-
- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- 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
-
- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- 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
-
- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
-
- 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
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- 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
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
-
- 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 historical overview of the origin of the standard
- II. Modification of the standard
- III. The article in context
- IV. Commentary on the article
- Further reading
- Bibliography
I. General historical overview of the origin of the standard
1 Prior to the entry into force of the EIMP, the extradition procedure, depending on the nature of the allegations, allowed either the administration or the Federal Supreme Court to rule. There were no regulations governing the other types of criminal cooperation, i.e. other acts of mutual assistance (also known as "minor" or "accessory" mutual assistance), delegation of the prosecution and punishment of an offence, and enforcement of foreign criminal judgments.
2 In practice, the division of powers depended on the legal nature of the issues to be decided: cantonal authorities, empowered by cantonal procedural codes, decided on questions of the application and scope of procedural requirements, while the Police Division generally ruled on questions relating to international relations, conditions and restrictions on mutual assistance. In addition, the Police Division could challenge the decisions of the cantonal authorities by means of a denunciation addressed to the federal supervisory authority. The Police Division's decisions could be challenged by means of an administrative appeal.
3 As can be seen from the Federal Council's Message to the Federal Assembly in support of a law on international mutual assistance in criminal matters and a federal decree on the reservations relating to the European Convention on Extradition of March 8, 1976 (hereinafter referred to as "the Federal Council's Message of March 8, 1976"), this division of powers was unsatisfactory: it was possible for both the Federal Council and the Federal Supreme Court to be competent to rule in the same case. Moreover, in other acts of mutual assistance, jurisdiction was unclear, creating the risk that, if the first authority seized was incompetent, the appeal would subsequently be rejected by the other authority for late filing. In addition, public interest in certain aspects of international legal assistance - notably the protection of secrecy - was growing, and the number of appeals was increasing. It was imperative to establish "uniform and judicious regulations for all modes of collaboration". The Federal Council therefore decided that Article 12 EIMP, which later became Article 16, would grant the Federal Administration jurisdiction over extradition proceedings. As for other cases of mutual assistance, they were entrusted to the cantons for reasons of expediency - the Confederation had the appropriate bodies only in special cases - and insofar as a federal authority was not competent.
4 It is interesting to note that this article, like article 17 EIMP, was largely inspired by article 3 of the Federal Act on the Treaty with the United States of America on Mutual Assistance in Criminal Matters of October 3, 1975 (hereinafter: LTEJUS).
II. Modification of the standard
5 The only amendment to this article since the EIMP came into force on January 1, 1983, concerned paragraph 2, which was repealed on June 13, 2008 with effect from January 1, 2011, following the unification of criminal procedure law on December 21, 2005. Article 54 CPP rendered this paragraph obsolete by stipulating that, when a request for international legal assistance is received from a canton, the public prosecutor's office of the canton concerned is competent to carry out the resulting tasks.
III. The article in context
6 Article 16 EIMP is to be found in the first part of the law, more specifically in Chapter 3, which governs procedure in Switzerland and contains the provisions deriving from the special legal nature of international mutual assistance in criminal matters.
7 This first part of the law contains the general provisions of the law. Chapter 1 defines the scope of application of the law (purpose and limits of cooperation, inadmissibility of requests, special provisions, system of management of persons, files and cases, protection of personal data), Chapter 2 concerns the applicable law, Chapter 3 aims to legislate on procedure in Switzerland (authorities and powers, which are of interest here, and legal protection), while Chapter 4 concerns procedure between States.
8 Chapter 3, which contains two sections, describes the authorities competent in Switzerland for international mutual assistance in criminal matters, lists their powers (section 1), and provides for legal protection for the person prosecuted and other persons affected by a mutual assistance measure, or the injured party who assists investigations (section 2).
9 Article 16 EIMP, which concerns the cantonal authorities, precedes article 17, which sets out the powers of the federal authorities. It is clear from this system that ordinary mutual assistance proceedings are primarily the responsibility of the cantonal authorities.
10For extradition proceedings, however, the jurisdiction of the cantonal authorities is collaborative, with the FOJ dealing exclusively with these before forwarding them to the competent cantonal authorities for execution.
11 For minor mutual assistance, delegated criminal prosecution and the enforcement of decisions, the cantonal authorities are competent, under the supervision of the Confederation when the EIMP is applicable. Cantonal competence is therefore provided for ab initio for other acts of mutual assistance. The FOJ has residual jurisdiction, notably for requests seeking a guarantee of reciprocity (art. 17 para. 3 EIMP) or when a treaty concluded by Switzerland establishes the FOJ's jurisdiction as a central authority, as is the case with the United States of America (art. This is the case with the United States of America (art. 28 of the Treaty between the Swiss Confederation and the United States of America on Mutual Assistance in Criminal Matters, signed on May 25, 1973) and - for mutual assistance requests relating to organized crime, corruption and other serious crimes - Italy (art. XVIII of the Agreement between Switzerland and Italy to supplement the European Convention on Mutual Assistance in Criminal Matters of April 20, 1959, and to facilitate its application, signed on September 10, 1998). The FOJ also has an operational function in urgent cases, where it is competent to order provisional measures (art. 18 para. 2 EIMP).
IV. Commentary on the article
A. General
12 Article 16 paragraph 1 first sentence EIMP provides, in accordance with article 17 paragraph 2 EIMP, that the cantonal authorities collaborate in the execution of extradition proceedings for which the FOJ is competent. It is therefore understood that the FOJ is the competent authority for extradition requests. In support of this federal competence, the cantonal authorities execute the measures ordered by the FOJ. These measures are then considered to be taken in execution of the applicable federal law. In particular, the cantonal authorities are - on the orders of the FOJ - responsible for detaining the person concerned by the extradition request, conducting hearings and potentially, at the end of the extradition procedure, effecting the surrender of the person concerned to the requesting state.
13 Article 16 paragraph 1 sentence 2 EIMP grants the cantonal authorities primary jurisdiction for the execution of requests concerning other acts of mutual assistance. In such cases, the FOJ has a delegating and coordinating role vis-à-vis the cantonal authorities. In certain cases, however, where a bilateral treaty so provides, the FOJ is granted primary jurisdiction to execute requests for mutual assistance (see chapter IV B 2 below).
14 Article 16, paragraph 1, third sentence of the EIMP states that the cantons are under the supervision of the Confederation when this law is applicable. The FOJ is therefore responsible for overseeing the application of the EIMP, and therefore has the right to challenge cantonal and federal decisions (art. 25 EIMP).
15 As previously indicated (see chapter II above), article 16 paragraph 2 EIMP was repealed on January 1, 2011, following the entry into force of article 54 paragraph 1 CPP, rendering this paragraph obsolete.
B. Division of powers between the FOJ and cantonal and federal authorities
1. With regard to extradition
a. Foreign extradition requests
16 The FOJ is responsible for receiving extradition requests, i.e. the surrender to the requesting state - for the purposes of criminal prosecution or enforcement of a custodial sentence - of persons to the state which has jurisdiction over the offence and is requesting extradition (art. 32 EIMP).
17 The FOJ decides whether and under what conditions to grant the request (art. 43 EIMP), entrusts the cantonal or federal authorities with any measures to be taken (art. 44 et seq. EIMP) and, in the first instance, decides on extradition (art. 55 EIMP).
18 The cantons assist this authority in executing the extradition request, by carrying out provisional measures (art. 44 ff EIMP), making arrests and seizures (art. 47 ff EIMP) and granting the accused the right to be heard (art. 52 ff EIMP). The competence of the cantons can thus be described as operational, as the FOJ does not have the necessary means to execute extradition requests itself.
b. Swiss extradition requests
19 The FOJ submits search requests issued by Switzerland at the request of a cantonal or federal prosecuting or enforcement authority, and forwards them via the Schengen Information System (SIS) or Interpol (art. 30 para. 2 EIMP). Where the person's place of residence is known or presumed, the FOJ sends the search request directly to the state of residence.
20 Once the wanted person has been arrested, the FOJ submits the formal extradition request, which, depending on the treaty provisions, contains details of the wanted person, an enforceable arrest warrant or judgment, the applicable penal provisions, any evidence (a requirement, in general, for requests addressed to so-called Common Law states) and, if necessary, a translation of the documents, to the requested state within the stipulated period.
21 In particular, the FOJ may refuse to transmit an extradition request if the seriousness of the offence does not justify the procedure (art. 30 para. 4 EIMP). The cantonal authority may then appeal against the FOJ's decision not to submit a request (art. 25 al. 3 2nd phr. EIMP).
2. Other cases of mutual assistance
22 In other cases of mutual assistance, the procedure is primarily the responsibility of the cantonal authorities, who carry out a preliminary examination of the request (art. 80 EIMP) and execute it (art. 80a ff EIMP). It should be noted that the provisions of the EIMP remain applicable when Switzerland is bound to the requesting state by a mutual assistance treaty, unless the treaty contains specific provisions which would take precedence over those of the EIMP (for example, art. 9 2nd P.A. CEEJ, which governs hearings by videoconference).
23 When an international agreement, whether bilateral or multilateral, allows the judicial authorities of the requesting State to send their request for mutual assistance directly to the judicial authorities of the requested State, the competent cantonal or federal judicial authority receives the foreign request for mutual assistance directly and, once the request has been executed, forwards the execution documents to the requesting State, specifying the reservation of habitual speciality (art. 78 al. 1 EIMP). Art. 4 para. 1 2nd P.A. ECCJ, which replaces art. 15 ECCJ, authorizes direct transmission between judicial authorities, without having to go through the Ministry of Justice of the requested party, i.e. the FOJ in the case of Switzerland. This exception does not, however, apply to requests for the temporary transfer of detained persons within the meaning of art. 11 ECCJ and art. 13 2nd P.A. ECCJ, which must in all cases be addressed by the Ministry of Justice of the requesting State to the Ministry of Justice of the requested State and returned via the same channel.
24 In the absence of an agreement providing for direct transmission to the competent authority, or in particular when the requesting State does not know the competent judicial authority, the FOJ receives foreign requests (art. 27 para. 2 and 78 para. 1 EIMP in fine). In such cases, the FOJ makes a summary examination of the formal admissibility of the request, and forwards it to the competent cantonal or federal authority for execution, unless the request is manifestly inadmissible (art. 78 al. 2 EIMP). In the case of summary examination and delegation to the enforcement authority, the FOJ has a wide margin of discretion, and its decision to delegate to the enforcement authority cannot be challenged separately (art. 78 para. 4 EIMP and art. 14 OEIMP).
25 In urgent cases, the FOJ is empowered to order the necessary provisional measures (art. 18 para. 2 EIMP).
26 Cantonal jurisdiction is determined primarily by the place where the enforcement measures are to be carried out. For example, cantonal authorities are competent to conduct a hearing of a person domiciled on their territory, or to search the premises of a company headquartered in their canton. The FOJ may also decide to entrust the execution of the request for mutual assistance to the canton which is conducting a national procedure linked to the request for mutual assistance, or to the authority which would be competent if the offence had been committed in Switzerland (art. 17 para. 4 and 79 para. 2 EIMP). In principle, the latter case concerns offences that are subject to federal jurisprudence (art. 23 CPP) and, consequently, to the jurisdiction of the Federal Public Prosecutor's Office (Ministère public de la Confédération).
27 If the execution of the request for mutual assistance requires investigations in several cantons, or if it also concerns a federal authority, the FOJ may designate a lead canton (art. 79 para. 1 EIMP). In addition, the FOJ may itself decide on the execution of mutual assistance if the competent cantonal authority is unable to reach a decision within a reasonable time, or in complex cases or cases of particular importance (art. 79a para. 1 EIMP).
28 The competent cantonal authority is the Public Prosecutor's Office (art. 55 para. 1 CCP), or even the court during proceedings (art. 55 al. 2 CCP). The cantonal law implementing the CCP specifies which Public Prosecutor's Office has jurisdiction (e.g. the central Public Prosecutor's Office in the canton of Vaud is competent to receive and execute letters rogatory from an authority outside the canton, or to submit an extradition request to the FOJ).
29 The procedure for federal administrative authorities is governed by analogy with the AP, while cantonal authorities apply cantonal administrative law by analogy (art. 12 para. 1 EIMP). Procedural acts are governed by the CPP (art. 12 para. 1 EIMP), supplemented by the LOAP (art. 1 para. 1 LOAP via art. 12 para. 1 EIMP).
30 The FOJ is responsible for supervising the cantonal authorities (art. 16 EIMP). In this role, the FOJ may decide to challenge cantonal decisions before the Complaints Court of the Federal Criminal Court (art. 25 para. 1 and 3 and 80h let. a EIMP). To enable the FOJ to exercise its supervisory role, cantonal and federal decisions on international mutual assistance in criminal matters, as well as those of the Complaints Court of the Federal Criminal Court, must be communicated to it (art. 5 OEIMP). Furthermore, in the event of a delay in proceedings or refusal to take a decision, the FOJ may question the cantonal authority and request information on the status of the proceedings, the reasons for any delay and the measures envisaged (art. 17a para. 2 EIMP). In the event of an unjustified refusal, the FOJ may intervene with the competent supervisory authority (art. 17a para. 2 EIMP) or, in the event of a refusal to take a decision or if the authority is slow in taking a decision, lodge an appeal against the absence of a decision, which is treated as a negative decision (art. 17a para. 3 EIMP). The FOJ may also decide to take a decision itself on the execution of the request for legal assistance (art. 79a para. 3 let. c EIMP), at the expense of the canton concerned (art. 13 para. 1bis OEIMP).
31 For mutual legal assistance with the USA, the FOJ is always competent and acts in its capacity as Central Office USA (art. 28 para. 1 TEJUS and art. 1 ch. 3 and 5 LTEJUS). The cantonal and federal prosecution authorities assist the FOJ in executing these requests for mutual assistance.
3. Delegation of criminal prosecution
a. To Switzerland
32 Where extradition is ruled out, where the person prosecuted is liable in Switzerland for other, more serious offences, and where the requesting state gives a guarantee that it will not prosecute the person for the same offence once he or she has been acquitted or punished in Switzerland, Switzerland may take over the prosecution of an offence committed abroad (art. 85 EIMP). This option "meets the objectives of the proper administration of justice and better social rehabilitation", and provides an alternative to extradition.
33 Such a request must be addressed to the FOJ, which decides, in matters of cantonal criminal jurisdiction, after consulting the prosecuting authority, to accept the foreign request and forward the file to the competent prosecuting authority (art. 91 para. 1 EIMP). This decision does not oblige the authority to initiate criminal proceedings (art. 91 para. 3 EIMP), nor to convict the person prosecuted. Subsequently, the competent authority is obliged to inform the Federal Office of its decision whether or not to act on the request for delegation, of any sanction imposed and its enforcement, and of any other decision taken, and the Federal Office informs the requesting State accordingly (art. 36 para. 1 letters a to e OEIMP).
34 Where jurisdiction lies with the federal criminal jurisdiction, the FOJ decides in agreement with the Attorney General of the Confederation whether to accept the requests (art. 4 para. 4 OEIMP). These provisions do not apply when the offence is subject to Swiss jurisdiction under another provision.
b. To the foreign state
35 At Switzerland's request, a foreign state may be asked to assume criminal prosecution of an offence under Swiss jurisdiction, if its legislation permits the prosecution and judicial punishment of this offence, in two cases: a) if the person prosecuted resides in this state, extradition to Switzerland being inappropriate or excluded, or b) if the person prosecuted is extradited to this state and the transfer of criminal prosecution makes it possible to expect better social rehabilitation (art. 88 EIMP).
36 The request to delegate criminal prosecution is submitted by the competent Swiss authority, normally the competent public prosecutor's office, to the FOJ, which then forwards it to the foreign state (art. 30 para. 2 EIMP). This does not apply to requests concerning Germany, Austria and Italy, countries with which Switzerland has concluded bilateral agreements enabling requests for the delegation of criminal prosecution to be sent directly to the competent prosecuting authorities.
37 During the delegation procedure, the FOJ is responsible for deciding what happens to the escrow, even if the request to delegate criminal prosecution is submitted directly to the foreign authority, without going through the FOJ.
4. Enforcement of foreign criminal judgments
38 The enforcement of foreign criminal judgments involves the execution of a final foreign criminal judgment - i.e. a sentence or a measure - by the requested state.
39 Many states do not extradite their own nationals, so it is possible for the requesting state to delegate enforcement of the penalty (sentence or measure) to the country of origin, in order to prevent persons convicted under a final and enforceable decision from evading punishment. In this case, a request for enforcement of the criminal decision must be submitted to the country of origin.
a. By Switzerland
40 The FOJ is responsible for deciding on the request, after consulting the enforcement authority, and in the event of acceptance, forwards the request to the enforcement authority. The exequatur procedure is then governed by the Code of Criminal Procedure.
b. By a foreign state
41 A criminal judgment handed down in Switzerland may be delegated for enforcement by a foreign state, subject to the conditions set out in articles 100 to 102 EIMP. The FOJ is competent to decide on delegation abroad, at the request of the cantonal or federal authority (art. 30 para. 2 EIMP).
The author has written this contribution in a personal capacity. The assessments and opinions presented are her own and are not binding on the Federal Office of Justice.
Further reading
Moreillon Laurent (édit.), Commentaire romand, Entraide internationale en matière pénale, Bâle 2004.
Donatsch Andreas/Heimgartner Stefan/Meyer Frank/Simonek Madeleine, Internationale Rechtshilfe, Zurich 2015.
Bibliography
Bühlmann Doris, Kommentierung zu Art. 16 IRSG, in: Niggli Marcel Alexander/Heimgartner Stefan (édit.), Basler Kommentar, Internationales Strafrecht, IRSG, GwÜ, Bâle 2015.
Chatelain Roland, Problèmes relatifs à l'application de l'EIMP, RPS 1992 p. 170 ss.
Hurtado Pozo Jos, Droit pénal, Partie générale, Genève 2008.
Ludwiczak Glassey Maria, Entraide judiciaire internationale en matière pénale, Bâle 2018.
Zimmermann Robert, La coopération judiciaire internationale en matière pénale, 5e éd., Berne 2019.