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- Art. 6 FC
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- Art. 55 FC
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- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
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- Art. 123b FC
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- Art. 166 FC
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- Art. 11 CO
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- 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
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- Art. 32a PRA
- Art. 33 PRA
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- Art. 59a PRA
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- 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
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- 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
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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. Origin and purpose of the standard
- II. Acts of a predominantly political nature
- III. Military obligations
- Bibliography
I. Origin and purpose of the standard
1 The prosecution of political offences is at the origin of the first extraditions and the legislation of this mutual assistance procedure. For centuries, international cooperation in criminal matters, in the form of extradition, mainly, if not exclusively, concerned political figures or persons prosecuted for political offences.
2 This practice underwent an upheaval in the 19th century, when European states modified their approach by granting "special indulgence" to the "crimes of honest people". Scholars attribute this paradigm shift to the effects of the French Revolution (1789) and the recognition of Belgian independence (1830). The first exclusion of political offenses from extradition was thus included in the Franco-Belgian treaty of 1834. Swiss law incorporated this special protection into art. 10 of the LExtr in 1892, and then took it over in art. 3 para. 1 IMAC, when it came into force in 1981, extending this protection to all acts of mutual assistance.
3 The refusal of international judicial cooperation in criminal matters for political offences was subsequently incorporated into numerous multilateral instruments binding on Switzerland, such as the European Convention on Extradition and its first additional protocol, the European Convention on Mutual Assistance in Criminal Matters, as well as into bilateral treaties with Algeria, Argentina, Australia, Brazil, Canada, Chile, Colombia, Ecuador, Egypt, Fiji, Guyana, India, Kenya, Malawi, Mauritius, Namibia, New Zealand, Pakistan, Papua New Guinea, Paraguay, Philippines, Seychelles, Solomon Islands, Tanzania, Uganda, United States and Uruguay.
4 The rationale behind the exclusion of international judicial cooperation in criminal matters does not lie in the need for protection against the authoritarianism or arbitrariness of certain States. The exclusion of extradition for the prosecution of political offences is in fact provided for in numerous conventions binding member states of the Council of Europe and/or third-party states regarded as states governed by the rule of law. This protection is based on the conviction that, in exceptional circumstances, any State may have to prosecute a person for political offences, a prosecution with which third States have a duty not to associate themselves. What's more, when it comes to acts of a political nature that may be considered acts of aggression against the very existence of a State, the latter is both judge and party, which prevents it from treating the facts with the requisite impartiality and ensuring the individual a fair trial. As Fiolka puts it, this means not extraditing an accused person to a state that "bites like a wounded animal".
5 Finally, we would point out that the prohibition on prosecuting political offences does not only apply to perpetrators who are in Switzerland and wanted by a foreign state, but also to persons prosecuted by the Swiss authorities in proceedings requiring the cooperation of a foreign state. In such cases, the federal authorities refuse to issue a request for mutual assistance.
II. Acts of a predominantly political nature
6 Political offences, or acts of a predominantly political nature according to the definition chosen by Parliament, which exclude international cooperation in criminal matters, are not defined in positive Swiss or international law (A). This lacuna has been the subject of major doctrinal and jurisprudential developments, which have categorized three types of political offence (B). Swiss and international law have then added a number of exceptions (C).
A. No legal definition
7 Neither the Swiss parliament nor international treaties define what is to be considered a "political offence", both in terms of mutual assistance and extradition procedures and the prosecution of political offences by domestic courts.
8 This uncertainty leaves the administrative and judicial authorities with a wide discretionary power to determine what they consider to be a political offence, allowing decisions to be influenced by considerations that go beyond the strict legal framework. As a result, the concept of a political offence bears some similarities to the margin of appreciation granted to criminal prosecution authorities when deciding on the mitigating factor of "honourable motive" (CP 48 I a).
B. Types of political offence
9 In the absence of a legal definition, the notion of political offence has long been the subject of debate between two main theses: on the one hand, the objectivist thesis, which defines political offence on the basis of the nature of the reprehensible act, i.e. in particular the constituent elements of the offence; on the other, the subjectivist thesis, which focuses on the perpetrator's motive .
10 Federal case law has opted for a mixed approach, distinguishing between three different types of political offence: the absolute political offence (1), the relative political offence (2) and the fact associated with a political offence (3), all three of which may fall within the scope of art. 3 para. 1 IMAC.
1. Absolute political offence
11 An absolute political offence, also known as a purely political offence, a purely political offence or simply a political offence, is one which is directed exclusively against the institutional, political and legal organization of the State. The perpetrator's intention is to "destroy, modify or disturb the political order in one or more of its elements".
12 According to doctrine and case law, this "aim" ("Ziel") must be mentioned among the constituent elements of the offence, and must be exclusive. This must be clear from the qualification provided for under Swiss law, irrespective of the law or case law of the requesting state.
13 In this respect, the term "special purpose" is used in case law to refer to a particular intention on the part of the offender to perform a future action or obtain a certain result. For the sake of uniformity and consistency, the notion of "purpose" should be preferred to that of "aim". The pure criminal offence thus constitutes an "Absichtsdelikte".
14 Absolute political offences include measures aimed at the overthrow of the state, such as sedition, coup d'état and high treason, as well as acts of espionage or political intelligence. In the opinion of the Office of the Attorney General of Switzerland, the offences described in Titles 13 to 16 of the Swiss Penal Code are to be regarded as political offences.
2. Relative political offence
15 The second category concerns relative political offences, also known as complex offences or politically motivated offences.
16 According to long-standing case law, a relative political offence is an ordinary offence which acquires a predominantly political character in view of the circumstances in which it was committed, in particular the motive and the aim pursued.
17 This means proceeding in two stages, firstly by examining the circumstances surrounding the alleged offence, in order to determine whether the political elements outweigh those of ordinary law. Secondly, it will be necessary to examine whether there is an adequate relationship of proportionality between the means employed and the aim pursued.
a. Circumstances
18 In examining the political elements, account must be taken of both the internal circumstances (purpose, motive, etc.) and the external circumstances (conduct, way of acting of the perpetrator) of the act pursued.
19 With regard to internal circumstances, we suggest examining successively the purpose of the act (aim) and the reason that led the perpetrator to act (motive).
20 With regard to the purpose, it is necessary to consider the result sought by the perpetrator. In the past, federal case law has indicated that a political offence is conditional on the perpetrator's intention to bring about a political change. The act in question "must always have been committed in the context of a struggle for or against power", and must be "closely and directly connected, clearly and unmistakably, with the object of this struggle". This applies above all to acts aimed at overthrowing or otherwise seizing legislative or executive power. A political aim must also be accepted for acts intended to provoke or otherwise influence policy changes, including those aimed at denouncing the violation of fundamental rights and demanding their implementation, or obtaining recognition of new rights, without their perpetrators being motivated by the desire to seize legislative or executive power. This view appears to be shared by the Swiss Federal Prosecutor's Office, which has recognized that a politically motivated appeal not to pay military taxes should be classified as a "political offence".
21 As regards motive ("Beweggrund"), in criminal law this is defined as "the psychological cause of a manifestation of will, a cause which represents the expression of conscious or unconscious feelings, impulses or reasoning which have an immediate or mediate action on the action". In other words, the first question to be asked is whether the perpetrator was "motivated by a political intention", and then whether this intention exerted a "predominant influence on the act complained of". This involves determining whether the perpetrator was motivated by ideological convictions, or whether, on the contrary, the act was motivated by a desire for enrichment or revenge. In other words, it is a question of determining whether the act was motivated by altruistic sentiment or other convictions of general interest, or whether it responded to a selfish motive and personal interest on the part of the perpetrator.
22 The distinction between purpose and political motive is not always clear-cut, as these two elements often coexist, but not always. A case in point is the extradition request against a mercenary who is alleged to have worked to overthrow a foreign government, acting with a political aim but out of greed, i.e. without any political motive. Other examples include acts of reprisal or revenge against people who have betrayed a political organization, or worked for a deposed government, for political reasons, but without the aim of bringing about change.
23 For external circumstances that may attest to the political nature of the act, it will be necessary to examine the conduct complained of, in particular to determine the means employed and the objective chosen, as well as the link between the aim sought and the means employed. This question may be particularly important when dealing with acts of an artistic nature, such as performances that may offend religious feelings, symbols or the honor of a head of state.
b. Proportionality
24 The fact that an act is politically preponderant is not a sufficient condition to exclude international criminal cooperation. There must be a reasonable relationship of proportionality between the infringement of legally protected property and the aim pursued by the perpetrator. The more serious the infringement of other people's rights, in particular because of the degree of violence used, the more it will be necessary to demonstrate that the aim pursued could not have been achieved by a less incisive means. Conversely, the lesser the infringement and the damage caused, the more the political nature of the act will have to be accepted.
25 In this context, jurisprudence calls for the political regime of the State targeted by the acts complained of to be taken into account, as well as its possible authoritarian nature. Among the criteria mentioned by legal writers are the political, legislative and constitutional situation in the requesting State, its conception of fundamental rights and the independence and impartiality of its judiciary.
26 Long-standing case law holds that when the requesting State "happens to be a democratic country", the political offence exception must be accepted restrictively. In our view, this principle should now be qualified. As noted above (I.), the existence of a "democratic" regime in the liberal sense of the term does not preclude recognition of the political nature of an offence. Even a state with reliable institutions that generally operate in accordance with the rule of law may, in cases of existential urgency, be faced with a crisis situation that may justify the commission of political offences.
3. Related offence
27 The term "offence connected with a political offence" refers to an act punishable under ordinary law which is granted a certain degree of immunity because it was committed in parallel with a political offence (absolute or relative), generally in order to prepare, facilitate, ensure or conceal the commission of the latter, or even to subsequently procure immunity from it.
28 Jurisprudence and doctrine consider that such an act would not have a "political component". Others give as examples acts that do not have a direct causal link with the intended political aim, such as stealing weapons to prepare an armed insurrection or committing banditry to finance political activities. On the other hand, the mere fact that a common law offence has been committed in a certain political context, has had a "major impact on public opinion" and "aroused political agitation", or has been committed by a politically exposed person, is not such as to confer special protection on the act. The consequence of this imprecise definition is that the related offence is almost never used in practice.
29 In our view, a related political offence should refer to an act whose purpose is to enable or facilitate the commission of a political offence, whether absolute or relative, but which is committed by a perpetrator who does not act out of a political motive, but is guided by other considerations. For example, the perpetrator might have acted in exchange for remuneration, such as having sold arms or agreed to help political activists cross a border illegally, or a close relative of a wanted political activist, providing logistical support on the basis of personal ties rather than rallying to the cause. Depending on the circumstances, such a situation may give rise to doubts about the impartiality of the requesting state's courts, and thus justify a refusal to cooperate.
30 On the other hand, the mere risk of reprisals by the authorities following the commission of an offence under ordinary law is not such as to give it a political character, even as an incidental matter. Such a situation would have to be examined under art. 2 a and d IMAC.
C. Exceptions to depoliticization
31 Swiss law has provided for a depoliticization exception to apply to certain acts, on account of their seriousness, so that they cannot benefit from the protection afforded to political offences. This is the case for crimes under international law (1) and certain "terrorist" crimes (2). These exceptions are also provided for in the international law by which Switzerland is bound.
32 Application of the depoliticization exception does not imply denying the political nature of the act complained of, but rather depriving it of any special protection, by treating it in the same way as ordinary offences.
1. Crimes under international law
33 Amended following ratification of the Rome Statute of the International Criminal Court, Swiss law now excludes the protection afforded to political offenses when they constitute the most serious crimes under international law, i.e. genocide (IMAC 3 al. 2 let. a), crimes against humanity (IMAC al. 3 let. b) and war crimes (IMAC 3 al. 2 let. c).
34 The crime of aggression is not included in art. 3 para. 2 IMAC. This is due to its inclusion in the Statute of the International Criminal Court at a later stage, following lengthy debate, and to its failure to be transposed into Swiss positive law. As it stands, the crime of aggression is not a crime for which the qualification of political offence can be systematically refused. There have been several parliamentary interventions on this subject, and it seems likely that this offence will soon be incorporated into the penal code. Should this be the case, it would make sense to revise the IMAC at the same time, in order to include this offence in the list of international crimes for which the political nature does not exclude extradition.
2. Terrorism and other particularly reprehensible acts
35 Switzerland has ratified the European Convention on the Suppression of Terrorism (CERT), one of whose aims is to "reduce the scope of political offences as an exception to extradition".
36 Adopting the exclusion provided for in Art. 1 and 2 of the CERT, the Swiss Parliament amended Art. 3 IMAC to deny the protection afforded to political acts in the case of any act "particularly reprehensible in that the perpetrator, with a view to coercion or extortion, has endangered or threatened to endanger the life or physical integrity of persons, in particular by hijacking an aircraft, using mass extermination methods, triggering a disaster or taking hostages" (art. 3 para. 2 let. d IMAC). Parliament has chosen to broadly echo the terms used in art. 2 para. 1 CERT, by excluding political protection for certain acts, rather than a general exclusion of any act described as "terrorist". This wording reflects the difficulty of defining the notion of "terrorism" in such a way as to avoid it encompassing persons who might be considered "freedom fighters".
37 The protection of the political offence must be denied when three cumulative conditions are met: a willingness to extort or coerce, endangerment or the threat of endangerment, and - in the case of armed conflict - a violation of international humanitarian law.
a. Intent to extort or coerce
38 The purpose of the act must be "to exert coercion or extortion", as co-perpetrator or accomplice.
39 This excludes from the scope of art. 3 al. 2 let. d IMAC recruitment or public declarations of support for organizations using violence as a means to achieve their political aims. Mere membership of an organization described as "terrorist" does not further meet this condition.
b. Endangerment of life and limb
40 Only acts of coercion or extortion involving the endangerment of life or limb, or the threat of such endangerment, fall within the scope of art. 3 para. 2 let. d IMAC. On this point, the Swiss Parliament has rejected the possibility offered by the CERT of extending the depoliticization exception to acts of political violence directed exclusively against the freedom of individuals or acts against property, but creating collective harm for individuals.
41 An exception to this principle exists in the case of acts of financing, for which the classification as a political offence is excluded under the 1999 Convention for the Suppression of the Financing of Terrorism.
42 There must be a sufficiently close causal link between the conduct of which the person concerned is accused and the endangerment or threat of endangerment of life or limb. Such a solution also derives from respect for the principle of legality, which prescribes an extensive interpretation of the legal provisions on criminal matters against an accused person.
43 In Swiss case law, this has been reflected in decisions in favor of extradition of a person accused of having supplied arms and explosives to an Albanian-speaking separatist organization which was carrying out attacks in Serbia, of an ETA supporter accused of renting accommodation used as a cache for weapons and explosives, which were then used to carry out attacks, or of a member of the Kurdistan Workers' Party (PKK) for his involvement in the murder of a "village watchman" and for personally ordering the commission of murderous attacks.
44 Acts that do not involve the commission or threat of a violent act against persons do not fall within the scope of art. 3 para. 2 let. d IMAC. Such an interpretation is all the more necessary given that it is not uncommon for prosecutions for "terrorism" to be brought for acts relating to the exercise of fundamental rights, including within the Council of Europe. It is precisely in this context that the protection afforded to political offences comes into its own. The depoliticization exception for acts of "terrorism" should thus not apply to support given to a fugitive who has no intention of committing acts of violence, the publication of press articles referring to the activities of illegal organizations, actions providing material and legal support to people detained for terrorist offences or calling for their release, and participation in ceremonies in memory of members of an organization killed by the forces of law and order.
c. Violation of international humanitarian law
45 In the context of armed conflicts, including non-international ones, the mere use of violence to achieve a political goal, including against individuals, does not qualify as "terrorism" or a particularly reprehensible act. Where the act complained of takes place in such a context, the exception in art. 3 para. 2 let. d IMAC applies only to acts involving a violation of international humanitarian law.
III. Military obligations
46 Art. 3 IMAC also provides for another exception, less frequently invoked, excluding extradition for acts which constitute a violation of military or similar obligations, or acts directed against the national defense or defensive power of the requesting state (IMAC 3 I).
47 The wording chosen by the federal legislator differs from that adopted by the Council of Europe. The latter has chosen a negative definition, considering military offences to be those which do not constitute offences under ordinary law (CEExtr 4). The subsidiary nature of the IMAC is reiterated in art. 1 para. 1. Federal case law states that in the event of a conflict between national and treaty law, Swiss law must be interpreted in accordance with international law. When the request comes from an EEC member state, the negative definition therefore applies. In such a case, international cooperation is excluded for an offence whose constituent elements derive solely from a law relating to an obligation to serve, and which concerns conduct not punishable in an equivalent manner under general criminal law. Where the request comes from a third country, the positive definition will apply. We believe, however, that this contradiction should be resolved by adapting the wording of domestic law to that chosen by the Council of Europe.
48 In Swiss law, purely military offences are incorporated into the Military Penal Code. These include refusal to serve, desertion, treason and service in a foreign army, as well as drunkenness, mutilation and violation of military contractual obligations. As Parliament has chosen to include them in the Penal Code, espionage and political and military intelligence are not military offences, but may constitute political offences.
49 Violation of similar obligations is to be understood primarily as other obligations to serve. Judicial cooperation in criminal matters is therefore excluded for breaches of civil service or civil protection provisions. The question of the exclusion of cooperation in respect of infringements of the War Material Act, concerning goods for exclusive military use, has not yet been settled, but should be clarified.
50 Contrary to what is asserted by the majority of legal writers, and in line with long-standing case law, exclusion is determined by the nature of the act and not by the status of the perpetrator. A military offence is therefore not necessarily an offence in its own right ("echte Sonderdelikt"), which can only be committed by an individual with certain objective characteristics ("intraneus"). It is therefore not decisive whether the person being prosecuted is subject to a military or similar obligation, or would have been at the time of the offence, unless this is a constitutive element of the offence concerned. This question is particularly topical at a time when private companies are increasingly taking on military tasks in the context of national or international conflicts.
51 On the one hand, a person subject to an obligation to serve can, in principle, be extradited if the alleged offence falls within the scope of ordinary law. For example, homicide committed by a person in the exercise of his duty to serve does not constitute a military offence.
52 On the other hand, the Military Penal Code expressly provides that "civilians" may be subject to military criminal law. Civilians" can be prosecuted for the commission of certain military offences, such as breach of military duty, founding a group aimed at undermining military discipline, obstructing military service or insulting a member of the military. In such cases, the exception of art. 3 IMAC would apply.
53 In certain special cases, extradition should also be refused in application of the fundamental right to conscientious objection, based on the right to freedom of thought, conscience and religion. The aim is to prevent a person being prosecuted from being handed over to a State where, immediately after serving a sentence for an ordinary offence, he or she could be forced to perform military service on pain of being deprived of his or her liberty. The person must be able to justify that his or her opposition is based on a serious and insurmountable conflict between the obligation to serve in the army and his or her sincere and deep-rooted convictions, religious or otherwise. Not all convictions are protected, and it is legitimate to require the person concerned to provide proof of the seriousness of his or her convictions.
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