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- 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
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- 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
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- 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
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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
- 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
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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 historical overview of the origin of the standard
- II. Changes to the standard
- III. The article in context
- IV. Commentary on the article
- Recommended further reading
- Bibliography
I. General historical overview of the origin of the standard
1 As can be seen from the commentary on Article 16 of the IMAC, the division of competences prior to the entry into force of the IMAC was unsatisfactory. The aim of the draft IMAC was to introduce simple regulations that would enable the requesting state's request to be processed rapidly, without unacceptable delays. According to this draft, given that the execution of a request for mutual assistance could both raise questions as to "the application of the code of criminal procedure", as the rulings and decisions subject to appeal are "substantially similar in nature to official acts performed by the investigating judge", and fall under administrative law when it comes to applying "the very provisions of the law on mutual assistance", jurisdiction was divided between the FDJP and the Police Division. The Police Division was given responsibility for all matters relating to extradition. For other acts of mutual assistance, competence was assigned, for the most part, to "the authorities responsible for criminal prosecution". As a result, the cantons assume "most of the responsibilities which, in principle, are assigned to the Police Division". The Police Division has nevertheless been granted the right to use, "in its capacity as supervisory authority, the remedies provided for in cantonal legislation". In view of this division of powers, article 17 IMAC, which concerns the powers of the federal authorities, follows article 16 IMAC, which concerns the cantonal authorities.
2 Article 14 al. 1 of the draft, which subsequently became article 17 al. 1 IMAC, conferred exclusive decision-making powers on the DFJP in the cases provided for in article 1 al. 2 of the draft, which has since become article 1a IMAC.
3 Letters a and b of article 14 al. 2 of the draft, subsequently incorporated into article 17 al. 2 IMAC, conferred exclusive decision-making powers on the Police Division to rule on the existence of grounds for inadmissibility and the rejection of an application, depending on the seriousness of the offence.
4 Letters c, e and f of article 14 para. 2 of the draft, subsequently incorporated into article 17 para. 3 IMAC, conferred decision-making powers on the Police Division in the following cases:
request for reciprocity insurance,
choice of procedure and
admissibility of a Swiss application.
5 It is also clear from the draft IMAC that Article 13 para. 1 and Article 14 para. 2 let. d, subsequently incorporated into Article 17 para. 4 IMAC, governed the transfer of powers from the cantonal to the federal authorities for the execution of mutual assistance proceedings in Switzerland. This transfer of jurisdiction was based on a decision by the Police Division, which could choose to "entrust the partial or total execution of a procedure to a federal authority when the prosecution or punishment of the offence would be the responsibility of that authority if committed in Switzerland". The second paragraph of article 13 para. 2 also empowered the "joint superior authority" to rule on differences between federal authorities.
6 Like Article 16 IMAC, the wording of Article 17 IMAC 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).
7 It should be pointed out that in 1979, even before the entry into force of the IMAC in 1981, the Police Division became the Federal Office of Police, commonly referred to as the "Federal Office" in the text of the IMAC. In the early 2000s, the powers of the Federal Office of Police with regard to mutual assistance were reassigned to the Federal Office of Justice (hereinafter "FOJ"), but the legal text of the IMAC remained unchanged. It was only at the beginning of 2024, in the context of the amendment of the Swiss Criminal Procedure Code decided on June 17, 2022, that the terms "Federal Office" used in the various provisions of the IMAC - including art. 17 IMAC - were effectively replaced by "FOJ".
II. Changes to the standard
A. First paragraph
8 The first paragraph of article 17 IMAC was amended in 1996, following the repeal of the 2nd paragraph of article 1, which had been included in article 1a IMAC. The amendment came into force on February 1, 1997.
9 This amendment was in response to the legislator's wish to "better separate the purpose of international cooperation from its limits". According to the Message concerning the revision of the Federal Act on International Mutual Assistance in Criminal Matters and the Federal Act on the Treaty with the United States of America on Mutual Assistance in Criminal Matters, as well as a draft Federal Decree concerning a reservation to the European Convention on Mutual Assistance in Criminal Matters of March 29, 1995, The aim of this revision was to remedy the weaknesses of the IMAC "in terms of the execution of requests for mutual assistance, particularly with regard to the length of the execution procedure, which in some particularly high-profile cases (Pemex, Marcos) has proved excessive". The means employed by the Federal Council and the FDJP to simplify and accelerate the procedure, by way of ordinances or interventions, or by the jurisprudence of the Federal Court, have proved insufficient, necessitating a more complete and extensive revision of the law.
10 In 2001, as part of the total revision of the federal judicial system, article 17 para. 1 IMAC was again amended, with the same aim as the amendment of March 29, 1995, "namely to speed up proceedings". This second amendment, which came into force on January 1, 2007, introduced a second sentence setting a deadline of 30 days following communication of the decision to close the procedure, within which to request a decision from the Department. This time limit was intended to "ensure that the procedure referred to in Article 1a IMAC runs in parallel with the appeal procedure", and thus prevent persons with party status from blocking the final mutual assistance decision by invoking Article 1a IMAC. Indeed, as the Message concerning the total revision of the Federal Judiciary of February 28, 2001 shows, in practice, the instrument of article 1a IMAC was used "with the aim of preventing the authorized delivery of mutual assistance documents", after ordinary legal remedies had been exhausted without success. This result is the consequence of the fact that the procedure under article 1a IMAC allows mutual legal assistance to be refused "admissible in itself" if such cooperation could harm Switzerland's sovereignty, security, public order or other essential interests.
B. Second paragraph
11 Paragraph 2, which concerns the powers of the FOJ, has not been amended since the IMAC came into force, subject to the replacement of the words "Federal Office" by "FOJ" on January 1, 2024.
C. Third paragraph
12 Paragraph 3 was the subject of a single amendment when the Federal Act on International Mutual Assistance in Criminal Matters and the Federal Act on the Treaty with the United States of America on Mutual Assistance in Criminal Matters were revised, as well as a draft Federal Decree concerning a reservation to the European Convention on Mutual Assistance in Criminal Matters of March 29, 1995.
13 This amendment, which came into force on February 1, 1997, concerned letter b of this paragraph, which confers jurisdiction on the FOJ to choose the appropriate procedure in cases covered by article 19 IMAC.
D. Fourth paragraph
14 Paragraph 4 - which concerns the execution, in whole or in part, of a request for mutual assistance by a federal authority which would be competent if the offence had been committed in Switzerland - has not been amended since the IMAC came into force.
E. Fifth paragraph
15 This last paragraph was introduced when the IMAC was amended on October 4, 1996, and came into force on February 1, 1997.
16 It empowers the FOJ to decide on the admissibility of mutual assistance and its execution in the cases provided for in article 79a IMAC, which was also introduced at the time of this revision and came into force on February 1, 1997. The introduction of this paragraph and of article 79a IMAC was intended to increase the powers of the FOJ in certain situations where its competence would facilitate the granting of mutual assistance or its execution.
17 It should be noted that neither this paragraph nor article 79a IMAC were included in the Message concerning the revision of the Federal Act on International Mutual Assistance in Criminal Matters and the Federal Act on the Treaty with the United States of America on Mutual Assistance in Criminal Matters, as well as a draft Federal Decree concerning a reservation to the European Convention on Mutual Assistance in Criminal Matters of March 29, 1995. These were added during the parliamentary debates.
III. The article in context
18 Article 17 IMAC is located in the first part of the law, which deals with the general provisions of the law.
19 The article is placed in Chapter 3, Section 1, which governs procedure in Switzerland and defines the competent authorities for judicial and international mutual assistance in criminal matters and the powers of these authorities.
20 As noted in Chapter 1, Article 17 IMAC, which concerns the powers of the federal authorities, follows Article 16 IMAC, which concerns the cantonal authorities. It is clear from this system that the ordinary mutual assistance procedure is primarily the responsibility of the cantonal authorities. There are, however, a few exceptions to this principle, notably in the case of extradition proceedings - which fall within the remit of the FOJ - or, in the case of minor mutual assistance, when a treaty concluded by Switzerland establishes the jurisdiction of the FOJ as the 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, concluded on May 25, 1973) and - for requests for mutual assistance in cases of 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, concluded on September 10, 1998). The federal authorities therefore have what is termed residual jurisdiction, and article 17 of the IMAC defines this.
IV. Commentary on the article
A. First paragraph
21 This first paragraph gives the FDJP the power to take decisions in cases covered by Article 1a IMAC. More specifically, the FDJP is competent to assess whether the mutual legal assistance granted is likely to prejudice the sovereignty, security, public order or other essential interests of Switzerland, and may, where appropriate, refuse to execute mutual legal assistance on these grounds.
22 The notion of "other essential interests" refers to other interests decisive for the existence of the country as a whole. Mere harm to individual economic agents is not sufficient to constitute an infringement of essential interests: execution must be likely to cause harm to the Swiss economy as a whole (e.g., risk of a general embargo on Swiss products, or systematic exclusion of Swiss companies from public contracts). Article 1a IMAC therefore limits Switzerland's scope for cooperation when the execution of the request, "otherwise well-founded", is likely to harm Swiss interests.
23 The scope of this article is extremely limited as far as extradition is concerned. Indeed, where a treaty on mutual legal assistance exists with the requesting State, the grounds for refusal set out in Article 1a IMAC only apply if the treaty in question contains a provision equivalent to this Article, which is rarely the case in the field of extradition. In the field of minor mutual assistance, this ground for refusal is provided for in mutual assistance agreements and bilateral treaties.
24 The FDJP's examination must be limited to "the question of whether sovereignty, security, public order or other essential interests of Switzerland under Article 1a IMAC are affected is of a purely political nature and must be resolved independently of proceedings before the Federal Supreme Court".
25 The right to request a decision from the FDJP is reserved exclusively for Swiss nationals and foreigners domiciled in Switzerland, as well as for companies with their head office or a permanent establishment in Switzerland.
26 In order to avoid this means being used to delay the procedure and prevent the execution of a final decision that has entered into force, a period of 30 days following written communication of the closing decision is allowed to the person with standing (art. 21 al. 3 and 80h let. b IMAC) to request a decision from the FDJP. The 30-day time limit begins to run as soon as the closure decision is communicated in writing (and not as soon as it becomes final), and is intended to ensure that the procedure provided for in article 1a IMAC "runs in parallel with the appeal procedure". After the 30-day deadline, the application is inadmissible. It is interesting to note, however, that the Federal Council, in its capacity as the appeal authority of the FDJP, "may of its own motion and at any time refuse a request for mutual assistance if it considers that execution of the request is likely to prejudice the sovereignty, security, public order or other essential interests of Switzerland".
27 The submission of a request based on article 1a IMAC filed after an enforceable decision does not suspend the enforcement of that decision (art. 21 para. 4 IMAC); it is then up to the applicant to request provisional measures.
28 The jurisdiction of the FDJP demonstrates the purely political nature of this decision. For the same reason, an administrative appeal has been lodged against this decision with the Federal Council (art. 26 IMAC).
29 Some academics have strongly criticized this dual appeal body, arguing that it is not an appeal body because the FDJP reports directly to the Federal Council. We do not share this criticism, for two reasons. Firstly, we believe that in administrative procedure, a double appeal body is not a general procedural guarantee or a constitutional right of citizens. Secondly, we consider that the double instance is confused, at least in part, with the right to be heard. In this case, the dual appeal body - the FDJP and the Federal Council - enables the applicant to express himself several times, before different authorities, and to put forward his arguments and means of proof. The applicant's right to be heard is therefore respected. The fact that the FDJP reports to the Federal Council does not mean that the arguments put forward by applicants are not examined independently and impartially by each authority.
30 Another section of the doctrine criticizes this paragraph because of the possibility of requesting, in parallel, an appeal against the admissibility of legal assistance, available under article 80e IMAC before the Complaints Court of the TPF (art. 37 al. 2 let. a LOAP). In order to avoid what she describes as "duplication of legal remedies", she proposes that the judge alone should weigh up all interests, including those referred to in art. 1a IMAC. We do not share this view either. It is true that the legal system means that, in parallel, two separate authorities are competent to render decisions concerning the same request for mutual assistance. However, these two authorities, once seized, do not carry out the same analysis: the FDJP and the Federal Council are only competent to determine whether Switzerland's essential interests make it impossible to grant mutual assistance. In contrast, the TPF and TF are not competent to examine this question, but only to determine whether mutual assistance can be granted on the basis of the other provisions of the IMAC. In other words, and as emphasized on numerous occasions in the decisions handed down by the Federal Council in connection with article 1a IMAC, these two channels "do not examine the same aspects of the problem". The eminently political nature of the issues at stake under art. 1a IMAC makes it essential for the DFJP and the Federal Council to exercise control, as they are in a better position to define any political limits to the granting of mutual assistance than a judicial authority. We would also point out that this distribution of powers is similar to the power of these authorities to authorize the prosecuting authorities to prosecute offences of a political nature (art. 302 CP and 66 LOAP), where the Federal Council can only refuse authorization in order to safeguard the country's overriding interests (art. 66 para. 1 LOAP). Finally, we would like to point out that, although the parallelism of legal remedies can sometimes prove problematic in practice, case law has shown that the two remedies coexist satisfactorily.
B. Second paragraph
31 The second paragraph reiterates the division of powers between cantonal and federal authorities in matters of international legal assistance (art. 16 para. 1 IMAC), specifying the powers of the FOJ.
32 More specifically, this paragraph stipulates that the FOJ is responsible for receiving requests from abroad and submitting those from Switzerland, processing extradition requests and forwarding requests concerning other acts of mutual assistance, delegated criminal prosecution and the enforcement of decisions to the competent cantonal and federal authorities for examination, unless they are manifestly inadmissible.
33 As our commentary on article 16 IMAC discusses in detail the division of powers between the FOJ and the cantonal and federal authorities, we will only examine below the particulars concerning the FOJ's powers, which can be further elaborated.
1. Receiving requests for mutual assistance from abroad
34 Subject to direct transmission by the requesting authority to the competent federal or cantonal enforcement authority, the FOJ is competent to receive requests for mutual assistance from abroad.
35 The direct channel between judicial authorities depends, first and foremost, on "the degree of proximity of legal systems and geographical distance". This channel is established by several instruments: the supplementary agreements to the ECCJ, the ECCJ IIAP, the CISA and the AAF. It is also admissible in cases of urgency. In principle, for European countries, foreign judicial authorities can send their request directly to the requested cantonal or federal judicial authority. It should be noted, however, that the United Kingdom has entered a reservation to article 4 of the PAII CEEJ. Requests from this country must therefore be addressed to the FOJ, and vice versa.
36 Where the direct route is not possible or practical, or where the FOJ has jurisdiction, the FOJ, in its capacity as the Swiss Central Office, receives foreign applications. This route, also known as the ministerial route, is known as the standard route.
37 In the absence of a treaty with Switzerland instituting such a channel, the diplomatic channel must be used. The FOJ then receives the request through diplomatic channels from the foreign authority.
38 On receipt of a foreign application, the FOJ carries out a summary examination of the formal admissibility of the application before delegating it - unless it is manifestly inadmissible - to the competent cantonal or federal authority (art. 78 para. 2 IMAC). The FOJ also has the option of returning the application to the requesting state for amendment or completion (art. 78 al. 3 IMAC). In practice, this option is only used if there is a serious defect in the application. In fact, the competent cantonal or federal authority responsible for executing the application is considered to be in the best position to request the necessary additions.
39 Receipt and transmission are not subject to appeal (art. 78 al. 4 IMAC). Similarly, the FOJ does not issue a prior formal decision on the question of the manifest inadmissibility of the foreign application, nor can such a decision be provoked.
40 In urgent cases, the FOJ is also empowered to order provisional measures itself, if necessary (art. 18 para. 2 IMAC).
2. Swiss requests for mutual assistance abroad
41 When Swiss requests are submitted abroad, the FOJ checks whether they are admissible (art. 17 para. 2 and 3 let. c in conjunction with art. 30 para. 1 IMAC).
42 In practice, this examination is limited to checking whether the statement of facts corresponds to the classification of the offence referred to in the application and, in general, whether it is compatible with the IMAC. In particular, the principle of reciprocity (art. 8 IMAC) must be respected, which means that a Swiss authority may not request measures which cannot be ordered by itself in execution of a foreign request. The same applies if the offence referred to in the request would not give rise to mutual assistance on the part of Switzerland under article 3 IMAC.
43 With regard to the channel for transmitting requests from Switzerland to other countries, the explanations given in the previous chapter apply mutatis mutandis. Accordingly, the FOJ will transmit the request either via the ministerial channel or the diplomatic channel, the direct channel being reserved for the judicial authorities.
44 For the rest, reference is made to our considerations on article 16 IMAC, which apply mutatis mutandis.
3. Processing extradition requests
a. Forwarding Swiss extradition requests
45 Before transmitting a formal extradition request, the FOJ is competent, at the request of the cantonal or federal prosecution or enforcement authority, to transmit requests for tracing persons.
46 The search request must be sent in writing by the Swiss authority to the Extradition Unit of the FOJ. In urgent cases, advance electronic transmission is possible. In urgent cases outside office hours, the announcement can be made via Fedpol's Operations Center. The content to be included in such a request is detailed in the Aide-mémoire pour les recherches internationales de personnes en vue d'extradition.
47 Search requests are then forwarded by the FOJ either directly to the person's country of residence, where the place of residence is known or presumed, or via the Schengen Information System (SIS) platform for member countries, or via Interpol.
48 Once the wanted person has been arrested, the FOJ is responsible for submitting the extradition request abroad within the stipulated deadline. To this end, it advises the competent Swiss authority on the preparation of the necessary documents.
b. Receipt of foreign extradition requests
49 With regard to the receipt of foreign extradition requests, reference is made to our considerations under article 16 IMAC, which apply mutatis mutandis.
4. Forwarding foreign requests for mutual assistance to the competent Swiss authorities
50 Except where the direct route is provided for (and followed), the FOJ receives foreign requests for mutual assistance (requests concerning other acts of mutual assistance) and, after a summary examination of admissibility, forwards them for execution to the competent cantonal and federal prosecution authorities.
5. Criminal prosecution by delegation
51 With regard to the delegation of criminal prosecution, reference is made to our considerations under article 16 IMAC, which apply mutatis mutandis.
6. Enforcement of decisions
52 With regard to the enforcement of criminal decisions, reference is made to our considerations under article 16 IMAC, which apply mutatis mutandis.
C. Third paragraph
53 The third paragraph concerns the FOJ's specific powers with regard to :
a. requesting a reciprocity guarantee (art. 8 para. 1),
b. choice of the appropriate procedure (art. 19) and
c. admissibility of a Swiss application (art. 30 para. 1).
54 Until the revision of June 17, 2005, FOJ decisions within the meaning of this paragraph were subject to administrative appeal to the Federal Department, which gave the final ruling. With effect from January 1, 2007, this legal remedy has been replaced by an appeal to the TPF, which decides in a single instance.
1. Request for a reciprocity guarantee
55 The first letter of paragraph 3 grants the FOJ the power to request a guarantee of reciprocity if circumstances so require.
56 This principle is "essentially a promise by the requesting State to the requested State to provide the same type of assistance in the future, should the requested State so request".
57 Treaties do not generally contain reciprocity guarantees, as their "very purpose is to establish international cooperation on a stable basis which dispenses with such declarations"; "the guarantee of reciprocity results from the treaty". In principle, therefore, a guarantee of reciprocity is only required in the absence of a treaty basis between the foreign state and Switzerland.
58 Article 8 al. 1 IMAC in fine recalls the FOJ's competence in this respect, "if circumstances so require", and specifies that, in principle, a request for mutual assistance will only be granted if the requesting state guarantees reciprocity (art. 8 al. 1 IMAC). Article 8 al. 2 IMAC mentions, in a non-exhaustive manner, the cases where a guarantee of reciprocity is not necessary, i.e. when it concerns a notification or when the execution of the request :
a. appears necessary because of the nature of the act committed or the need to combat certain forms of offence,
b. is likely to improve the situation of the accused or his chances of social rehabilitation, or
c. serves to elucidate an act directed against a Swiss citizen.
59 The FOJ has a wide margin of discretion in deciding whether to require a guarantee of reciprocity. According to jurisprudence, such a guarantee may be waived in particular for the suppression of organized crime and economic crime, as well as money laundering and corruption, in accordance with art. 8 para. 2 (a) IMAC.
60 Finally, it should be noted that, in accordance with the principle of trust, the FOJ is not required to verify the competence of the authority issuing the declaration of reciprocity, except in cases of manifest abuse.
2. Choice of appropriate procedure
61 According to the second letter of paragraph 3, the FOJ is also competent when an application is to be sent to a State which offers a choice between several procedures.
62 This letter of article 17 para. 3 refers to article 19 IMAC, according to which, if the person prosecuted is abroad and the law of the State to which the request is to be addressed offers a choice between several procedures, preference will be given to the one that appears to ensure the best social reclassification. This choice is made on the basis of :
a. the relations of the person sought with the requested state and with Switzerland,
b. the likelihood of expulsion from Switzerland,
c. the rational administration of justice, and d. an overall judgment in the case of multiple offences (art. 8 OEIMP).
3. Admissibility of a Swiss request
63 This third letter of paragraph 3 grants the FOJ the power to rule on the admissibility of a Swiss application.
64 The FOJ carries out this examination on the basis of article 30 para. 1 IMAC, and examines in particular whether Switzerland could comply with such a request if it were addressed to it (principle of reciprocity).
65 To enable the FOJ to carry out this examination, the requesting Swiss authority is required to forward the file to the FOJ (art. 7 EIMPO).
66 Any decision by the FOJ not to submit a request for mutual assistance may be appealed by the cantonal criminal authority (art. 25 para. 3 IMAC) to the TPF. According to case law, the federal criminal authority may also appeal against the FOJ's decision not to submit a request.
D. Fourth paragraph
67 Under the fourth paragraph, the FOJ, after having carried out a summary examination of the request and verified that it is not manifestly inadmissible (art. 17 para. 2 IMAC), may decide, in its capacity as central authority, to entrust the execution of all or part of a mutual assistance procedure to the federal authority that would be competent if the offence had been committed in Switzerland, subject to cases where the FOJ is itself competent to deal with the request for mutual assistance.
68 To this end, the FOJ refers to articles 22 et seq. of the Swiss Criminal Code, which delimit the powers of the Confederation and the Cantons, and in particular articles 23 and 24 of the Swiss Criminal Code, which determine federal jurisdiction for certain offences under the Swiss Criminal Code. As is clear from the word "may" article 17 para. 4 IMAC, as well as article 79 para. 2 IMAC, are potestative by their organizational nature, as they govern only the relationship between the FOJ and the enforcement authorities. Consequently, the FOJ is not bound by the provisions of the PPC when it decides to entrust the execution of a request to a federal or cantonal authority, and therefore has a wide margin of discretion. For this reason too, the FOJ's decision to delegate to the enforcement authority cannot be challenged separately (art. 14 OEIMP).
69 The FOJ's decision designating the authority in charge of the procedure is final; it cannot be challenged separately or in conjunction with the decision to close the procedure (art. 79 para. 4 IMAC).
E. Fifth paragraph
70 Under this final paragraph, the FOJ is competent to decide on the admissibility of mutual assistance and its execution in accordance with article 79a IMAC.
71 In accordance with article 79a IMAC, the FOJ "may rule on the admissibility of mutual assistance and delegate execution to a cantonal authority, or itself rule on execution:
a. when the request requires investigations in several cantons,
b. when the competent cantonal authority is unable to reach a decision within a reasonable time,
or c. in complex cases or cases of particular importance".
1. The request requires investigations in several cantons
72 Under article 79a let. a IMAC, the FOJ has the option of ruling on the admissibility of mutual assistance and delegating execution to a cantonal authority, or itself ruling on execution when the request requires investigations in several cantons.
73 In practice, this possibility has never been used by the FOJ, and this paragraph therefore remains a dead letter to this day.
2. Failure to reach a decision within a reasonable time
74 The FOJ may also decide to rule itself on the execution of the request if the competent cantonal authority is unable to reach a decision within a reasonable time.
75 In this respect, it should be noted that in matters of mutual legal assistance, the principle of promptness is enshrined in the following article, i.e. article 17a para. 1 IMAC, which requires the authority seized to take a decision "without delay". There is no time limit for making an order.
76 In the field of mutual legal assistance, it is complex to assess compliance with the principle of expedition, as this differs according to the complexity of the request for mutual assistance, for example, the mutual assistance measures required and any exchanges with the requesting authority that may be necessary to execute the request. According to the doctrine, "after a period of six months, however, the Federal Office must be concerned and ask for explanations". The appeal authority, for its part, must ensure that its decision is taken within "a maximum of three months".
77 In extradition cases, where the freedom of individuals is at stake, both the FOJ, as the executing authority, and the appeal authorities must decide within days or even weeks of the request.
78 It should be noted that the costs incurred by the Confederation pursuant to article 79a let. b IMAC are borne by the Canton (art. 13 al. 1bis OEIMP).
3. Complex or particularly important cases
79 Finally, the FOJ may decide to rule itself in complex or particularly important cases.
80 A case in point is the frigate affair, which was "part of a framework of Franco-Taiwanese public corruption" and in which the FOJ took over the mutual assistance procedure at the request of the Federal Examining Magistrate ("JIF") on the basis of article 79a let. c IMAC.
81 Another example is the Abacha case, a case of mutual assistance based on a criminal investigation by the Nigerian authorities into the misappropriation of public funds under the regime of former head of state Sani Abacha. In this case, the FOJ took over the mutual assistance procedure on the basis of this same provision, insofar as the proceedings concerned a "politically exposed person" or "PEP", in this case a former head of state.
Recommended further reading
Donatsch Andreas/Heimgartner Stefan/Meyer Frank/Simonek Madeleine, Internationale Rechtshilfe, Zurich 2015.
Glassey Maria, Entraide judiciaire internationale en matière pénale, Bâle 2018.
Ludwiczak Moreillon Laurent (édit.), Commentaire romand, Entraide internationale en matière pénale, Bâle 2004.
Bibliography
Bühlmann Doris, Kommentierung zu Art. 17 IRSG, in: Niggli Marcel Alexander/Heimgartner Stefan (édit.), Basler Kommentar, Internationales Strafrecht, IRSG, GwÜ, Bâle 2015.
Harrison Lisa, Kommentierung zu Art. 16 IRSG, in: Lukas Staffler/Maria Ludwiczak Glassey (Hrsg.), Onlinekommentar zum Bundesgesetz über internationale Rechtshilfe in Strafsachen – Version: 08.09.2023: https://onlinekommentar.ch/fr/kommentare/irsg16.
Nations Unies, Office des Nations Unies contre la Drogue et le Crime (ONUDC), Manuel sur l’entraide judiciaire et l’extradition, New York, 2012.
Zimmermann Robert, La coopération judiciaire internationale en matière pénale, 5e éd., Berne 2019.