-
- 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. History of origins
- II. Subject Matter of the Norm
- III. Decision-Makers
- IV. Scope of Application
- Bibliography
I. History of origins
1Art. 1a IMAC was inserted by the Federal Law of 4 October 1996 and has been in force unchanged since 1 February 1997. Previously, it was part of Art. 1 para. 2 IMAC, old version. The transfer to a separate article was made in order to clearly distinguish between the subject matter of the law and the limitation of international cooperation. Art. 1a IMAC is modeled on Art. 2 lit. b EUeR.
II. Subject Matter of the Norm
2Art. 1a IMAC stipulates that the application of the Mutual Assistance Act must take into account Switzerland's sovereign rights, security, public order or other essential interests. Art. 1a IMAC is not formulated as an actual ground for refusal, but represents a general restriction on intergovernmental cooperation. The provision is very broadly worded and, through the catch-all element of essential interests, sets a political reservation on the application of the Mutual Legal Assistance Act. It is intended to permit the refusal of cooperation, which is otherwise permissible, if mutual legal assistance could harm the interests mentioned in the provision. In terms of its content, Art. 1a IMAC complements the grounds for exclusion and refusal of Art. 2-5 IMAC. While the latter aim to protect the individual, Art. 1a focuses on the interests of Switzerland.
III. Decision-Makers
3In contrast to the grounds for exclusion and refusal, which are decided by the executive authorities and are subject to judicial review, the existence of the grounds for exclusion under Art. 1a IMAC is decided by the FDJP (Art. 17 para. 1 IMAC). The Department may intervene ex officio or be asked for a decision within 30 days of the final ruling being issued. This can be appealed to the Federal Council (Art. 26 IMAC). The person concerned may not raise any objections that can be challenged using the ordinary legal remedies. The examination of Art. 1a IMAC is limited to the question of whether the provision of mutual assistance, which is permissible in itself, should be refused because substantial Swiss interests would thereby be impaired.
4The proceedings before the FDJP have no suspensive effect on the mutual assistance proceedings. As a matter of practice, the FDJP shall decide on such appeals only after it has been legally clarified whether and to what extent the relevant treaty and statutory law otherwise permits mutual assistance. Only Swiss and foreign nationals domiciled in Switzerland and companies with registered offices or permanent establishments in Switzerland can invoke Art. 1a IMAC.
5In the first instance, therefore, the political authorities are to decide whether sovereign rights, security, public order or other essential interests of Switzerland stand in the way of cooperation - this is a purely political act. This does not mean, however, that the essential interests of Switzerland may not be taken into account by the enforcement authorities within the scope of their decision-making discretion. Thus, on several occasions, the Federal Supreme Court took into account Switzerland's reputation and, in the sense of a balancing exercise, contrasted this with possible reasons for refusing mutual assistance. For example, the Federal Supreme Court ruled that waiving the condition that Switzerland provide mutual assistance only if the foreign state makes a counter-law declaration could be in Switzerland's interest if it thereby prevented Switzerland from becoming a hoard of criminal assets.
6Art. 1a IMAC is rarely applied in practice.
IV. Scope of Application
7Article 1a IMAC is applicable to all forms of mutual assistance regulated in the Mutual Assistance Act, i.e. to extradition and accessory mutual assistance as well as to vicarious prosecution and execution. The grounds for refusal set out in Art. 1a are not applicable if Switzerland has concluded a bilateral or multilateral mutual assistance treaty with the requesting treaty that does not contain a corresponding provision.
8As mentioned above, the granting of mutual assistance must take into account Switzerland's sovereign rights, security, public order or other essential interests. In addition to the concept of essential interests, which is a catch-all provision within Art. 1a IMAC, the concept of public order in particular requires explanation.
A. Public Order
9The concept of public policy was not provided for in the Federal Council's draft and was inserted by the Council of States. Its content is not immediately comprehensible in the context of Art. 1a IMAC. In some cases, it is equated with the concept of ordre public or the latter is generally included under the concept of public policy of Art. 1a IMAC. "Public order" and "ordre public" are, however, two terms with different content in the German language. While public order usually refers to a police property, ordre public encompasses the foundations of the legal order. In French and Italian wording, on the other hand, the term ordre public or ordine pubblico is used for both cases.
10Art. 1a ISRG was modeled on Art. 2 lit. b EUeR, which also uses the term ordre public in its original French version, but "öffentliche Ordnung (ordre public)" in the German translation. With Art. 2 lit. b EUeR, a reservation should be granted to the foundations of the national legal order, whereby at least the national ordre public could be covered by the concept of public order. The national ordre public comprises the totality of principles and institutes which are considered fundamental for a society and are consequently recognized by law. These can be of a material or formal nature. In Switzerland, these include in particular the prohibition of corporal punishment and the death penalty, and to a certain extent also the appropriateness of penal sanctions and essential procedural maxims. A violation of these principles and institutes constitutes a breach of the national ordre public, as do serious deficiencies of the foreign proceedings, as they are expressly mentioned in Art. 2 lit. d IMAC. National ordre public thus describes the extent to which Switzerland's involvement in the enforcement of foreign criminal law contradicts fundamental views of the Swiss legal system.
11 It is undisputed that a violation of the national ordre public leads to a denial of mutual assistance. However, the classification has practical significance insofar as it determines which body will rule on a possible violation of ordre public. If serious deficiencies in the foreign proceedings are included as a violation of public policy under Art. 2 lit. d IMAC, the executive authorities decide on this and the decision is subject to judicial review. If, on the other hand, public policy is the subject of Art. 1a IMAC, the decision falls to the FDJP and, as the appeal authority, to the Federal Council.
12The ordre public, as it is used in German, aims at protecting individual rights by protecting the person concerned from serious procedural defects. According to Popp, for example, the question of whether to deny an extradition request because of a threat of corporal punishment is a purely legal one that cannot depend on political considerations such as general relations with the country in question, countervailing considerations in other fields, or domestic political importance. In contrast, Art. 1a IMAC involves a political balancing that pursues the protection of Switzerland's interests. In other words, a violation of public policy in an individual case is not to be determined according to Art. 1a IMAC, but according to Art. 2 lit. d IMAC, whereby the decision is incumbent on the executive authorities and thus subject to judicial review.
13 However, to understand the concept of public order only as a police asset and part of internal security (Art. 57 FC) falls short. Finally, situations are also conceivable in which the systematic violation of fundamental rights in the requesting state could endanger public order in Switzerland. If the content of Switzerland's national ordre public is systematically violated in the foreign state beyond the individual case, the granting of mutual assistance would hardly be compatible with public order and the interests of Switzerland within the meaning of Art. 1a IMAC.
B. Essential interests of Switzerland
14By "essential interests of Switzerland" is meant interests that are crucial to the existence of Switzerland. This includes, in particular, the protection of the Swiss economy in its entirety, whereby this can only be considered to be at risk in particularly serious situations. According to the case law of the Federal Supreme Court, banking secrecy as such cannot prevent the granting of mutual assistance. However, mutual assistance may be refused if the execution of the request would virtually undermine banking secrecy or cause disadvantages to the Swiss economy as a whole. The granting of legal assistance that is limited to the provision of information on certain banking relationships of a few clients does not violate banking secrecy. Furthermore, according to the Federal Supreme Court, the functioning of international supervision of financial services must also be counted among Switzerland's essential interests.
15In principle, there is no threat to the Swiss economy as a whole if a foreign authority is provided with information on assets stored in Switzerland that may be of criminal origin. This is because the Swiss financial center must not be abused for criminal purposes. On the contrary, Switzerland's essential interests would be adversely affected if assets potentially representing the proceeds of crime could be invested in Switzerland without the foreign authorities being able to obtain information about them. In this sense, the consideration of essential Swiss interests can also speak in favor of cooperation: The idea that it is contrary to the national interest if Switzerland becomes a haven for flight assets or criminal funds, and that this damages Switzerland's reputation, may also be taken into account in favor of providing mutual legal assistance within the scope of the decision-making leeway available to the law enforcement authorities.
In this commentary, the author reflects her personal assessment.
Bibliography
Donatsch Andreas/Heimgartner Stefan/Meyer Frank/Simonek Madeleine, Internationale Rechtshilfe ‑ unter Einbezug der Amtshilfe im Steuerrecht, 2. Aufl., Zürich/Basel/Genf 2015.
Ludwiczak Glassey Maria, Entraide judiciaire internationale en matière pénale - Précis de droit suisse, Basel 2018.
Markees Curt, Internationale Rechtshilfe in Strafsachen, Das Bundesgesetz vom 20. März 1981 (IRSG), Schweizerische Juristische Kartothek Nr. 421a.
Moreillon Laurent (Hrsg.), Entraide internationale en matière pénale, EIMP/EJUS/LTEJUS/TEXUS, Commentaire romand, Basel 2004.
Niggli Marcel Alexander/Heimgartner Stefan (Hrsg.), Internationales Strafrecht, IRSG, GwÜ, Basler Kommentar, Basel 2015.
Popp Peter, Grundzüge der internationalen Rechtshilfe in Strafsachen, Basel/Genf/München 2001.
Zimmermann Robert, La coopération judiciaire internationale en matière pénale, 5. Aufl., Bern 2019.