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- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
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- Art. 31 para. 2 lit. e 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. General information
1 In an increasingly globalized world, people and goods in particular move across borders with ease. Criminals too are taking advantage of this. As a result, criminal proceedings increasingly involve one or more foreign elements. If crime is to be effectively combated, states need to cooperate with each other. Indeed, criminal law, and in particular the use of coercion, is a sovereign competence of States. As such, if a State requires evidence or a person who is not on its territory or under its jurisdiction, in order to advance criminal proceedings on its territory, it cannot exercise its prerogatives of coercion without being assisted by the State on whose territory or under whose jurisdiction the person or item sought is located. Cooperation must therefore be established. The IMAC regulates these procedures. This notion of territorial sovereignty is challenged by the emergence of new types of evidence, in particular electronic evidence, and their collection. The location of such evidence is uncertain. The United States, for example, has passed a law giving American criminal authorities extraterritorial access under certain conditions. However, the IMAC remains rooted in traditional notions of territorial sovereignty.
2Art. 1 IMAC defines the material scope of the law, namely international cooperation in criminal matters. This covers all measures, including coercive measures, that a State may take to assist another State in its criminal proceedings, at any stage of the proceedings. Cooperation can take place at the investigative stage, during the proceedings, but also after the judgment has been handed down, particularly with regard to the enforcement of decisions.
3Since its adoption, art. 1 IMAC has been amended three times. The first was to separate the scope from the limits of cooperation. To this end, art. 1 para. 2 IMAC has been incorporated into a new art. 1a IMAC. The second amendment dates from July 1, 2002. As part of Switzerland's accession to the Rome Statute, the LCPI was adopted. Art. 1 IMAC was amended to give the LCPI precedence. Finally, the June 1, 2021 amendment opens up the possibility of applying the IMAC by analogy to cooperation with "international tribunals or other interstate or supranational institutions exercising functions as criminal authorities". This point will be discussed in greater detail below.
4In its current version, art. 1 IMAC contains five paragraphs. The first delimits the various matters covered by international criminal cooperation (cf. point II. A.) and specifies the subsidiary nature of the IMAC (cf. point II. B.). Paragraph 2 has been repealed, as mentioned above. Paragraph 3 specifies that the law applies only to criminal matters (see point II. C.). Paragraphs 3bis and 3ter deal with cooperation with international penal institutions (cf. point II. D.) and the last paragraph recalls the potestative nature of the IMAC (cf. point III.).
II. Scope of application
A. Materials covered (para. 1)
5Art. 1 para. 1 IMAC specifies that the law governs international cooperation in criminal matters as a whole.
6Cooperation is international in the sense that it generally involves at least two States. The notion of state is defined by public international law. Three criteria are used: territory, people and government. International recognition is not a necessary condition for a state to qualify as such under international law. States whose status is disputed nevertheless send requests for international cooperation in criminal matters. Switzerland cooperates with certain states whose recognition is contested by part of the international community. This is the case with Kosovo, which is recognized by Switzerland but not by the international community as a whole, and with which two bilateral treaties have been signed. The same is true of Taiwan (Republic of China), which is not recognized by the international community as a whole, nor by Switzerland. However, requests for mutual assistance have been accepted and confirmed by the Federal Court. However, it is not possible to conclude international agreements, such as bilateral treaties, with states that Switzerland does not recognize. Cooperation is granted on the basis of the IMAC. In the context of the transfer of sentenced persons, this can pose particular problems, as a treaty is generally required in addition to the IMAC.
7International cooperation in criminal matters therefore involves at least two States, but may also involve more. This may be the case in a complex case where evidence is available in different states. In this case, several requests will be issued between the different states concerned. This is also the case for joint investigation teams, which may involve more than two States. In both cases, however, requests will always be issued from one state to another. In Switzerland, the creation of joint investigation teams is based on a request for mutual legal assistance (art. 80dter IMAC). If several states participate in a joint investigation team, a request for mutual assistance is required between Switzerland and each participating state.
8Recent developments in international law have seen the emergence of international criminal tribunals and other international penal institutions set up by States or international organizations on the basis of international agreements or United Nations resolutions. These international criminal institutions have their own legal personality and powers of prosecution. However, they do not always have their own investigative services, as states do, and cannot operate on the sovereign territory of a state. As such, these institutions are dependent on the cooperation of other States, and are led to request international criminal cooperation from States. This cooperation must also be considered international within the meaning of the IMAC.
9The cooperation covered by the IMAC is cooperation in criminal matters (art. 1 para. 1 and 3 IMAC). It must be requested in the context of criminal cases and not for civil or administrative matters. This point will be discussed in greater detail below (see point C.).
10Art. 1 para. 1 IMAC also lists the four main areas governed by the IMAC, namely extradition, mutual legal assistance in the strict sense, delegation of criminal prosecution and enforcement of foreign criminal judgments. These are governed in detail by Parts 2 to 5 of the IMAC. This list is not exhaustive, and other areas of international cooperation in criminal matters may come within the scope of the IMAC in future revisions of the law. This leaves a certain amount of flexibility for future revisions of the law.
1. Extradition
11Extradition (art. 32 et seq. IMAC) refers to the surrender of a natural person from one state to another for the purposes of criminal proceedings. The person concerned by an extradition request may be the subject of criminal proceedings in the requesting state, and will then be extradited for the purposes of such proceedings. Extradition may also be requested when a person has been convicted in one state but has not completed serving his sentence in the convicting state. The person will then be extradited with a view to enforcing the criminal penalty.
2. Mutual legal assistance in the strict sense
12Mutual legal assistance in the strict sense (art. 63 et seq. IMAC) refers to all measures taken by one state on behalf of another in order to gather evidence useful for the prosecution of a criminal offence by the requesting state. This includes, for example, the taking of evidence, searches, the transmission of documents useful to the proceedings, the freezing and return of assets or the notification of judicial acts.
3. Delegation of criminal prosecution
13The delegation of criminal prosecution (art. 85 ff IMAC) is aimed at situations where punishable acts have been committed abroad but are being punished in Switzerland, or conversely where the offence has been committed in Switzerland but is being prosecuted abroad. The reasons may be that extradition is not possible, or that delegation of criminal prosecution offers better chances of social rehabilitation, for example. The requested state then prosecutes the person in place of the state in which the events took place. The aim is to avoid a situation where a person who cannot be surrendered through extradition goes unpunished, thus giving concrete form to the principle aut dedere aut judicare. In some cases, it also promotes social rehabilitation by enabling the person to be prosecuted in the State where he or she has the most ties.
4. Enforcement of criminal decisions
14Finally, the fourth type of procedure governed by the IMAC is the enforcement of foreign criminal judgments (art. 94 ff). This involves a State enforcing, on its territory, a criminal judgment handed down by another State. This differs from extradition for the enforcement of a sentence in that, in the case of extradition, it is the State that has rendered the decision that requests the extradition of the convicted person to serve his or her sentence in the territory of the sentencing State. In the case of enforcement of a criminal judgment, the judgment has been handed down by the sentencing state, which requests that the sentence be enforced in another state where the convicted person is located. Enforcement of a criminal judgment may involve a custodial sentence, as well as the enforcement of a financial penalty, for which extradition is not a consideration. The purpose of enforcing a custodial sentence on the territory of another State is to offer the convicted person a better chance of social rehabilitation.
B. Subsidiary nature (para. 1)
15The EIMP is a subsidiary law. Art. 1 para. 1 IMAC makes this clear: the law applies only where no other law or treaty is applicable. This is repeated in art. 1 par. 3bis IMAC. The IMAC thus complements existing law.
1. With regard to treaties
16In Switzerland, international law takes precedence over national law, and Switzerland undertakes to respect its international commitments in accordance with the principle of pacta sunt servanda. Treaties concluded by Switzerland will take precedence over the IMAC. This is the case, for example, with European conventions on extradition and mutual legal assistance, or with conventions adopted under the Schengen Agreement, or with United Nations conventions. Thus, the provision of the AP II on joint investigation teams will take precedence over that of the IMAC with States party to this protocol, for example. This is also the case for bilateral treaties that Switzerland concludes with other States. Two exceptions are mentioned below.
2. With regard to domestic law
17As far as domestic law is concerned, application of the general principle lex specialis derogat legi generali generally means that special laws take precedence over general laws. This means two things: that the IMAC has the character of a special law in relation to other provisions of Swiss criminal law or procedure which might regulate certain similar aspects, and that certain laws have the character of a special law in relation to the IMAC in the areas they regulate.
18 Thus, in mutual assistance proceedings, the provisions of the IMAC must take precedence over the rules of other, more general Swiss laws, in particular those of the Swiss Criminal Code or the Swiss Penal Code, which regulate points also applicable to mutual assistance. The IMAC, for example, governs the status of parties and the rights of appeal of persons involved in mutual assistance proceedings.
19 This principle also means that special laws governing certain subjects of international criminal cooperation law take precedence over the IMAC. Examples include the Federal Act on the Sharing of Confiscated Assets, which lays down specific rules on this subject, or the LCPI, which governs cooperation with the International Criminal Court.
3. Exceptions
20Two exceptions to this subsidiarity must be mentioned.
a. Preferential principle
21The first is the application in Switzerland of the principle of favor, which provides for the application of the IMAC if it is more favorable to cooperation than international law. This principle derives from Switzerland's objectives in the fight against crime. The aim of international mutual assistance in criminal matters is to promote the suppression of criminal offences, which is important to Switzerland. This is why Switzerland provides the widest possible range of assistance. This also follows from the fact that the purpose of a treaty in this field is to promote mutual assistance, and that it would therefore be paradoxical to grant more restricted mutual assistance to a state with which Switzerland has concluded a treaty than to a state with which it cooperates only on a reciprocal basis under the IMAC. This means, for example, that revisions to the IMAC providing for new measures may also apply to states with which Switzerland has concluded a treaty, even if the treaty does not expressly provide for such measures. This is the case with the new provisions on joint investigation teams (art. 80dter et seq. IMAC). These provisions may allow the creation of such a joint investigation team between Switzerland and a State with which it has concluded a treaty, even if such a possibility is not directly provided for in the treaty.
22The principle of favor applies unless it is specifically excluded by a law or convention. This is the case of the LCPI, which provides that "cooperation with the Court shall be carried out exclusively in accordance with the provisions of the present law and the Statute". It should also be pointed out that this principle of favor applies against the State, but is not necessarily favorable to the person concerned by the mutual assistance measure.
b. Complementary application
23The second exception is the complementary application of the IMAC to matters not governed by other laws or agreements, again provided that the cooperation is not governed exclusively by the other agreements or laws. International treaties, for example, do not regulate questions of procedure, appeals, time limits and so on. It is the IMAC that applies.
24Complementary application of the IMAC is also only possible if a law does not exclusively govern an area. For example, although cooperation with the International Criminal Court may now fall within the scope of art. 1 para. 3bis IMAC, it will continue to be governed exclusively by the LCPI.
C. Criminal cases in which a judge may be called upon (para. 3)
25Art. 1 para. 3 IMAC stipulates that international cooperation in criminal matters may only be granted (1.) in criminal cases (2.) in which it is possible to have recourse to a judge.
1. Criminal cases
26The EIMP applies only to criminal proceedings. Thus, proceedings to punish a criminal offence must have been initiated or completed in the requesting state. The notion of a criminal case must be interpreted broadly. The main element is the prosecution of a criminal offence. The term "criminal offence" refers to criminal offences punishable in Switzerland under the Swiss Criminal Code, as well as criminal offences punishable under ancillary criminal law. A criminal offence must be punished by a penalty. Penalties involving deprivation of liberty are penal sanctions par excellence, but the other sanctions provided for in the Swiss Criminal Code (art. 34 ff. Swiss Criminal Code) also attest to the penal nature of an offence.
27The notion of a criminal case may encompass ancillary criminal proceedings or administrative measures. Similarly, requests for mutual assistance are generally made by judicial authorities, but may sometimes be transmitted by administrative authorities in the requesting state, provided that these administrative authorities are competent to initiate criminal proceedings.
28For a case to be considered criminal within the meaning of the IMAC, the person concerned by the proceedings does not necessarily have to have been indicted. It is sufficient that an investigation has been opened against the person in the requesting state. However, this investigation must be likely to end up before the competent judge (see point 2 below).
29The State must also be competent to prosecute the offence which is the subject of the request. The requesting State may only submit a request for mutual assistance if it is itself competent to prosecute the offence which is the subject of the request. Such competence is presumed, however, insofar as the judicial organization of a State falls within its sovereign competence. Switzerland can only examine this point if it is clear that such competence is lacking.
2. Possibility of appealing to a judge
30The second condition of art. 1 para. 3 IMAC is that the person concerned by the criminal proceedings must have the possibility of appealing to a judge in the requesting state. The purpose of this condition is to guarantee the right to a fair trial guaranteed both by the Federal Constitution and by the international agreements that Switzerland has ratified.
31International cooperation in criminal matters enables the requesting state to ask the requested state for coercive measures. Such measures must be subject to judicial review in the criminal proceedings initiated. Thus, the person concerned by the proceedings for which mutual assistance is requested must have the possibility, during the course of the proceedings, of appealing to the competent judge in the requesting state. This is generally a criminal court, although in some cases an administrative court may be involved, provided it is competent to impose criminal penalties.
32Finally, the IMAC only requires the possibility of appealing to a judge. It is sufficient that the person has such a possibility under the law applicable to the proceedings initiated in the requesting state, even if he or she does not ultimately make use of it.
D. Cooperation with international penal institutions
1. Ex officio cooperation (para. 3bis)
33Paragraph 3bis governs ex officio cooperation with international criminal tribunals or other international, mixed or supranational institutions with criminal law functions (hereinafter referred to as international criminal institutions), insofar as they prosecute serious crimes under international law or are based on a United Nations resolution binding on Switzerland.
34International criminal institutions include international criminal tribunals such as the former International Criminal Tribunal for the former Yugoslavia and the former International Criminal Tribunal for Rwanda, as well as the International Mechanism for the Residual Mechanism of the International Criminal Tribunals, which carries out the residual functions of these two Tribunals, and any other similar tribunals that may be set up in the future. This also applies to mixed tribunals or institutions, i.e. those with both national and international components, such as the Extraordinary Chambers in the Courts of Cambodia, the Special Criminal Court of the Central African Republic or the Specialized Chambers in Kosovo (CSK) and the Specialized Prosecutor's Office. These courts are based on both national and international law, and are supported by an international organization such as the United Nations. Finally, commissions of inquiry set up by the United Nations, such as the International, Impartial and Independent Mechanism to Facilitate Investigations into the Most Serious Violations of International Law Committed in the Syrian Arab Republic, or by the Council of Europe, such as the "Marty Commission", are also covered by art. 1 para. 3bis IMAC. The condition is that these international penal institutions exercise functions of criminal authorities, i.e. that they investigate or prosecute criminal offences.
35Cooperation with some of these institutions was already governed by the Federal Act on Cooperation with International Tribunals for the Prosecution of Serious Violations of International Humanitarian Law. However, certain new tribunals or institutions were not covered by this law. This was the case, for example, with the Special Tribunal for Lebanon, with which cooperation was impossible before the amendment to the IMAC came into force on June 1, as it did not prosecute serious violations of international humanitarian law.
36Art. 1 para. 3bis IMAC stipulates that cooperation with international penal institutions will be carried out automatically on the basis of the IMAC in two specific cases. The first (let. a.) is where the international criminal institution is investigating or prosecuting serious violations of international law. The serious violations of international law referred to in this article are those punishable under sections 12bis, 12ter or 12quater of the Swiss Criminal Code, namely genocide, crimes against humanity and war crimes. The crime of aggression, if transposed into Swiss law, would also fall within the definition of serious violations of international law. These crimes are prosecuted by the International Criminal Court. These crimes are so serious that cooperation is required ex officio. The international criminal institution referred to in letter a. must not have been established by the United Nations. It may be an institution supported or set up by another international organization.
37The second case (let. b.) is cooperation with international penal institutions investigating and prosecuting ordinary offences, i.e. offences under the Swiss Criminal Code, excluding those punishable under titles 12bis, 12ter or 12quater of the Swiss Criminal Code. The best-known example is the Special Tribunal for Lebanon, which was set up by a United Nations resolution to prosecute those accused of perpetrating the attack of February 14, 2005. The offences prosecuted by this institution were acts of terrorism, crimes and misdemeanors against the life and physical integrity of persons, unlawful associations and failure to disclose crimes and misdemeanors. In this case, cooperation is only automatic if the institution is based on a UN resolution that is binding on Switzerland, or is supported by Switzerland. Switzerland's support is analyzed according to its official positions, such as its vote, if the resolution emanates from a body in which Switzerland was able to vote. If Switzerland has not been able to vote on the resolution, notably because the resolution emanates from a body in which it is not represented, its official opinions are decisive. By body in which Switzerland is not represented, the law refers primarily to the United Nations Security Council, where Switzerland is not a member. The special status accorded to the United Nations stems from the multilateral and even global role of this organization, as well as its ability to adopt resolutions that are binding on its member states.
38It should also be added that the IMAC applies by analogy to cooperation with international penal institutions. This law has not been amended in its entirety to take account of the specific features of international criminal institutions. It is drafted in such a way as to govern inter-state cooperation. Thus, application by analogy means that when the law uses notions relating to the State, such as "interstate", "requesting State", "requested State", etc., the same rights are granted to international penal institutions as to States. As a result, the case law, doctrine and practice developed on the basis of the IMAC will also be applicable to cooperation with international penal institutions. Applying the IMAC by analogy to cooperation with these institutions means that not only mutual legal assistance in the narrow sense can be granted to these institutions, but also the other measures provided for in the IMAC, such as extradition, delegation of proceedings and enforcement of criminal decisions.
39Finally, the application of the IMAC to cooperation with international penal institutions is also subsidiary. If cooperation with such an institution is governed by another law or by an international agreement, the IMAC will not apply (see point B. above for more details on the notion of subsidiarity). Thus, cooperation with the International Criminal Court remains governed exclusively by the ICPA. The international instruments setting up these institutions, if they provide for certain directly applicable standards of cooperation, will also be applied as a matter of priority to cooperation with these institutions.
40 With regard to the Federal Act on Cooperation with International Tribunals for the Prosecution of Serious Violations of International Humanitarian Law, its scope has been fully taken over by art. 1 para. 3bis IMAC. As such, this law was repealed when the new article came into force.
2. Para. 3ter: extension of cooperation to certain international penal institutions by ordinance
a. General
41Para. 3ter allows the Federal Council to extend the scope of application of the IMAC to other international penal institutions by ordinance, irrespective of the type of offences prosecuted by these institutions. At the time of the 2021 revision, the legislator decided that, for the sake of simplicity, the IMAC should be able to govern international criminal cooperation with all international penal institutions. Indeed, the IMAC has been the basis for a long-standing practice and detailed case law. The application of this law to cooperation with all international penal institutions that may emerge in the future provides answers to most of the questions that could possibly arise.
42The delegation of competence provided for in art. 1 para. 3ter IMAC is similar to that provided for in the former law on cooperation with international tribunals for the prosecution of serious violations of international humanitarian law, which enabled this law to be applied to cooperation with the Special Court for Sierra Leone (SCSL).
b. Conditions
43 Three different cumulative conditions must be met before the Federal Council can issue such an order: the tribunal or institution must have a legal basis that clearly defines its powers in terms of criminal law and procedure, the proceedings before the tribunal or institution must guarantee respect for the principles of the rule of law, and the cooperation must serve to safeguard Switzerland's interests.
44The EIMP stipulates first of all that the international criminal institution concerned by the ordinance must have been set up by a legal act defining the institution's powers. Both the material powers, i.e. the offences prosecuted by the international criminal institution, and the procedural powers, i.e. the rules governing the conduct of investigations, proceedings, the appointment of judges, etc., must be laid down in the constituent instrument. This act must have been adopted according to a transparent process that meets the criteria of the rule of law. However, this process stems from an interstate organization. The criteria may not be the same as in domestic law.
45Secondly, the procedure before the international criminal institution must guarantee the principles of the rule of law. This means that the procedure must guarantee the fundamental rights enshrined in the ECHR. These include, in particular, the right to a fair trial, the rights of the defense, the presumption of innocence, assurances linked to detention, and the prohibition of torture and inhuman or degrading treatment or punishment. Thus, the institution's constitutive act must contain such safeguards or refer to an instrument preserving these rights within the framework of the procedures to be carried out by the institution.
46Thirdly, cooperation with the international penal institution must contribute to safeguarding Switzerland's interests. In particular, this means taking into account the foreign policy objectives set out in the Swiss Constitution, as well as those set out in the foreign policy strategy adopted by the Federal Council at the beginning of each legislature. Switzerland's interests include, for example, its commitment to peace and security, which entails investigating and prosecuting serious crimes under international law in order to combat impunity, as well as the general objective of combating transnational crime, which contributes to Switzerland's prosperity, as described in the Federal Council's strategy.
47These could be institutions set up outside the UN framework to prosecute ordinary crimes. In fact, the first ordinance adopted by the Federal Council is aimed at an institution created by the European Union and which, at least at the time of entry into force of this ordinance, prosecutes rather financial offences.
c. Federal Council ordinances
48The Federal Council first made use of the possibility provided for in para. 3ter for the first time on December 21, 2022. It adopted the Ordinance on Cooperation with the European Public Prosecutor's Office to regulate international cooperation in criminal matters between the Swiss authorities and this new body. The message gives examples of other institutions for which such an ordinance could be adopted, such as the Khmer Rouge Tribunal or the Marty Commission, or even other international criminal institutions that already exist or may emerge in the future, depending on the needs of the authorities.
49The Federal Council Ordinance consists simply of two articles. The first sets out the purpose of the ordinance, while the second provides for its entry into force. The Federal Council Ordinance provides for application by analogy of the IMAC to cooperation with such a new institution. As mentioned above, application by analogy allows existing practice and jurisprudence to be taken over without extensive amendment of the IMAC, since the terms relating to the notion of State are to be interpreted in such a way that they also include international penal institutions.
III. Potestative nature (para. 4)
50Paragraph 4 is the cornerstone of the IMAC, which is a potestative law. It enables Switzerland to cooperate both with other States and with the international penal institutions included within its scope. However, no obligation to cooperate can be derived from it. In this sense, it does not go as far as the bi- or multilateral international agreements that Switzerland has been able to conclude, since some of these provide for an obligation to cooperate. Thus, the IMAC allows Swiss authorities to grant cooperation to States or international criminal institutions, but does not allow other States or international criminal institutions with which Switzerland has no agreement to demand cooperation.
51An obligation to cooperate with certain States may derive from international agreements that Switzerland has ratified. An obligation to cooperate with certain international institutions, on the other hand, may derive from the constitutive act of that institution. For example, certain Security Council resolutions establishing international criminal tribunals have provided for such an obligation to cooperate. While the IMAC applies to cooperation with these tribunals on the basis of the new art. 3bis, the obligation to cooperate derives from the applicable international law, i.e. from the resolution establishing the institution, and not from the IMAC.
The view expressed reflects the personal opinion of the author and does not bind the Federal Office of Justice.
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