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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. History of origins
1 Art. 32 IMAC entered into force with the Legal Assistance Act on 31 December 1982. Since then, it has remained in force unchanged.
2 The extradition of suspected or convicted delinquents from one sovereign (today: state) to another, which is the subject of Art. 32 et seq. The extradition of suspected or convicted offenders from one sovereign (today: state) to another, which is the subject of Articles 32 et seq. of the IMAC, has a long history, of which only the modern part can be roughly outlined here. The principle "aut dedere aut punire" (either extradite or punish) was postulated by Grotius in the 17th century. From the 18th century, European countries began to conclude extradition treaties among themselves, which served as the legal basis for such extraditions. In the 19th century, the first extradition laws were introduced to prevent states from becoming havens for criminals. Switzerland passed such a law in 1892, which remained in force until the entry into force of the IMAC.
3 Art. 1 of the Extradition Act of 1892 can be seen as the predecessor provision of Art. 32 IMAC. In its 1976 dispatch, the Federal Council seems to have assumed that Art. 28 E-IRSG (later Art. 32 IRSG) does not effect any change compared to the earlier law.
II. Context of the Provision
4 Art. 32 IMAC marks the beginning of Part Two of the Mutual Legal Assistance Act, which governs extradition. As late as 1976, the Federal Council stated that it "must be considered the most important form of international cooperation." This also explains its top position among the forms of legal assistance in the systematics of the IMAC. Extradition continues to play an important role in Swiss mutual legal assistance practice. It is also the most drastic measure in the area of mutual legal assistance for the person concerned.
5 Within Part Two of the IMAC, Art. 32 is at the beginning of Chapter 1, which regulates the conditions for extradition. In this context, Art. 32 IMAC takes up the privilege of nationals under extradition law of Art. 7 para. 1 IMAC, in that according to its wording only "foreigners" can be extradited (see N. 12 ff.), and outlines the grounds for extradition of a specific criminal offense (extradition offense), which are concretized by Art. 35 IMAC (see N. 21 ff.).
6 Like all other procedures of international mutual legal assistance in criminal matters, extradition is subject to the General Provisions of the Mutual Legal Assistance Act (Art. 1 et seq. IMAC).
7 Attention must be paid to the relationship of Art. 32 IMAC to international treaty and cantonal law provisions. According to Art. 1 para. 1 IMAC, provisions in extradition treaties take precedence over the IMAC and thus also its Art. 32. Art. 32 et seq. IMAC in turn take precedence over cantonal law (Art. 49 para. 1 BV).
III. Normative content in detail
8 Two functions can be attributed to Art. 32 IMAC: On the one hand, the norm helps to clarify the definition of extradition in the applicable law (A.); on the other hand, it establishes initial requirements for extradition (B.), which are supplemented by the subsequent articles of the Mutual Assistance Act.
9 Art. 32 IMAC is formulated as an "optional provision"; it does not establish an obligation to extradite. Thus, Art. 32 IMAC reflects the principle contained in Art. 1(4) IMAC, according to which no right to cooperation can be derived from the Mutual Assistance Act.
A. Concretization of the concept of extradition
10 Art. 32 IMAC allows conclusions to be drawn about the concept of extradition on which the Mutual Assistance Act is based. As the Federal Council explained in its 1976 dispatch on this law, under the regime of the Extradition Act of 1892, "extradite" meant "the surrender of the person prosecuted to the requesting state for prosecution or execution for acts subject to the (original) jurisdiction of that state." Further, while it is a matter of surrendering a person to another state for prosecution or execution for acts that that state can punish, it is not a matter of surrendering a person to another state for prosecution or execution for acts that that state can punish. However, in accordance with European conventions, extradition is now also an instrument for the (forced) transfer of the prosecuted person to the state requested to take over prosecution or execution. This is clear from the text of Art. 32 in fine IMAC as well as from the related materials. The initiative for extradition to a foreign country need not therefore come from abroad.
B. Formulation of initial requirements for extradition
11 From the wording of Art. 32 IMAC, the following initial requirements for extradition can be inferred, which are to be supplemented by the subsequent legal provisions:
1. Foreign national
12 First, the person concerned must be a foreigner. This follows both from the subject heading and from the wording of Art. 32 IMAC in all three official languages. The fact that, in principle, only foreign nationals can be extradited (national privilege) also follows from Art. 25 para. 1 second sentence of the Federal Constitution and Art. 7 para. 1 IMAC.
13 It is clear from the latter two provisions that the decisive factor for the possibility of extradition is not the possession of a foreign nationality (of the requesting state or of another state), but the lack of possession of Swiss nationality. Thus, a foreigner in the sense of Art. 32 IMAC is anyone who does not possess Swiss citizenship (in the sense of the BüG). Swiss-foreign dual or multiple citizens are therefore not foreigners within the meaning of this provision, but stateless persons and persons with a residence or settlement permit in Switzerland or refugee status are.
14 The relevant point in time is the time at which the extradition requirements are assessed or the execution of the extradition takes place (and not, for example, the time of the act). Thus, anyone who lost Swiss citizenship before the extradition decision can be extradited, but not anyone who acquired it (even if directly) before the decision or the planned extradition.
15 Contrary to what the wording of Art. 32 IMAC might suggest, extradition of Swiss nationals is not excluded per se, but is possible if they consent to extradition (Art. 25 para. 1 second sentence of the Federal Constitution; Art. 7 para. 1 IMAC; see also Art. 54 IMAC). In this case, the same conditions for extradition apply.
16 Other cases in which Swiss nationals may be surrendered to the outside world are surrender to the International Criminal Court (cf. Art. 16 para. 3 IMAC), transit (Art. 7 para. 2, Art. 20a IMAC), return (Art. 7 para. 2 IMAC) and - temporarily limited - extradition (Art. 70 para. 2 IMAC), whereby in the latter case safe conduct must be granted (Art. 70 para. 1 IMAC). While transit and return are traditionally understood as special types of extradition, the legislature and most of the literature want to clearly separate extradition to the International Criminal Court from extradition both conceptually and conceptually. This is apparently primarily in order to avoid the constitutional requirement that Swiss nationals cannot be extradited without their consent (Art. 25 para. 1 BV).
2. Handover to another state
17 Secondly, the surrender must be to another state. According to the wording of the law, therefore, "extradition" within the meaning of the IMAC is not possible to Swiss domestic authorities - as the title and context of the IMAC already suggest - to communities not constituted as states or to inter- or supranational organizations (but see n. 19 on such organizations). However, in BStGer 2008 61, the Federal Criminal Court approved extradition to the United Nations Interim Administration Mission in Kosovo. This was a special case in that the said authority held administrative power over Kosovo (including the judiciary).
18 According to the three-element doctrine recognized under international law, the constitution as a state presupposes a state territory, a state people and state power. According to Swiss practice, it is not necessary for the requesting state to be internationally recognized as a state; Switzerland does not even have to recognize it as such, since recognition has merely declaratory effect.
19 The amendment to Art. 1 IMAC, which entered into force on June 1, 2021, raises the question of whether Art. 32 IMAC applies mutatis mutandis with respect to international courts or other intergovernmental or supranational bodies (see Art. 1(3bis) and (3ter) IMAC). The message on this amendment speaks in favor of this: "The opening of Article 1 IMAC has [...] the effect of making not only other mutual legal assistance more flexible, but also cooperation in the area of 'extradition' [...]." With respect to the International Criminal Court, however, the CISG must be observed as lex specialis. The surrender of a person by Switzerland to the International Criminal Court is governed exclusively by this more specific law and accordingly does not constitute an extradition but a transfer (see n. 16).
20 By speaking of "surrender", Art. 32 IMAC implicitly presupposes that the person concerned is in Switzerland.
3. Offence of the occasion
21 Third, the surrender must be based on an act that the other state can punish. While the Italian wording of the law with "atti", like the German, speaks of acts, the French wording with "infraction" already includes the violation of the law, but is more open with regard to the nature of the same, since it is also able to include the omission at once. However, the "acts" or "atti" in Art. 32 IMAC are also to be understood in a broad sense, encompassing both actions and omissions. This interpretation is in line with Art. 35 IMAC, which specifies the characteristics of the offense and speaks of "[d]elicts" and "deeds" ("infractions"/"reati"), without providing for a restriction to offenses of commission.
22 Insofar as Art. 32 IMAC requires that the other state "can punish" the act in question ("a le droit de connaître de"/"può reprimere"), this means that it must have penal sovereignty (penal power) over it, in both senses of the word: on the one hand, it must have the authorization under international law to prosecute the act (ius puniendi), i.e., to rely on an international treaty to do so. This means that he must be able to rely on a connecting principle recognized under international law or on another basis recognized under international law. In addition, it must actually record this act under criminal law (in accordance with its law on the application of punishment).
23 In principle, it is irrelevant on which basis of international law the other state relies to justify its criminal jurisdiction, e.g. whether on the principle of territoriality or the principle of protection (see on the principle of universality n. 27 ff.). However, it follows from the principle of reciprocity that it must be one on the basis of which Switzerland could demand extradition from it.
24 Fiolka also requires that the act be punishable in the other state and that its law be applicable to it, as well as that the foreign authorities be responsible for "punishing" the act. These additional requirements cannot be taken from Art. 32 IMAC and have to be dealt with in the context of Art. 35 para. 1 lit. a IMAC. In any case, the internal jurisdiction of the foreign authority is not to be examined.
25 The case law applies a reserved standard of assessment. Accordingly, mutual assistance or extradition is to be refused (only) if the lack of criminal jurisdiction of the other state is so obvious that its request appears to be abusive or its affirmation of its own jurisdiction arbitrary. However, insofar as this restraint is justified by the fact that it is a question of the "interpretation of the law of the requesting state", which is "primarily a matter for its authorities", this falls short, since the foreign criminal jurisdiction must also be able to be based on applicable international law (see n. 22).
26 The very judicial assistance-friendly standard applied by case law has the consequence that extradition is to be refused only in cases in which no connection whatsoever of the requesting state to the crime or no basis in international law for its criminal jurisdiction over the crime is apparent, for lack of a suitable predicate offense within the meaning of Art. 32 IMAC. International agreements may, of course, provide for a different standard.
27 What should be done with an extradition request in which the requesting state invokes the principle of universality (principle of international law) to justify its criminal jurisdiction? Two constellations must be distinguished.
28 If the alleged perpetrator was not previously in the territory of the requesting state, this is clearly a case of the so-called unrestricted universality principle (also called absolute, pure or genuine universality principle), according to which the presence of the perpetrator in the territory of the prosecuting authority is not required. This principle cannot currently be considered recognized under international law. Although it has been adopted by individual legal systems (e.g. Germany, New Zealand), it remains highly controversial, and the threshold for its recognition under customary international law does not appear to have been crossed. Another special feature of the constellation of interest here is that, in the event of extradition, the requesting state would no longer have to invoke the unrestricted principle of universality, but could prosecute the extradited person on the basis of the - internationally recognized - restricted principle of universality. However, Art. 32 IMAC presupposes that the other state already possesses criminal jurisdiction based on international law and does not acquire it only through extradition. A hypothetical or suspensively conditioned criminal jurisdiction is not sufficient.
29 Admittedly, even if - as in the constellation discussed here - the requesting state cannot ultimately base its criminal jurisdiction on existing international law, its request will appear all the less abusive the more this (here: the scope of the principle of universality) is disputed. In application of the - not convincingly justified (see n. 25) - very judicial assistance-friendly standard of the Federal Supreme Court, a request based on the unrestricted principle of universality could therefore perhaps still be granted.
30 If the presumed perpetrator was initially on the territory of the requesting state that initiated an investigation against him and subsequently left that state's territory, it can be argued that a case of the limited universality principle exists. Whether this principle in international law actually covers this case or whether the criminal jurisdiction expires when the person leaves the state territory requires an investigation under customary international law, which is not to be done here. In any case, the extradition request in this constellation appears to be even less abusive and - subject to other grounds for refusal - will be granted if only because Switzerland itself claims criminal jurisdiction in the same constellation and submits extradition requests to the foreign country.
31 Finally, it should be mentioned at this point that the act in question must have been committed by the person concerned himself. We shall return to this point in a moment (n. 32).
4. Purpose of the surrender: prosecution or execution of a sanction restricting freedom
32 Fourthly, the surrender must be for the purpose of criminal prosecution or the execution of a sanction that restricts freedom. Thus, Art. 1 para. 1 lit. a IMAC is taken up again. Any other purpose, such as the conduct of civil or administrative proceedings or the taking of evidence in other criminal proceedings (against third parties) in the foreign country concerned, falls out of consideration. The prosecution or sanction to be enforced must thus be directed at the act performed by (or attributable to) the person concerned.
33 Extradition for criminal prosecution serves to arrest and hand over a person accused in foreign criminal proceedings so that the foreign judicial authorities can conduct criminal proceedings against him.
34 It follows from Article 35(1)(a) IMAC that the variant of the purpose of prosecution (and not only that of the purpose of execution of the sentence) must also involve an offense of a certain gravity. Indeed, the provision presupposes an offense that is punishable under the law of both Switzerland and the requesting state by a sanction that restricts freedom to a maximum of at least one year or by a more severe sanction.
35 The purpose of extradition for the enforcement of a sanction restricting freedom is the arrest and surrender to the other state of a person against whom there is a foreign final and enforceable decision to enforce a sanction restricting freedom. Sanctions restricting freedom (cf. Art. 11 para. 2 IMAC) are custodial sentences and inpatient measures. "Restrictive of liberty" is thus to be equated here with "depriving of liberty", as is clearest from the French language version ("sanction privative de liberté").
36 The law does not specify a minimum duration of the sentence to be enforced. According to the Message on the IMAC, it is "self-evident that extradition no longer appears to be proportionate if the deprivation of liberty still to be enforced is less than about three months." Such cases are likely to be subsumed under Art. 4 IMAC.
37 According to the case law of the Federal Supreme Court in the context of the EAÜ, extradition for the execution of a conditional custodial sentence is only possible if the conditional sentence is revoked (suspensive condition). There is no compulsion to transfer this case law to the context of the IMAC, especially since here - unlike with the EAW - there is no obligation to extradite. Rather, a proportionality test is required on a case-by-case basis, whereby it is clear that both the remaining sentence and the remaining probationary period may not be less than the minimum that applies to unconditional sentences (cf. n. 36).
5. Request
38 Fifth, either the other state must request extradition (cf. Art. 27 et seq. IMAC) or, at Switzerland's request, it must take over prosecution or enforcement of the sentencing decision. The latter two options also require the express consent of the other state to extradition. In practice, they are likely to be rarely used.
The author thanks the editors of the online commentary and an anonymous reviewer.
The generic masculine is used in this commentary.
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