion of content data, in the absence of a legal or contractual basis.
28 In the same ruling, the Federal Court opened up the possibility of advance transmission of data within the meaning of art. 18b IMAC to data relating to telephone traffic. Thus, secondary data resulting from active monitoring of a telephone connection (e.g. numbers called or calling, duration of telephone conversation or antenna activated) are data which should be able to be transmitted in advance to a foreign authority on the basis of art. 18b IMAC. In our view, this interpretation by the Federal Court is logical in view of the widespread digitization of telecommunication systems and, consequently, the increasingly obsolete and artificial nature of the distinction between traditional telecommunication systems on the one hand, and computer systems on the other.
29 Art. 18b IMAC has a further advantage: if the collection of traffic data transmitted in advance reveals that a new surveillance measure on another account, another line, etc., in Switzerland or abroad, is justified, the requesting authority can immediately request the execution of such a measure.
B. Distinctions
30 The advance transmission of information relating to computer traffic provided for in art. 18b IMAC must be distinguished from the spontaneous transmission of evidence and information (art. 67a IMAC), which is also an exception to the principle that a final decision is required before any transmission abroad can take place. Unlike the system under art. 67a IMAC, art. 18b IMAC is necessarily involved in the execution of a foreign request for mutual assistance to obtain such evidence. Article 18b IMAC makes no provision for "spontaneous" advance transmission of traffic data. What's more, art. 67a IMAC prohibits the transmission of evidence as soon as it falls within the sphere of secrecy (art. 67 para. 4 IMAC). In such cases, only information may be provided to a foreign authority (art. 67a para. 5 IMAC).
31 The advance transmission of information relating to computer traffic under art. 18b IMAC must also be distinguished from dynamic mutual assistance (art. 80dbis IMAC), which exceptionally allows the advance transmission of information or evidence (a) when foreign investigations into organized crime or terrorism would be excessively difficult without this mutual assistance measure, in particular because of the risk of collusion, or because the confidentiality of the proceedings must be preserved, or (b) in order to prevent a serious and imminent danger, in particular the commission of a terrorist act. The introduction in 2021 of this new provision - accompanied by new rules on the joint investigation team - was seen as an important first step towards more flexible rules and faster, more responsive mutual assistance, based on international trust. In terms of material scope, art. 18b IMAC is unlimited, while art. 80dbis IMAC is limited to organized crime and terrorism, except in cases of grave and imminent danger. Conversely, art. 80dbis IMAC provides that any type of evidence or information may be transmitted in advance by this means, whereas the scope of art. 18b IMAC is limited to data relating to computer traffic, although the Federal Court has paved the way for an analogous application of art. 18b IMAC to telephone surveillance. Finally, art. 18b IMAC does not provide - explicitly at least - for any prior commitment on the part of the requesting authority, the executing authority having to inform the latter that the data transmitted in advance may not be used as evidence before the decision on the granting and scope of mutual assistance has acquired the force of res judicata (art. 18b para. 2 IMAC). On this point, art. 80dbis IMAC is more formalistic (cf. art. 80dbis al. 4 IMAC).
32 Finally, early transmission within the meaning of art. 18b IMAC does not appear to be of particular interest in the context of a Joint Investigation Team (JIT; art. 80dter to 80dduodecies IMAC); indeed, the restricted material scope of art. 80dbis IMAC does not, in the authors' opinion, apply to joint investigation teams, despite the unfortunate reference in art. 80docties IMAC to the conditions of art. 80dbis IMAC.
The authors have written this contribution in their personal capacity. The assessments and opinions presented are their own and are not binding on the Swiss Federal Prosecution Service.
Bibliography
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Dangubic Miro/Clerc Yves, Art. 80dbis IRSG – ein Überblick, forumpoenale 4 (2022) p. 287.
Donatsch Andreas/Heimgartner Stefan/Meyer Frank/Simonek Madeleine, Internationale Rechtshilfe, 2e édition., Zurich et al. 2015.
Glutz Alexander M., commentaire de l’art. 67a EIMP, in : Niggli Marcel Alexander/Heimgartner Stefan (édit.), Basler Kommentar Internationales Strafrecht, 1ère édition, Bâle 2015.
Hansjakob Thomas/Pajarola Umberto, commentaire de l’art. 272 CPP, in : Donatsch Andreas/Lieber Viktor/ Summers Sarah/Wohlers Wolfgang (édit.), Kommentar zur Schweizerischen Strafprozessordnung StPO, 3e édition, Zurich 2020.
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Materials
Message concernant la loi fédérale sur la surveillance de la correspondance par poste et télécommunication (LSCPT) du 27 février 2013, FF 2013 2379, consultable sous https://www.fedlex.admin.ch/filestore/fedlex.data.admin.ch/eli/fga/2013/512/fr/pdf-a/fedlex-data-admin-ch-eli-fga-2013-512-fr-pdf-a.pdf, consulté en janvier 2024 (cité : Message LSCPT).
Message relatif à l’approbation et à la mise en œuvre de la Convention du Conseil de l’Europe sur la cybercriminalité du 18 juin 2010, FF 2010 4275, consultable sous https://www.fedlex.admin.ch/filestore/fedlex.data.admin.ch/eli/fga/2010/813/fr/pdf-a/fedlex-data-admin-ch-eli-fga-2010-813-fr-pdf-a.pdf, consulté en janvier 2024 (cité : Message CCC).
Rapport explicatif de la Convention sur la cybercriminalité du 23 novembre 2001, Conseil de l’Europe, Série des traités européens – no 185, consultable sous https://rm.coe.int/16800ccea4, consulté en janvier 2024 (cité : Rapport explicatif du Conseil de l’Europe).