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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. 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. Basis and genesis of art. 17a IMAC
- II. Obligation to act promptly (para. 1)
- III. Obligation to provide information and the FOJ's right to intervene (para. 2)
- IV. Equating a denial of justice with a negative decision (para. 3)
- Bibliography
I. Basis and genesis of art. 17a IMAC
1 Art. 17a IMAC bears the marginal note "obligation de célérité" ("Gebot der raschen Erledigung"; "obbligo di celerità"). With regard to international mutual assistance in criminal matters, it gives concrete form to the conventional and constitutional guarantee of the right to a fair trial, within the meaning of art. 6 § 1 ECHR, art. 14 ch. 3 UN Covenant II and art. 29 al. 1 of the Swiss Constitution, in its temporal dimension. These guarantees relate precisely to the right of every individual to have his or her case judged "within a reasonable time", and corollary to the prohibition of the denial of justice, according to the adage "Justice delayed is justice denied". In this way, the principle of celerity ("Beschleunigungsgebot"; "imperativo di celerità") is enshrined in the IMAC. Its counterpart in criminal procedure is art. 5 CPP.
2 Art. 17a IMAC was not included in the law as it originally came into force on January 1, 1983. It was only when it was revised on January 1, 1997 that the principle of expedition was included in the IMAC. Since then, no legislative amendments have been made to this provision.
3 From the point of view of the ratio legis, art. 17a IMAC has the dual purpose of emphasizing the urgency and importance of international mutual assistance. The principle of celerity thus plays a cardinal role in reconciling two imperatives of international cooperation: on the one hand, efficiency and rapidity in processing a request for mutual assistance, in order to provide the requesting state with the necessary information; on the other, respect for the rights of the persons concerned, given that mutual assistance constitutes a "considerable slowdown" made necessary by "the obstacle of state borders", which criminals are unaware of.
II. Obligation to act promptly (para. 1)
4 Under art. 17a para. 1 IMAC, the competent authority is required to process requests "expeditiously" and to take a decision "without delay". This provision expressly establishes an obligation to act promptly.
A. Concept and practical scope
5 Although art. 17a para. 1 IMAC stipulates that the authority must act "expeditiously" and take a decision "without delay", it does not set out a more precise framework, nor does it establish a "time limit" that cannot be exceeded. In this respect, during the preparatory work on the standard, the Federal Assembly decided not to introduce a time limit of 9 months, by which time the authority should, as a general rule, have taken a decision. The legislator considered that such a time limit could appear both too long for simple cases and too short for complex ones, so that the introduction of a legal time limit could have the opposite effect to that intended.
6 As the legislator deliberately refused to introduce a time limit in principle in art. 17a IMAC, case law holds that compliance with the principle of promptness must therefore be assessed in concreto. According to the Federal Court, an overall assessment of the situation must be made, taking into account all the circumstances of the case, and in particular the degree of complexity of the case, the conduct of the person subject to the procedure, and that of the competent foreign authorities. In the context of this examination, the authority cannot take advantage of a deficient organization or structural overload to justify the slowness of the procedure to be carried out, even if unavoidable "dead times" are admissible and cannot be blamed on it.
7 By way of example, the Federal Court found a serious breach of the principle of expedition in a case in which a period of 7 and a half years had elapsed between the request for mutual assistance (July 5, 2001) and the FOJ's decision (December 31, 2008), it being pointed out that the FOJ had remained inactive for more than 3 years after receiving the requested documents from the requesting authority. In another case, our High Court accepted the existence of a borderline case (Grenzfall) and denied a breach of the principle of expedition, while describing as unusually long the two-year period between the filing of an appeal to the Federal Criminal Court (September 28, 2020) and the latter's decision (November 11, 2022).
8 Generally speaking, in the context of extradition proceedings (art. 32 ff IMAC), the principle of expedition is considered to have been breached if the duration of detention for extradition purposes exceeds the custodial sentence that the extraditable person can expect. In the case of sequestration, the principle of expedition does not apply if the competent authority does not conduct the proceedings in accordance with art. 17a IMAC, bearing in mind, moreover, that in such a context the guarantee of property (art. 26 Cst.) also comes into play.
B. Competent authority
9 The obligation to act promptly is addressed to the "competent authority". This means that, on the one hand, the principle must be respected at all stages of the mutual assistance procedure and, on the other hand, it is binding on all Swiss authorities, whether cantonal or federal, whether in the first instance of enforcement or appeal. It follows that the FOJ is bound by this obligation, particularly in the field of extradition, as is the Federal Supreme Court.
10 On the other hand, art. 17a IMAC does not extend to the requesting authority, since any complaint that the latter has breached the principle of expedition must be lodged with the competent authorities in the foreign state. Switzerland is therefore not responsible for any breach of the principle of expedition by the requesting state in the criminal proceedings it is conducting. That said, such a violation may be raised in the context of Swiss mutual assistance proceedings, but only to a limited extent in relation to art. 2 IMAC if it comes into play. In addition, case law requires that the delay in criminal proceedings in the foreign state be contrary to public policy and thus characterize a serious violation of the right to a fair trial or a denial of justice.
C. Beneficiaries
11 In addressing the competent authority, the obligation to expedite has as its corollary a right on the part of the person affected by the mutual assistance measure addressed to Switzerland to have his or her case dealt with as quickly as possible, inasmuch as art. 17a IMAC is the normative translation of a constitutional and conventional human rights right (N. 1). In this context, it is imperative to remember that mutual legal assistance is part of criminal proceedings carried out abroad, in which the person concerned has the right to have his case tried within a reasonable time (art. 6 § 1 ECHR; art. 14 ch. 3 UN Covenant II). Mutual assistance must therefore be provided promptly.
12 That said, the principle of promptness has another facet, as its primary aim is to ensure that the requesting state's request for mutual assistance is executed swiftly. In its jurisprudence, the Swiss Federal Supreme Court has made it clear that the requesting authority does not have to suffer from a delay attributable solely to the Swiss executing authority. Referring to the case law on administrative assistance, which applies mutatis mutandis in the field of mutual assistance in criminal matters, the Federal Criminal Court also notes that the prompt conduct of proceedings "derives both from the Swiss commitment not to delay the exchange of information - so as not to undermine its effectiveness - and from domestic law, which provides that assistance procedures must be conducted with diligence". In this respect, the swift execution of decisions relating to international mutual assistance is in the public interest. In this context, the principle of celerity is complementary to that of good faith, as Switzerland must fulfill its international obligations to the best of its ability, particularly in terms of meeting deadlines. Thus, a delay in the proceedings, or even a serious breach of the principle of promptness, cannot be penalized by the rejection of the request for mutual assistance, as Switzerland remains obliged to grant the assistance requested, given that the mutual assistance procedure is designed to promote inter-state cooperation in criminal matters. If the proceedings are not terminated, the measures provided for in art. 17a para. 2 and art. 79a IMAC must be taken, as well as, where applicable, those relating to supervision or high-level supervision.
D. Implementation in legislation and case law
13 The principle of promptness is implemented in various ways in legislation and case law.
14 On the normative level first of all, the principle of celerity is essentially concretized through the short deadlines marking the rapidity with which the mutual assistance procedure must be carried out both before the authority of first instance and before the Federal Tribunal: thus, there are no judicial féries in the IMAC (art. 12 al. 2 and 46 al. 2 let. d LTF); moreover, there is no suspensive effect in the event of an appeal in principle (art. 21 al. 4 1st phr. IMAC and art. 103 al. 1 LTF), with the exception of the cases mentioned in art. 21 al. 4 2nd phr. IMAC and 103 al. 2 let. c LTF); in addition, the time limit for lodging an appeal with the Federal Supreme Court is 10 days (art. 102 al. 2 let. b LTF); lastly, the legislator has set a time limit of 15 days for our High Court to issue a ruling of inadmissibility, starting from the end of the exchange of written submissions between the parties. This time limit does not apply, however, when "the extradition proceedings concern a person whose asylum application has not yet been the subject of a final decision" (art. 107 al. 3 LTF).
15 Expressions of the principle of celerity in the law go beyond the mere question of deadlines. For example, the enforcement authority must "immediately" take the provisional measures required under art. 18 IMAC. In addition, it can resort to mutual assistance in the strict sense (art. 80c IMAC) and simplified extradition (art. 54 IMAC) if the person concerned consents. Furthermore, the absence of an "incidental" appeal in the context of the transmission of secret information or documents (art. 80e para. 1 IMAC) also contributes to the implementation of the principle of celerity through "the concentration of appeals at the end of the procedure", subject to the exceptions provided for in art. 80e para. 2 IMAC. Finally, Ludwiczak Glassey stresses that the provisions on dynamic mutual assistance (art. 18b and 80dbis ff IMAC) are "part of a general objective of celerity", insofar as these instruments "make it possible to speed up a certain (restricted) use of documents by the requesting authority before the end of the mutual assistance procedure", even if they do not speed up the procedure itself.
16 In case law, the principle of celerity has also been applied to the question of deadlines. For example, a time limit of 10 days applies to the party required to pay an advance on costs. It is also 10 days for the right of reply. However, subject to refusal, this right may be extended by 7 days.
17 What's more, case law holds that a suspension of proceedings by the Swiss authorities may be contrary to the principle of expeditiousness and therefore lead to a refusal of a request to this effect. Such a refusal is particularly justified when the request for suspension is based on an application lodged with the European Court of Human Rights, and is aimed at staying the decision of the enforcement authority until the Strasbourg court's decision, which is not expected in the near future. The same applies to the request for a stay pending the outcome of parallel proceedings in the requesting state. Furthermore, in cases where two parallel extradition requests are submitted to Switzerland by two States, the latter is not obliged to rule simultaneously on both requests, according to case law. Once the FOJ has determined, in the light of the legal criteria, which country should be given priority for extradition, it examines the admissibility of the request submitted by that state. If the request is accepted, it must be processed without delay, in accordance with the principle of expedition.
18 The principle of promptness also creates duties for the person affected by the mutual assistance measure. In particular, the latter must take part in the sorting of documents when a request for mutual assistance concerns the handing over of evidence, in the sense that he or she must specify to the executing authority which documents he or she considers should not be handed over, and on what grounds. Failure to comply with this obligation will result in the forfeiture of this right.
III. Obligation to provide information and the FOJ's right to intervene (para. 2)
19 One of the FOJ's duties is to ensure that the IMAC is properly applied, in accordance with art. 16 para. 1 sentence 3. IMAC. As part of this function, it must ensure compliance with the principle of promptness. The legislator has therefore stipulated in art. 17a al. 2 1st phr. IMAC that, at the FOJ's request, the executing authority must inform it of the status of the procedure, the reasons for any delay and the measures envisaged. In addition, the FOJ may intervene with the competent supervisory authority in the event of unjustified delay (art. 17a para. 2 sentence 2 IMAC). Where the FOJ is the competent authority, the Federal Council is the supervisory authority (art. 187 al. 1 let. a Cst. cum art. 8 al. 3 LOGA).
IV. Equating a denial of justice with a negative decision (para. 3)
20 According to art. 17a para. 3 IMAC, if "the competent authority, without reason, refuses to rule or delays in ruling, its attitude is then assimilated to a negative decision subject to appeal". In so doing, the legislator assimilates the denial of justice to a negative decision, and opens up an express avenue of appeal against it. The legislator's intention was to enable the FOJ, as supervisory authority and party to the proceedings, to intervene more effectively in the event of a denial of justice.
Bibliography
Dang Martine/Nguyen Minh Son, Art. 29, in : Martenet Vincent/Dubey Jacques (édit.), Constitution fédérale, Commentaire romand, Bâle 2021.
Harari Maurice/Corminboeuf Harari Corinne, Entraide internationale en matière pénale et transmission anticipée à l’État requérant, in : Eigenmann Antoine/Poncet Charles/Ziegler Bernard (édit.), Mélanges en l’honneur de Claude Rouiller, Bâle 2016, 77 ss.
Ludwiczak Maria, À la croisée des chemins du CPP et de l’EIMP – la problématique de l’accès au dossier, RPS 2015 p. 295 ss (cité : Ludwiczak, Chemins).
Ludwiczak Glassey Maria, Entraide judiciaire internationale en matière pénale, Précis de droit suisse, Bâle 2018 (cité : Ludwiczak Glassey, Précis).
Ludwiczak Glassey Maria/Moreillon Laurent, Petit commentaire de la Loi fédérale sur l’entraide internationale en matière pénale, Bâle 2024.
Moreillon Laurent (édit.), Entraide internationale en matière pénale, EIMP, TEJUS, LTEJUS, TEXUS, Commentaire romand, Bâle 2004.
Niggli Marcel Alexander/Heimgartner Stefan (édit.), Internationales Strafrecht, IRSG, GwÜ, Basler Kommentar, Bâle 2015.
Steinmann Gerold/Schindler Benjamin/Wyss Damian, Art. 29, in : Ehrenzeller Bernhard/Egli Patricia/Hettich Peter/Hongler Peter/Schindler Benjamin/Schmid Stefan G./Schweizer Rainer J. (édit.), St. Galler Kommentar, Bundesverfassung, 4ème éd., St.-Gall 2023.
Zimmermann Robert, La coopération judiciaire internationale en matière pénale, 5ème éd., Berne 2019.