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- Art. 96 para. 2 lit. a FC
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- Art. 808c CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
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- Art. 3 para. 1 and 2 IMAC
- Art. 8 IMAC
- Art. 8a IMAC
- Art. 11b IMAC
- Art. 16 IMAC
- Art. 17 IMAC
- Art. 17a IMAC
- Art. 32 IMAC
- Art. 35 IMAC
- Art. 47 IMAC
- Art. 63 IMAC
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- Art. 67a IMAC
- Art. 74 IMAC
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- Art. 80 IMAC
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- Art. 80d IMAC
- Art. 80h IMAC
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 4 FADP
- Art. 5 lit. c FADP
- Art. 5 lit. d FADP
- Art. 5 lit. f und g FADP
- Art. 6 para. 3-5 FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
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- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
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- Art. 35 FADP
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- Art. 47a FADP
- Art. 48 FADP
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- Art. 50 FADP
- Art. 51 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. 16 CCC (Convention on Cybercrime)
- Art. 18 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 27 CCC (Convention on Cybercrime)
- Art. 28 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)
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- Art. 2 para. 1 AMLA
- Art. 2a para. 1-2 and 4-5 AMLA
- Art. 2 para. 3 AMLA
- Art. 3 AMLA
- Art. 7 AMLA
- Art. 7a AMLA
- Art. 8 AMLA
- Art. 8a AMLA
- Art. 11 AMLA
- Art. 14 AMLA
- Art. 15 AMLA
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- Art. 23 AMLA
- Art. 24 AMLA
- Art. 24a AMLA
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- Art. 26 AMLA
- Art. 26a AMLA
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- Art. 29 AMLA
- Art. 29a AMLA
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- Art. 30 AMLA
- Art. 31 AMLA
- Art. 31a AMLA
- Art. 32 AMLA
- Art. 38 AMLA
FEDERAL CONSTITUTION
MEDICAL DEVICES ORDINANCE
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
CRIMINAL CODE
CYBERCRIME CONVENTION
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
FREEDOM OF INFORMATION ACT
FEDERAL ACT ON THE INTERNATIONAL TRANSFER OF CULTURAL PROPERTY
- I. History
- II. Context of the provision
- III. Specific content of the provision
- Bibliography
- Materials
- Instructions
I. History
1 Art. 35 IMAC has been in force in the wording reproduced above since January 1, 2011. Previously, a similar version (aArt. 35 IMAC) applied, which had come into force with the Mutual Assistance Act on January 1, 1983.
2 The changes made in 2011 are straightforward: the factors not to be taken into account listed in para. 2 (see N. 56 ff.) are now divided into two letters (a and b); in addition, the SCC has been inserted in letter b and the relevant criminal provisions have been updated.
3 The predecessor to Art. 35 IMAC is Art. 3 of the Extradition Act of January 22, 1892. In contrast to the latter, the former listed all possible offenses for extradition individually in a catalog, in accordance with the “enumeration method” that was widespread at the time. In contrast, Art. 35 IMAC follows the “threshold method” that dominates modern extradition treaties, according to which any offense punishable by a certain minimum penalty can be grounds for extradition (see N. 16).
II. Context of the provision
4 In the systematic structure of the Mutual Assistance Act, Art. 35 is found in the second part on extradition, specifically in Chapter 1 on the conditions for extradition. Art. 35 IMAC specifies the extradition requirement of the predicate offense (cf. N. 6), which is already outlined in Art. 32 IMAC. This prerequisite must be examined when deciding on extradition, but may also be relevant in the context of examining extradition detention, in particular if the alleged conduct is not punishable under Swiss law (e.g., adultery, cohabitation): In this case, extradition is clearly inadmissible within the meaning of Art. 51 para. 1 IMAC.
5 In relation to international treaty provisions, the rule of Art. 1 para. 1 lit. a IMAC applies, according to which provisions in international agreements take precedence over the second part of the Mutual Assistance Act and thus also over Art. 35. Extradition treaties may, in particular, set the threshold for the predicate offense lower, i.e., allow extradition for less serious offenses than would be permissible under Art. 35 IMAC.
III. Specific content of the provision
6 As can be seen from its heading in all three official languages and its content, Art. 35 IMAC has the function of specifying the extradition requirement of the offense (extraditable offense). It requires that, according to the documents in the request (A.), the offense is punishable by a certain minimum penalty in both countries, whereby certain factors are not to be taken into account (B.), and is not subject to Swiss jurisdiction (C.).
7 According to its clear wording in all three official languages, Art. 35 IMAC only sets out conditions for the admissibility of extradition; it does not establish any obligation to extradite. It thus reflects the discretionary provision of Art. 32 IMAC and the principle of Art. 1 para. 4 IMAC, according to which no right to cooperation can be derived from the Mutual Assistance Act. However, an obligation to extradite may arise from international agreements (see OK-Payer, Art. 32 IMAC N. 10) .
8 Art. 35 IMAC regulates only the classic scenario in which another state requests Switzerland to extradite a person to it, and not the scenario in which Switzerland requests another state to take over criminal prosecution or enforcement and, in this context, wishes to extradite the person to it (cf. Art. 32 last clause, Art. 88 lit. b, Art. 100 f. IMAC). Firstly, this is already made clear in para. 1 lit. a, which refers to “the law of both Switzerland and the requesting state” (“du droit suisse et du droit de l'État requérant”/“sia secondo il diritto svizzero sia secondo quello dello Stato richiedente”). Secondly, this is evident from the fact that para. 1 lit. b makes the absence of Swiss jurisdiction a prerequisite for extradition, even though Swiss jurisdiction exists in the case of Swiss requests to foreign countries for transfer (cf. Art. 88, Art. 100 IMAC) and extradition is permissible in this constellation according to other provisions (Art. 32, 88 lit. b and 101 IMAC). Thirdly, this restrictive interpretation of Art. 35 IMAC is supported by the fact that Switzerland can accept foreign requests for the transfer of criminal prosecution/enforcement in connection with surrender even for offenses below the minimum threshold of para. 1 lit. a (Art. 85 and 94 ff. IMAC do not specify such a threshold). Thus, Art. 30 para. 1 IMAC does not preclude Switzerland from requesting another country to take over criminal prosecution/enforcement in connection with extradition for offenses below this threshold; on the contrary, the principle of reciprocity argues in favor of granting Switzerland this right as well. For these reasons, Art. 35 IMAC must be interpreted as not applying to Swiss requests to foreign countries; in this constellation, therefore, neither the condition of lack of Swiss jurisdiction (para. 1 lit. b) nor the minimum threshold of para. 1 lit. a applies. This means that, at least in theory, there is a risk that the minimum threshold of para. 1 lit. a will be circumvented where it should apply – namely when the foreign country requests extradition – by (informal) request from the foreign country. However, this risk is reduced by the fact that a request from Switzerland can only be considered if the transfer to the foreign country is likely to result in better social reintegration (cf. Art. 88 lit. b, Art. 100 lit. b IMAC) . In addition, the FOJ is bound by the principle of legality and the preservation of the legislature's assessment as expressed in Art. 35 IMAC.
A. Documents accompanying the request as a basis for review (para. 1). At the same time, the domestic nature of the extradition procedure
9 The basis for examining the further requirements is the documentation accompanying the request (Art. 35 para. 1 IMAC). This requires clarification: the (hypothetical) criminal liability and minimum penalty under Swiss law, as well as the lack of Swiss jurisdiction, must be examined with reference to the relevant domestic legal sources.
10 With regard to the content of the request and its annexes, it must be clear in particular what facts the person being prosecuted is accused of and how these are legally classified by the requesting state; the wording of the relevant legal provisions must be included (see Art. 28 para. 2 lit. c and para. 3 IMAC, Art. 10 Ordinance on International Legal Assistance in Criminal Matters [Mutual Assistance Ordinance, IRSV]). In addition, the documents must clarify on what grounds the investigating authority bases its suspicion against the person being prosecuted, so that the request does not appear to be abusive. If an enforceable criminal judgment or arrest warrant exists, it must be enclosed (Art. 41 IMAC). However, the requesting authority does not have to enclose any evidence with its request.
11 Case law does not impose strict requirements on the presentation of the facts: completeness and total consistency are not required. This is understandable in the case of extradition for criminal prosecution, especially since this often takes place at an early stage of the foreign proceedings and is intended to enable the requesting state to examine whether and, if so, how the person being prosecuted has committed a criminal offense. However, the situation is different in the case of extradition for the enforcement of sanctions, where adversarial proceedings have already been conducted and a criminal judgment has been handed down. In this case, higher requirements should be placed on the presentation of the facts (and the legal qualification).
12 The authority deciding on extradition – the FOJ – is therefore not required to conduct its own investigation of the facts, but must rely on the request and its supporting documents. This can be justified by the principles of trust and good faith in international relations. It is in line with these principles that the deciding authority generally adheres to this information (for exceptions, see N. 15). In case of ambiguity or inadequate translation, the requesting state may be asked to provide additional or improved information (Art. 28 para. 6 IMAC).
13 The reliance on the documents in the request (as well as, for example, the fact that the FOJ and not a court decides on extradition, including extradition detention) can also be explained by the fact that, from a Swiss domestic perspective, the extradition procedure is an administrative procedure and not a criminal procedure or part of the foreign criminal procedure. The FOJ does not decide on wrongdoing, guilt or punishment, but on an administrative coercive measure. It therefore does not have to deal with the question of whether the person being prosecuted is actually guilty of the alleged offense, but only with the question of whether, according to the request and its documents, the conditions for extradition are met. The extradition proceedings therefore do not serve to establish the material truth, and extradition does not require that an extraditable offense has actually been committed, but only that such an (alleged) offense is being prosecuted or has been punished in the requesting state. The ECtHR has also denied the validity of the guarantees contained in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) for criminal charges (as well as for civil claims) in relation to extradition proceedings.
14 The classification of extradition and, more generally, mutual legal assistance proceedings as administrative proceedings has recently been (once again) criticized in some legal literature. This is not the place for a detailed statement, so a brief one will have to suffice: There are indeed some elements that seem to indicate that extradition proceedings have a criminal procedural component (e.g., para. 12(1) sentence 2 of the IMAC, the right of appeal to the Federal Criminal Court, the requirement of double criminality). However, they can also be explained in other ways (see, for example, N. 22 f.), and the criticism seems to be stronger where it is not a question of extradition but of minor legal assistance or coercive measures under the CrimPC. In any case, the concept of extradition as an administrative matter is that of the legislature and also seems understandable, especially since Switzerland typically does not have or exercise any criminal jurisdiction in this area, not even derived jurisdiction. Switzerland cannot conduct its own criminal proceedings, and anyone who believes that the legal assistance it provides is part of foreign criminal proceedings would have to demonstrate that the foreign country has transferred its criminal jurisdiction to Switzerland (through the extradition request). However, this seems far-fetched and does not correspond to the concept of the extradition procedure as it is practiced. Furthermore, it would be detrimental to the purpose of international cooperation in criminal matters to grant all criminal procedural guarantees already in the extradition proceedings, as this would make the proceedings correspondingly more complex and lengthy. Extradition detention would likely be prolonged accordingly, and the capacity and willingness to provide legal assistance could decline. Of course, this does not release Switzerland from its obligation to prevent extradition from enabling (serious) human rights violations abroad (see Art. 2 IMAC). The non-granting of criminal procedural rights in extradition proceedings is based on the premise that they are granted in foreign criminal proceedings.
15 There are three exceptions to the principles outlined above (N. 9, N. 12 f.): Firstly, in cases of (liquid) alibi evidence pursuant to Art. 53 IMAC, the FOJ must conduct its own investigations and refuse extradition in cases of clear innocence within the meaning of Art. 53 para. 2 sentence 1 IMAC. Secondly, it may deviate from the statement of facts in the extradition request or its supporting documents to the extent that these are “immediately invalidated by obvious errors, omissions, or contradictions.” In our opinion, this should also be done if no correction or addition (cf. N. 12) is made. Thirdly, extradition requests that appear to be an abuse of law – in particular due to a particularly serious and obvious violation of foreign procedural law – must not be complied with.
B. Positive requirement: mutual threat of a minimum penalty (para. 1 lit. a)
16 Art. 35 IMAC defines the offenses that may give rise to extradition not by means of a list, but by formulating a minimum threshold (N. 3): The offense must be punishable in both Switzerland and the requesting state (principle of double criminality), with a custodial sentence of at least one year or a more severe penalty (minimum threshold). This method of definition has the particular advantage over a catalog that it does not require constant updating and supplementation and avoids additional (difficult) questions of interpretation.
1. Principle of double criminality
17 First, the requirement that the act be punishable in both states corresponds to the principle of double criminality, also known as the principle of dual criminality. Another, but inappropriate or misleading (see N. 54) term is the principle of identical norms.
a. Rationale
18 Why is double criminality required? The fact that the act must be punishable in the requesting or prosecuting state follows from the principle of legality in criminal law and the logic of mutual assistance in criminal matters. But why must it also be punishable in the requested or assisting state? It is essential to clarify this point, because only the rationale behind the principle makes it possible to decide various questions concerning its scope on a sound and coherent basis (cf. below N. 30, 47, 49, 51 f., 55, 58, 63).
19 A first approach to justification also seeks to trace this back to the principle of legality in criminal law. A state may not apply criminal procedural measures if the alleged offense is not punishable under its laws. However, this argument is not convincing from the outset if mutual legal assistance is classified as administrative law (see N. 13 f.).
20 A second approach refers to the predictability of mutual legal assistance in criminal matters: the principle of double criminality serves the requesting state by making the extent of the requested state's cooperation predictable for it. This may be true, but some requesting states would prefer the requested state to abandon this principle, which restricts mutual legal assistance. In addition, it can be said that every standardized requirement for legal assistance promotes the predictability of the scope of cooperation, but this does not provide an intrinsic reason for its existence (in other words: why this particular requirement?).
21 According to a third, widespread approach, the principle of double criminality reflects that of reciprocity (mutuality of rights and obligations). The idea is as follows: if behavior X is not punishable in state A, but is punishable in state B, and A were to request B to extradite a person for X (which would of course be absurd), B would refuse extradition because A could not prosecute X at all. A can now conclude that it should not grant extradition to B for X – or, more generally, for conduct that is not punishable under its (A's) law. However, this is based on a simplistic way of thinking or a superficial understanding of reciprocity. The line of reasoning outlined above ignores the reason why B would refuse extradition to A for X: because A cannot prosecute the conduct X due to its lack of criminalization in A. A precise application of the principle of reciprocity must take this reason into account, so that A can only refuse extradition to B on the basis of this principle for acts that B cannot prosecute due to their lack of criminalization in B. This does not apply to X. If A does not want to extradite because of X, then this is not supported by the principle of reciprocity. In short, if the other state would be willing to provide legal assistance even in the absence of criminal liability under its law, it is not clear how the principle of reciprocity could support the principle of double criminality. In any case, the appeal to this idea seems to be stuck at a formal level and thus misses the reason why a state should require double criminality (in the first place) (which would then result in reciprocity consequences for other states).
22 The three inadequate explanations presented (N. 19–21) are countered by a fourth, more convincing justification that refers to value pluralism. According to this, the principle of double criminality protects states in their different value convictions by ensuring that no state has to assist another in its prosecution or enforcement if it does not itself consider the conduct to be punishable. Criminal law is, in fact, more than any other area of law an expression of the social value system.
23 A fifth, utilitarian interpretation is similar and also cannot be completely dismissed: if the requested state does not consider the alleged conduct to be punishable, it simply has no interest in helping the foreign country. If it waives criminal liability under its own law, it could demand a corresponding waiver from the foreign country in its own requests. However, mutual legal assistance in criminal matters is not only provided in order to acquire reciprocal rights, but above all to enable effective crime fighting that is not hindered by national borders. However, this idea of intergovernmental solidarity or shared responsibility for security reaches its limits if the requested state does not consider the behavior being prosecuted to be criminal (even if the facts of the case are changed).
24 More recently, the literature has developed several proposals as to how the principle of double criminality, which is sometimes perceived as too restrictive, could be replaced by a new regulation that takes into account the legitimate concern underlying it (cf. N. 22) but avoids unnecessary restrictions on mutual legal assistance. According to this, the requested state should be able to refuse legal assistance if the conduct is not punishable under its law and (cumulatively) in the opinion of the deciding authority, it does not appear to be punishable or criminally punishable under that legal system. Such an approach would indeed have the advantage of allowing mutual legal assistance in cases where it is not a fundamentally different assessment but, for example, resource-related reasons that have led to more limited criminalization in the requested state. However, it would require the authorities to make a more complex and, in some cases, sensitive assessment. Incidentally, during the deliberations on the Mutual Assistance Act, Parliament rejected an exemption clause proposed by the Federal Council that would have allowed extradition for acts that are not punishable in Switzerland but are punishable abroad due to special circumstances and appear punishable under the general principles of Swiss law (Art. 32 para. 3 IMAC).
b. Side effects
25 A distinction must be made between the rationale behind the principle of double criminality and its (potential) side effects. These include, for example, the fact that the examination of double criminality requires an examination of existing differences between criminal law systems and can thus promote harmonization. It may also happen that, in the context of the examination of double criminality, a specific question of interpretation of a Swiss criminal offense has to be decided for the first time; in this way, double criminality contributes to the interpretation of local criminal law. However, the context of the request for legal assistance or the willingness to cooperate may lead to an overly broad interpretation of the elements of the offense, which is problematic and should be avoided. Some offenses were even enacted specifically to enable legal assistance or with regard to the requirement of double criminality.
c. Areas of application and respective differences
26 The principle of double criminality is also inherent in the enumeration method used in older extradition treaties. According to a landmark decision by the Federal Supreme Court in 1979, the requirement of double criminality is universally applicable and, as a result, should be considered implicit in extradition treaties that do not expressly stipulate it. According to the threshold method, it is enshrined, for example, in Art. 2 no. 1 sentence 2 of the European Convention on Extradition of December 13, 1957 (SR 0.353.1; hereinafter: ECA) and Art. 2 no. 1 sentence 1 of the Extradition Treaty of November 14, 1990, between the Swiss Confederation and the United States of America (SR 0.353.933.6; hereinafter: AVUS). In contrast, the requirement has been partially abolished within the EU with the European Arrest Warrant. The tendency to relativize the principle at the European level raises the question of whether the aforementioned Federal Supreme Court practice can still be upheld; in our opinion, it should be affirmed in any case for extradition.
27 The principle of double criminality also applies to the transfer of criminal prosecution or the enforcement of sentences by Switzerland (see Art. 86, 94 para. 1 lit. b IMAC). If the offense is not punishable in this country, it cannot be prosecuted here or result in criminal sanctions.
28 The principle of double criminality also applies in principle to minor mutual assistance, insofar as procedural coercion is to be applied (Art. 64 para. 1 IMAC), but in a different way: in this case, it is sufficient if the facts described in the request for mutual assistance can be subsumed under a single criminal offense under Swiss law. If this is the case, there is no need to examine whether the facts could fall under other offenses. Furthermore, in the case of minor mutual assistance, it is not necessary for the person affected by the assistance measure to be charged in the foreign criminal proceedings.
29 In contrast to this, in extradition law, double criminality (as well as the minimum threshold, N. 48) must be examined in relation to each offense or set of facts for which extradition has been requested. Consequently, the requesting state may only prosecute the extradited person for those circumstances (committed prior to extradition) for which Switzerland has affirmed dual criminality and approved extradition (principle of speciality, Art. 38 para. 1 lit. a IMAC). If it wishes to prosecute further offenses, it must submit a subsequent extradition request. Only the person being prosecuted may be extradited.
30 The principle of double criminality also governs accessory extradition pursuant to Art. 36 para. 2 IMAC, whereby extradition is granted not only for extraditable offenses but also for offenses that do not constitute such offenses. As case law has clarified, these other offenses must also be punishable under Swiss law; the aforementioned provision only makes it unnecessary for them to reach the minimum threshold of Art. 35 para. 1 lit. a IMAC. This view corresponds to the rationale behind the principle (N. 22 f.). The same applies to an extension of criminal prosecution after extradition has taken place: a corresponding supplementary request must be rejected if there is no criminal liability under Swiss law; however, it is not necessary for the new offenses to be prosecuted to reach the minimum threshold of Art. 35 para. 1 lit. a IMAC.
31 In addition, various provisions of criminal law standardize the principle of double criminality (e.g., Art. 6 para. 1 lit. a, Art. 7 para. 1 lit. a SCC). However, this principle fulfills a different function there: it requires the domestic criminal authorities to examine whether the act is punishable under foreign law (of the state where it was committed). This serves primarily to prevent inadmissible interference in foreign affairs and to protect individuals, who can thus, in principle, rely solely on the laws of their place of residence.
32 In contrast to this, the principle of double criminality in mutual legal assistance law requires the competent authority of the requested state to examine whether the act is also punishable under its own criminal law. This requirement serves domestic interests (N. 22 f.). Due to these different tasks, the principle does not necessarily have to be interpreted in the same way in both areas of law; instead of adopting interpretations tel quel, a separate interpretation must be made in each case, taking into account the specific features of the respective area.
2. Minimum threshold: custodial sentence of one year
33 Art. 35 para. 1 lit. a IMAC does not stop at the requirement of double criminality, but also requires that the offense be punishable in both states with a custodial sentence of at least one year or a more severe penalty. The function of this minimum threshold or “minimum maximum penalty” is to set a lower limit: Switzerland is only prepared to undertake the effort of extradition if the offense is of a certain severity, and only then does the considerable interference with the rights of the person concerned appear justified. In this respect, Art. 35 para. 1 lit. a IMAC fulfills the same filtering function – specifically for major mutual legal assistance – as Art. 1 para. 3 and Art. 4 IMAC, which exclude mutual legal assistance in minor cases or proceedings in the requesting state in which no judge can be called upon; In both cases, the aim is to ensure proportionality. Various extradition treaties provide for the same minimum threshold as Art. 35 para. 1 lit. a IMAC, such as the EEA (Art. 2 no. 1 sentence 2) and the extradition treaty of July 29, 1988, between Switzerland and Australia (SR 0.353.915.8; hereinafter: AVAUS) in its Art. 2 no. 1. However, the range of offenses that reach this threshold is broad.
34 It should be noted here that the minimum threshold of Art. 35 para. 1 lit. a IMAC does not apply to extraditions in connection with requests from Switzerland for the transfer of criminal prosecution or enforcement (N. 8). This exception serves the interests of the person being prosecuted, as such a request can only be considered if the transfer to another country is likely to result in better social reintegration (cf. Art. 88 lit. b, Art. 100 lit. b IMAC).
35 With regard to the terms “sanction”, which also includes measures involving deprivation of liberty, and “restrictive of liberty,” which is equivalent to “deprivation of liberty,” reference is made to OK-Payer, Art. 32 IMAC N. 37.
36 “More severe sanctions” than a restriction of liberty (imprisonment or measure involving deprivation of liberty) with a maximum term of at least one year are the death penalty and corporal punishment. If such penalties are threatened, extradition is excluded on grounds of human rights protection or public policy (Art. 2, 37 para. 3 IMAC, Art. 2 f. ECHR, Art. 1 Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty of April 18, 1983 [SR 0.101.06]). Extradition may only be considered (Art. 80p para. 1 IMAC) if the requesting state gives assurances that it will refrain from applying for, discussing, or enforcing such a penalty.
37 The minimum threshold of Art. 35 para. 1 lit. a IMAC is based on the (abstract) threat of punishment, not on the expected severity of the punishment. But what if a criminal judgment has already been handed down, i.e., extradition is intended to enable the enforcement of the sanction, and the judgment has imposed a sanction below this threshold or only a deprivation of liberty below this threshold remains to be enforced? What if the offender has been sentenced to a suspended prison sentence? Comments on these questions can be found in OK-Payer, Art. 32 IMAC N. 38 f. However, in addition to the minimum durations of imprisonment to be served referred to there, the abstract threat of punishment must always reach the minimum threshold of Art. 35 para. 1 lit. a IMAC (cumulative requirements).
38 In the course of the legislative work, the Federal Council expressly decided against restricting extradition to official offenses or making the prosecution of the offense ex officio a characteristic of extraditable offenses. This is because although offenses subject to complaint are often minor offenses for which ex officio prosecution does not appear proportionate in view of the effort involved, the requirement to file a criminal complaint can also serve other purposes (e.g., protecting the relationship between the offender and the victim, facilitating an amicable solution) and is therefore not a reliable criterion for the seriousness of an offense.
3. Content and modalities of the examination
39 The authority deciding on extradition must first determine which foreign and domestic legal sources and which versions of those sources should be used to examine double criminality and the minimum and maximum penalties (a.). Furthermore, it must transpose the facts of the case for examination under Swiss law (b.) and be clear about the scope (c.) and intensity (d.) of the examination. At this point, it should be noted once again that the IMAC is subsidiary to international agreements (see N. 5); the latter must be applied first if they are relevant and may require a modified examination. The following remarks concern the examination of the minimum penalty in both countries pursuant to Art. 35 IMAC.
a. Relevant sources of law
40 The source of law from which the criminal liability or threat of punishment under the law of the requesting state arises is irrelevant. It may be a criminal code, a special decree, or even – as in common law jurisdictions – case law. The principle of “nullum crimen sine lege scripta” does not apply here.
41 However, the criminal provision under foreign law must have already existed at the time the offense was committed. This follows from the prohibition of retroactivity guaranteed by human rights (see Art. 7 no. 1 ECHR; Art. 15 no. 1 International Covenant on Civil and Political Rights of December 16, 1966 [SR 0.103.2; hereinafter: ICCPR]), which Switzerland is not permitted to assist in violating abroad (cf. Art. 2 IMAC). In addition, the offense must still be punishable at the time of assessing the conditions for extradition, as otherwise the lex mitior principle (Art. 15 no. 1 ICCPR), which is also guaranteed under human rights law, would be violated or assistance would be provided in such a violation. Therefore, the authority deciding on extradition must consult both the foreign law applicable at the time of the offense and the current foreign law (for the scope of this consultation, see N. 49).
42 With regard to the time at which the minimum maximum penalty was threatened under foreign law, its existence must also be required both at the time of the offense and at the time of assessment or surrender. If a criminal provision existed at the time of the offense but did not threaten a maximum penalty reaching the threshold of Art. 35 para. 1 lit. a IMAC, extradition is not permissible even if the penalty has since been increased and this threshold has been reached. This is because either there is a risk of violating the prohibition of retroactivity (if the foreign country intends to apply the stricter, new penalty) or the offense cannot be prosecuted with the severity envisaged in Art. 35 para. 1 lit. a IMAC (if the foreign country intends to apply the old penalty). Conversely, if the penalty provided for in the criminal law at the time of the offense reached the minimum threshold but has since been reduced below it, extradition is also inadmissible. This is because there is either a risk of violating the lex mitior principle (if the foreign country wishes to apply the more severe, old penalty) or the offense cannot be prosecuted with the severity provided for in Art. 35 para. 1 lit. a IMAC (if the foreign country wishes to apply the new penalty).
43 For criminal liability or the threat of sanctions under Swiss law, any law is sufficient as a source of law; it does not have to be regulated in the SCC, but can also exist under ancillary criminal law. This is due to a conscious and explicit decision by the legislature. An independent emergency ordinance of the Federal Council (cf. Art. 185 para. 3 of the Swiss Federal Constitution [FC]) may also be considered, provided that it threatens a corresponding sanction, which is permissible according to (not entirely uncontroversial) case law in deviation from the reservation of law (Art. 31 para. 1, Art. 36 para. 1 sentence 2 FC). On the other hand, criminal liability under cantonal law (unlike perhaps for minor legal assistance) cannot suffice because it is limited to contraventions (Art. 335 para. 1 SCC), which, however, can never be grounds for extradition.
44 The decisive point in time at which criminal liability and the minimum maximum penalty under Swiss law must exist is solely that at which the conditions for extradition are assessed, i.e., the decision on extradition is made. It is therefore not the date on which the offense was committed or the date on which the extradition request was made that is decisive, nor, in the case of extradition based on an extradition treaty, is it the date on which the treaty was concluded or entered into force (unless otherwise provided). If Swiss law changes during the proceedings, the new law shall apply. The prohibition of retroactive criminal law does not apply here. International treaties may provide for a different rule, in which case the Federal Supreme Court's principle of favorability must be observed.
b. Conversion of the facts for examination under Swiss law
45 The facts described in the extradition request must be converted for examination. This process is often described as imagining that the act took place in Switzerland. This is appropriate if the requesting state is the state where the crime was committed. However, if it does not invoke the principle of territoriality to justify its criminal jurisdiction, but rather, for example, the principle of state protection, the act must be imagined as if it had taken place abroad but was directed against Switzerland (rather than against the requesting state). The Federal Supreme Court's more open wording takes this into account: “For the assessment of criminal liability under Swiss law, the facts set out in the extradition request must be assessed as if Switzerland had initiated criminal proceedings on the basis of the corresponding facts.” But what does “corresponding” mean, and how exactly should the facts be transposed? The following concrete guidance is suggested here: In the facts of the case, the requesting state must be replaced by Switzerland. If a public official of that state acted, he must be regarded as a public official of Switzerland; if the act was committed in the territory of the requesting state, it must be regarded as having been committed in Switzerland; if the act was directed against a national of the requesting state, the victim must be regarded as a Swiss national, etc.
46 Sometimes, however, this is not enough, and an additional modification or abstraction of the facts is required. This is the case, for example, if the person being prosecuted is accused of driving on the right-hand side of the road in a country where traffic drives on the left (e.g., the United Kingdom): Here, it is necessary to abstract by limiting the facts to the fact that the person being prosecuted drove on the wrong side of the road, or to modify the facts so that one imagines that he or she drove on the left side of the road in this country. However, such an approach is only possible if the behavior is equivalent, and not if the law of the requesting state sets the threshold for criminal liability (e.g., age of consent [see Art. 187 SCC], minimum content of certain substances for classification as a prohibited narcotic) lower than the local law.
47 Under the old law (Extradition Act of 1892), Schultz wrote that there should be no change in factual elements that are directly related to Swiss law, such as the Swiss nationality of the persecuted or injured party, the commission of the offense on Swiss territory, or the prosecution of the offense in Switzerland. This also appears to be correct for current law, but calls for justification and some clarification. If there is a real connection to Swiss criminal jurisdiction, the act may be punishable under Swiss law not only hypothetically, but in reality; there is therefore no need for the change in tense and use of the subjunctive (“would be punishable”), or the latter appears to be imprecise. However, in such a case, the lack of change in tense may obscure the fact that the requesting state may (1.) not have a connecting factor for its criminal jurisdiction that is recognized under international law (e.g., if it (N. 49), it may obscure the fact that the requesting state may (1.) not have a point of connection for its criminal jurisdiction that is recognized under international law (e.g., if it prosecutes a theft committed in another state by a Swiss citizen against a citizen of another state) or (2.) may have such a point of connection, Swiss law does not itself use this point of connection (e.g., domestic residence of the perpetrator), or (3.) has defined the scope of protection of its criminal offenses more broadly than Swiss law (e.g., by also criminalizing aiding and abetting [cf. Art. 305 SCC] to the detriment of foreign, in this case Swiss, jurisdiction). In the first case, extradition must be refused simply because Art. 32 IMAC requires the requesting state to have jurisdiction under international law; even independently of this, criminal proceedings that violate international law – especially those without a connecting factor – must not be encouraged. In the second case, the principle of reciprocity argues against extradition (which, of course, does not establish double criminality, cf. N. 21). And in the third case, too, it may seem strange that the act would not be punishable in Switzerland if the facts were applied mutatis mutandis. Nevertheless, in these latter two cases, double criminality should be affirmed and extradition should be possible, because the act, as it actually occurred, is also punishable under Swiss law and therefore punishable according to Swiss standards, and there is therefore a (even special) interest on the part of Switzerland in supporting the foreign criminal proceedings (cf. on the rationale for double criminality N. 22 f.). However, depending on the relevance of the facts to Switzerland, there may be an overriding interest on the part of Switzerland in prosecuting the case domestically, in which case extradition must be refused (cf. N. 65, 67).
c. Scope of the examination – positive determination
48 As we have seen, dual criminality must be examined in relation to every fact for which extradition has been requested (N. 29). This also applies to the minimum maximum penalty, which can only be dispensed with on the basis of Art. 36 para. 2 IMAC (cf. N. 30).
49 In practice, the accuracy of the subsumption under foreign law presented in the request is not examined in detail, even though Switzerland, as the requested state, is entitled to do so. This can be explained by the principle of trust (N. 12), but also by the function of double criminality, which is intended to protect the domestic value system and domestic interests (N. 22 f.); the focus of the review should therefore be on criminal liability under Swiss law. Domestic legal practitioners are also more familiar with domestic law; for this reason, too, a certain degree of restraint seems appropriate when assessing the foreign legal situation. However, a cursory examination should still be carried out, consisting of a comparison of the foreign legal provisions attached to the request (N. 10) with the facts of the case and the question of whether the subsumption in the request appears at least reasonable. As Garré points out, a “certain critical dialectic [...] is necessary, otherwise the mutual legal assistance procedure would be degraded to an automatic approval procedure.” If the lack of criminal liability under foreign law is obvious, the request appears to be an abuse of law. For foreign criminal jurisdiction over the offense as a prerequisite for extradition in particular, see OK-Payer, Art. 32 IMAC N. 23 ff.
50 Specifically, with regard to Swiss law, it must be examined whether the converted (N. 45 ff.) facts of the case would fulfill the objective and subjective elements of the offense (or, in the case of negligent offenses: the elements of the offense; for specific subjective elements, see N. 58) of a local criminal provision that threatens a custodial sentence of at least one year (N. 33 ff.). This presupposes that Switzerland has criminal jurisdiction over the offense, which must also be examined accordingly.
51 If the hypothetical fulfillment of the elements of the offense is affirmed, it must then be examined whether a justification would apply under Swiss law. Previous case law takes a different view and seeks to limit itself to examining the fulfillment of the elements of the offense (known as the abstract method). The Federal Council also appears to have assumed a correspondingly limited double criminality. This position could perhaps be supported by the German wording of Art. 35 para. 1 lit. a IMAC, which only refers to “is liable to ... a penalty ...”. However, the French and Italian versions of the law (“est frappée d'une sanction ...”, “è passibile di una sanzione ...”) already appear to be broader in scope, and para. 2 refers to “punishability” (‘punissable’, “punibilità”) in all three official languages. The decisive factor must be the teleological element of interpretation: mutual criminal liability is intended to protect domestic values and interests (see N. 22 f.); However, it would be difficult to reconcile this with, for example, extraditing someone acting in justifiable self-defense. It is true that case law must be agreed with in that the authority deciding on mutual legal assistance does not, in principle, have to assess the evidence or reconstruct the facts of the case independently (see N. 9 ff.). However, if the foreign description of the facts already reveals a justification according to the standards of Swiss law (which is likely to be rare), this must be taken into account. Incidentally, it should be noted that the abstract method also raises the problem of having to decide the controversy as to whether consent has the effect of excluding the elements of the offense (and thus also excluding double criminality) or “merely” justifying it.
52 Grounds for exclusion of guilt must then be examined (on the basis of the description of the facts in the request) due to the rationale of mutual criminal liability (N. 22 f.) and, if applicable, preclude extradition if they also stand in the way of both a penalty and a measure involving deprivation of liberty. This applies in particular to the lack of criminal responsibility (cf. Art. 3 Federal Act on Juvenile Criminal Law [JStG] e contrario), unavoidable error of law (Art. 21 sentence 1 SCC) or excuses under Art. 16 para. 2 and Art. 18 para. 2 SCC, but not to a serious mental disorder which, although it may exclude guilt (capacity for guilt) and thus punishment (Art. 19 para. 1 SCC), allows for a measure involving deprivation of liberty under Art. 59 or Art. 64 para. 1 lit. b SCC.
53 In terms of a definition, it can therefore be stated that criminal liability under Swiss law within the meaning of Art. 35 para. 1 lit. a IMAC exists if the converted facts are to be assessed as an offense that is unlawful and culpable or non-culpable but may give rise to a measure involving deprivation of liberty.
d. Factors not to be examined. Including those expressly excluded by para. 2
54 It is not necessary to examine whether the relevant criminal provisions of the two legal systems are identical or similar or protect the same legal interest. Art. 35 IMAC does not require such similarities, but rather considers it sufficient that the act described in the request is punishable under the laws of both states (so-called identity of the offense). Accordingly, the examination of double criminality does not require a comparison of foreign and domestic criminal law provisions.
55 Some authors have criticized this view and have advocated the stricter requirement of so-called norm identity. This does not, as the term might suggest, require identical wording and formulation of the provisions, but merely that the respective criminal offenses have the same or similar protective purpose. On the one hand, it is argued that foreign proceedings only deserve support if they pursue the same objectives as domestic criminal law, and not simply when there is accidental double criminality. On the other hand, without norm identity, there is a fear of excessive punishment abroad if, for example, insulting the head of state is a simple offense against honor under Swiss law, but a crime under foreign law. The former appears understandable in some cases: it is certainly possible to imagine cases in which the foreign motives for criminalization and punishment contradict the domestic value system. For example, when the injury and killing of people is criminalized not to protect the life and limb of those affected, but to protect the “property” of an absolutist ruler. However, the punishment (in itself) of such acts remains legitimate according to the values and interests reflected in Swiss criminal law (N. 22 f.). In such cases, it is not uncommon to question whether the person being prosecuted will receive a trial in accordance with human rights in the foreign country (if not, this is an independent ground for exclusion from extradition). However, cases in which the different designation of the protected interest does not conflict with local values and is based, for example, on historically developed peculiarities of the respective legal system or even simply on a different balance of power in doctrine are likely to be more common than blatant cases of the type described. It would also present the extradition or mutual legal assistance decision-maker with a difficult task to determine the scope of protection of the relevant criminal law provisions of both states for each request; even determining the legal interest protected by a Swiss criminal offense can be controversial. It would also be generally inappropriate for the Swiss authorities to pass judgment on the criminal policy of the requesting state. As for the second argument put forward in favor of norm identity—the risk of excessive penalties abroad if norm identity is waived—it should be noted that the requirement of norm identity is not a suitable means of countering such differences in penalties anyway, even if the aim of protection is the same, much harsher penalties may be imposed abroad (e.g., in the US). A more appropriate means would be a requirement (Art. 80p para. 1 IMAC) in individual cases whereby the requesting state must give assurances that it will not request, impose or enforce any penalty above a specified upper limit that is still acceptable under Swiss law or the ECHR. In light of the above, it seems preferable to determine the scope of double criminality based on the identity of the offense.
56 Furthermore, according to Art. 35 para. 2 lit. a IMAC, special forms of guilt and conditions of criminal liability are not to be taken into account when assessing criminal liability under Swiss law. This means that, for criminal liability under Swiss law to be affirmed, it is not necessary for special forms of guilt and conditions of criminal liability required by Swiss criminal offenses to be present. This restricts the criterion of double criminality and broadens the range of circumstances in which extradition is permissible.
57 The special conditions of criminal liability are to be understood as the objective conditions of criminal liability. In the literature, a differentiation is proposed depending on whether the condition results from procedural peculiarities (such as the opening of bankruptcy proceedings in the case of bankruptcy offenses [Art. 163 ff. SCC]) or from criminal policy and legal dogmatic reasons (such as in the case of brawling or assault [Art. 133 f. SCC], where criminal liability only begins with the injury or killing of a person, or in the case of breach of the peace [Art. 260 SCC], which presupposes acts of violence). Art. 35 para. 2 lit. a IMAC should only apply to objective conditions of criminal liability of the former type, while those of the latter type concern “the very definition of punishable wrongdoing” and must therefore be taken into account when assessing criminal liability. However, this is contrary to the classic concept of objective conditions for criminal liability, according to which these conditions only concern the need for punishment (penal economy) and, for example, a fight or assault is still a culpable wrongdoing or punishable even if there is no injury or death. This classic understanding avoids the conflict with the principle of guilt that would arise if one assumed that the perpetrator is being punished for something that is not covered by his guilt (in the old sense). Instead, according to the classical conception, the perpetrator is punished only for his culpable act, and the circumstance that absolves him of guilt—i.e., the objective condition of punishability—only has the effect of limiting punishability or favoring the perpetrator. The offender has therefore already deserved the punishment through his act; he is only “lucky” if the condition does not occur and the state therefore refrains from intervening. Since the objective conditions for criminal liability do not (co-)define the punishable wrongdoing, their exclusion by Art. 35 para. 2 lit. a IMAC appears justifiable and does not require restriction. However, it is still possible to discuss – although not at this point – whether the traditional attribution of individual characteristics to the objective conditions for criminal liability is justified or whether another interpretation is more appropriate.
58 The concept of special forms of guilt refers to the special intentions, motives, or characteristics of attitude required in individual cases; it is therefore based on the outdated, so-called psychological concept of guilt in causal action theory. Often, such special subjective elements do not constitute criminal liability in themselves, but merely qualify, privilege, or replace one offense with another (see, for example, Art. 111 and 112 SCC [special ruthlessness]; Art. 142 para. 1 and 2, Art. 158 no. 1 para. 1 and 3 SCC [intention to enrich oneself]; Art. 141 and Art. 137 SCC [intention to appropriate]). In these cases, the basic or residual offense usually already reaches the minimum threshold of Art. 35 para. 1 lit. a IMAC (cf. N. 33), so that extradition would be permissible even without the provision of Art. 35 para. 2 lit. a IMAC. However, the situation is different with regard to those specific subjective elements that constitute the basis for criminal liability (e.g. Art. 115 SCC [selfish motives]; Art. 260quinquies [intention to finance terrorism]; Art. 261 para. 2 and 3, Art. 262 no. 1 para. 2 SCC [malice]). If these are counted among the special forms of guilt within the meaning of Art. 35 para. 2 IMAC, this means that when examining double criminality, criminal liability under Swiss law must also be affirmed if these elements are absent in the specific case. However, this contradicts domestic assessments and interests, i.e., the rationale behind the requirement of double criminality (see N. 22 f.). If, for example, Art. 115 SCC only criminalizes incitement and assistance to suicide when the act is motivated by selfish motives, then these motives justify the punishment; according to local assessments, anyone who helps a suffering person to take their own life out of compassion does not deserve punishment. Extraditing them to another country that has criminalized any assistance in suicide regardless of the perpetrator's motivation would contradict this assessment, and Switzerland would have no interest in supporting these foreign proceedings. In order to prevent this conflict, Art. 35 para. 2 lit. a IMAC must be interpreted teleologically and restrictively: the “special forms of guilt” within the meaning of this provision are to be understood only as those intentions, motives, and characteristics of attitude that do not constitute grounds for criminal liability at all. This means that the restriction in Art. 35 para. 2 lit. a IMAC is now of very little practical significance: it only allows extradition in addition where the act would solely fulfill a basic or catch-all offense below the threshold of Art. 35 para. 1 lit. a IMAC, but where there is still a qualifying or alternative offense that reaches the threshold and is characterized by a special subjective element. Art. 35 para. 2 lit. a IMAC then allows criminal liability to be affirmed under this stricter offense, even though the special subjective element it requires is missing. The interpretation proposed here also appears permissible in view of the fact that the Federal Council's statement on Art. 35 para. 2 lit. a IMAC was made a long time ago and did not discuss the issue under consideration here, but may have overlooked it.
59 According to Art. 35 para. 2 lit. b IMAC, when assessing criminal liability under Swiss law, the conditions of the personal and temporal scope of the SCC and the Military Criminal Code (MStG) with regard to the criminal provisions on genocide, crimes against humanity, and war crimes are not to be taken into account. For these most serious crimes (all three core crimes under international law), special rules that are as conducive as possible to prosecution and mutual legal assistance should apply, which is also reflected in the exclusion of the defense of political offense under Art. 3 para. 2 IMAC. On the basis of Art. 35 para. 2 lit. b IMAC, in particular, there is no need to examine the personal applicability of the MStG, the scope of which varies depending on whether it is peacetime, active service or wartime. The exclusion of the rules on temporal applicability (Art. 2 SCC, Art. 2 MStG) implies that the prohibition of retroactivity does not apply, which is not the case anyway in the context of the examination of criminal liability under Swiss law (as the law of the requested state) (see N. 44).
60 No attention should then be paid to concurring offenses: if a set of facts fulfills several criminal offenses under the law of the requesting state, but only one or several under Swiss law, one of which would supersede the others, then double criminality exists and extradition can be granted for all criminal offenses provided that the relevant or remaining Swiss offense reaches the minimum threshold of Art. 35 para. 1 lit. a IMAC. If, under Swiss law, only a privileged offense were applicable, the penalty for which, in contrast to the basic offense, does not reach this threshold, the required minimum maximum penalty is not met and extradition is inadmissible, unless the privileged offense is characterized solely by special subjective elements that are irrelevant under Art. 35 para. 2 lit. a IMAC (see N. 58).
61 Furthermore, any grounds for mitigation of punishment are irrelevant. This is because grounds for mitigation of punishment merely allow the minimum penalty to be reduced and another offense to be recognized (Art. 48a SCC); However, it does not force a shift in the penalty range below this threshold in the case of an offense that reaches the threshold of Art. 35 para. 1 lit. a IMAC. The only exception to this is if the offense carries a maximum prison sentence of exactly one year; in the case of mandatory mitigation of punishment, this can no longer be imposed. However, in such a (rare) case, with regard to Art. 35 para. 2 lit. a IMAC a maiore ad minus, it may be appropriate to exclude the reduction of the sentence when examining criminal liability under Swiss law.
62 Finally, the existence of procedural requirements, such as a criminal complaint or authorization, does not need to be examined. The statute of limitations, the nature of which is admittedly controversial, is also not examined from the perspective of criminal liability; it is the subject of a separate provision (Art. 5 para. 1 lit. c IMAC).
e. Intensity of the examination
63 According to case law, double criminality or the examination of criminal liability under Swiss law is only subject to a prima facie examination. This means that a meticulous, detailed examination is not necessary and difficult legal questions may be excluded. In our opinion, however, the rationale behind double criminality (N. 22 f.), which is aimed at protecting domestic values and interests, as well as the expertise of the domestic authorities in domestic law (cf. N. 49) argue in favor of subjecting the examination of criminal liability under Swiss law to stricter requirements than the assessment of criminal liability under foreign law, where a reasonableness test is sufficient (cf. N. 49). Accordingly, it should be required that the conduct would probably be punishable under Swiss law (within the meaning of the above clarifications [N. 50 ff.]). A degree of uncertainty can be accepted in view of the many unresolved controversies regarding the correct interpretation of criminal provisions and the sometimes lacking or fluctuating case law of the Federal Supreme Court.
C. Negative condition: lack of Swiss jurisdiction (para. 1 lit. b)
64 As a negative condition for extradition, Art. 35 para. 1 lit. b IMAC stipulates that the offense must not be subject to Swiss jurisdiction. Art. 36 para. 1 IMAC makes an important exception to this rule in cases where special circumstances, namely the possibility of special social reintegration, justify extradition (despite Swiss jurisdiction). Case law recognizes further “special circumstances,” so that, for example, for reasons of procedural economy and to enable the joint assessment of several perpetrators abroad if Swiss jurisdiction exists.
65 Swiss jurisdiction is determined in particular by Art. 3 ff. SCC; further grounds for jurisdiction can be found in the Special Part of the SCC and in ancillary criminal law. The wording of Art. 35 para. 1 lit. b IMAC seems to exclude extradition in the case of any Swiss jurisdiction, i.e., regardless of whether it is based on the principle of territoriality, the principle of protection, or the active principle of personality, etc. However, the Federal Council's message makes it clear that “jurisdiction” refers only to jurisdiction based on the principle of territoriality. Accordingly, Art. 35 para. 1 lit. b IMAC is to be interpreted as being limited to territorially based Swiss jurisdiction (Art. 3 para. 1 in conjunction with Art. 8 SCC). In addition to the historical element of interpretation, there is also the teleological element: Swiss criminal jurisdiction based on the principle of territoriality is generally the most important for the country; it would be contrary to the principle of mutual legal assistance if Switzerland were not allowed to extradite to the country where the crime was committed, for example, in cases of domestic criminal jurisdiction based on the passive principle of personal jurisdiction (Art. 7 para. 1 SCC). The systematic element of interpretation also supports the aforementioned restrictive interpretation of Art. 35 para. 1 lit. b IMAC. This is because various provisions of criminal law relating to acts committed abroad require – usually as a prerequisite for prosecution – that the offender not be extradited (e.g., Art. 7 para. 1 lit. c SCC). However, if Art. 35 para. 1 lit. b IMAC also excluded extradition in cases of extraterritorial Swiss criminal jurisdiction, the interaction of these provisions would mean that Switzerland would always have to prosecute itself and only extradite on a subsidiary basis. This would neither be the intention of the legislature nor compatible with the practice of the Federal Supreme Court of offering extradition first. And insofar as the relevant provisions of criminal law even stipulate non-extradition as a prerequisite for domestic criminal jurisdiction (and thus for jurisdiction) and not merely as a prerequisite for prosecution – namely in the case of substitute criminal jurisdiction (Art. 7 para. 2 lit. a SCC) – these provisions would become circular if Art. 35 para. 1 lit. b IMAC also referred to extraterritorial jurisdiction. This is because, in order to establish criminal jurisdiction under Art. 7 para. 2 lit. a SCC, the offender would not have to be extradited, which, according to Art. 35 para. 1 lit. b IMAC, is not the case under criminal jurisdiction under Art. 7 para. 2 lit. a SCC.
66 Various international treaties expressly stipulate that the requested state may refuse extradition if it has criminal jurisdiction over the matter itself based on the principle of territoriality (known as the prosecution privilege of the requested state), for example in Art. 7 no. 1 of the EAÜ. This is an optional ground for refusal.
67 In the case of Swiss jurisdiction based on the principle of national security (Art. 4 para. 1 SCC; provided that the perpetrator is foolish enough to enter the country after committing the offense) or on the flag or registration principle, which is similar to the principle of territoriality, refusal of extradition in favor of domestic prosecution may also appear appropriate. However, this does not require these cases to be subsumed under Art. 35 para. 1 lit. b IMAC, because extradition under IMAC is optional anyway (N. 7) and can already be refused in such a case with reference to Switzerland's own criminal interest.
Acknowledgements:
The author would like to thank the editors of the online commentary and attorney Dr. Giuseppe Aufiero for his helpful comments.
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Materials
Amtliches Bulletin der Bundesversammlung, 1977, Bd. 5, Wintersession, Ständerat, Sitzung vom 29.11.1977, Geschäft Nr. 76.033, S. 612–637, abrufbar unter https://www.amtsdruckschriften.bar.admin.ch/viewOrigDoc/20006302.pdf?id=20006302, besucht am 24.8.2025.
Amtliches Bulletin der Bundesversammlung, 1979, Bd. II, Sommersession, Nationalrat, Sitzung v. 12.6.1979, Geschäft Nr. 76.033, S. 647–664, abrufbar unter https://www.amtsdruckschriften.bar.admin.ch/viewOrigDoc/20007652.pdf?ID=20007652, besucht am 24.8.2025.
Amtliches Bulletin der Bundesversammlung, 1979, Bd. II, Sommersession, Nationalrat, Sitzung v. 21.6.1979, Geschäft Nr. 76.033, S. 845–865, abrufbar unter https://www.amtsdruckschriften.bar.admin.ch/viewOrigDoc/20007686.pdf?ID=20007686, besucht am 24.8.2025.
Botschaft des Bundesrathes an die Bundesversammlung zum Entwurf des Bundesgesetzes betreffend die Auslieferung gegenüber dem Ausland vom 9.6.1890, BBl 1890 III 316 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/1890/3_316_193_/de, besucht am 17.8.2025.
Botschaft des Bundesrates an die Bundesversammlung über die Genehmigung von sechs Übereinkommen des Europarates vom 1.3.1966, BBl 1966 I 457 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/1966/1_457__/de, besucht am 24.8.2025.
Botschaft des Bundesrates an die Bundesversammlung zu einem Bundesgesetz über internationale Rechtshilfe in Strafsachen und einem Bundesbeschluss über Vorbehalte zum Europäischen Auslieferungsübereinkommen vom 8.3.1976, BBl 1976 II 444 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/1976/2_444_430_443/de, besucht am 17.8.2025.
Botschaft zur Revision der Bundesrechtspflege vom 28.2.2001, BBl 2001 4202 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/2001/731/de, besucht am 17.8.2025.
Bundesgesetz über internationale Rechtshilfe in Strafsachen (IRSG), Entwurf, BBl 1976 II 491 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/1976/2_444_430_443/de, besucht am 17.8.2025.
Instructions
Bundesamt für Justiz BJ, Die internationale Rechtshilfe in Strafsachen, Wegleitung, 9. Aufl., Bern 2009 (Rechtsprechung Stand Mai 2010), abrufbar unter https://www.rhf.admin.ch/dam/rhf/de/data/strafrecht/wegleitungen/wegleitung-strafsachen-d.pdf, besucht am 20.8.2025.