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- Art. 633 CO
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- Art. 734f CO
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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. 2 PRA
- Art. 3 PRA
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- Art. 1 IMAC
- Art. 1a IMAC
- 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. 48 IMAC
- Art. 54 IMAC
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- Art. 63 IMAC
- Art. 67 IMAC
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- Art. 74 IMAC
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- Art. 80d IMAC
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- Art. 80k IMAC
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- Vorb. zu Art. 1 FADP
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- Art. 2 FADP
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- 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
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- Art. 31 para. 2 lit. e FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 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. 2 AMLA
- Art. 2 para. 3 AMLA
- Art. 3 AMLA
- Art. 7 AMLA
- Art. 7a AMLA
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- Art. 38 AMLA
FEDERAL CONSTITUTION
FEDERAL ACT ON DIRECT FEDERAL TAX
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
FEDERAL ACT ON MEDICINAL PRODUCTS AND MEDICAL DEVICES
TAX HARMONISATION ACT
- I. Content of the Arrest Warrant (Art. 48, para. 1, IMAC)
- II. Remedies (Art. 48(2) IMAC)
- Bibliography
I. Content of the Arrest Warrant (Art. 48, para. 1, IMAC)
1 Art. 48 IMAC specifies the content of an arrest warrant for the purpose of extradition. This provision gives concrete effect, in the context of extradition detention, to the guarantee set forth in Art. 5, para. 2, of the ECHR, according to which any person who is arrested must be informed why they have been deprived of their liberty.
2 The arrest warrant must contain at least the following elements:
information regarding the identity of the person sought;
information regarding the alleged offenses and/or the decision to be enforced;
the name of the authority that submitted the request;
a statement that extradition is being requested;
a statement regarding available remedies;
a statement regarding related rights.
A. Details of the Facts (Art. 48(1)(a) IMAC)
3 Art. 48(1)(a) IMAC provides that the arrest warrant must contain details “regarding the facts with which the person subject to extradition is charged.”
4 This requirement is clarified in Art. 10(2) of the EIMP Implementing Ordinance, according to which the description of the facts must specify, at a minimum, the place, date, and manner in which the offense was committed.
5 These provisions are intended to ensure that all necessary information is provided to enable the person concerned to exercise their right to an effective defense at this stage.
6 Above all, this entails the obligation to briefly set forth the charges on which the foreign authority bases its request for international cooperation. Federal case law holds that an incomplete description of the offenses in the arrest warrant would not affect the legality of the detention, a position consistent with that adopted by the European Court of Human Rights (ECHR). This is explained in particular by the fact that the person concerned and their counsel have the right to access the case file, which contains documents setting forth the missing information.
7 We are of the opinion that the text of Art. 48(1)(a) of the IMAC contains a gap, since its wording refers only to extradition for the purpose of prosecuting “acts of which the person is accused” and not to extradition for the enforcement of a sentence (Art. 2(1) of the Extradition Convention). In this second scenario, in order to ensure the right to an effective defense, we are of the opinion that the arrest warrant must specify the decision whose enforcement is sought.
B. Identification of the authority submitting the request (Art. 48, para. 1, subpar. b, IMAC)
8 Decisions based on Art. 47 IMAC must identify the foreign authority that initiated the request for cooperation.
C. Statement that extradition is requested (Art. 48(1)(c) IMAC)
9 According to Art. 5(1)(f) of the ECHR, deprivation of liberty for the purpose of extradition can be justified only by the fact that proceedings are pending.
10 An arrest warrant may therefore be issued only if there is a formal extradition request from the requesting State or, at the very least, a request for search or arrest within the meaning of Art. 42 of the IMAC, in which the foreign authority has expressed its intention to subsequently file an extradition request. This point must be specified in the arrest warrant.
D. Information on the Right to Appeal and Related Rights (Art. 48(1)(d) IMAC)
11 The legislature has stipulated that the arrest warrant must mention the existence of a right to appeal—specifically, the appeal procedure, the appellate authority, and the deadline for filing an appeal— and the right to be assisted by a legal representative.
12 The use of the term “legal representative” (Rechtsbeistand) confirms that there is no monopoly on representation for attorneys in the field of extradition, just as there is none in the field of asylum. The person subject to an arrest warrant may therefore be represented in the extradition proceedings by a person of their choice.
13 Art. 48(1) of the IMAC contains a gap due to the failure to mention in the decision the right of the person concerned to be assisted by an interpreter, as well as the right to have the decision communicated in a language they understand. These safeguards stem from international law. They are essential elements for the effective exercise of procedural rights, just like the right to legal representation, and should therefore be mentioned in the arrest warrant. It should be noted that the supplementary provisions of Swiss law provide for the appointment of an interpreter, but only during the initial hearing, at which time “the person subject to extradition proceedings is provided with an explanation of the extradition procedure in a language they understand.”
14 The right to have one’s consular post notified and to communicate with it (Art. 16 OEIMP) constitutes another essential guarantee of information that is missing from the list in Art. 48(1) IMAC but must be guaranteed.
15 We are of the opinion that these rights should be expressly mentioned in the extradition warrant and guaranteed throughout the entire proceedings, so that the person may review the documents and the extradition proceedings prior to any hearing, by applying Article 68 of the Code of Criminal Procedure by analogy.
II. Remedies (Art. 48(2) IMAC)
16 Art. 5(4) of the ECHR provides for the right of any person deprived of liberty to have their detention reviewed promptly by a court. This right also applies to extradition detention and is reiterated in Art. 48(2) IMAC.
17 The corollary to this challenge is a request for immediate release: if the arrest warrant is annulled due to lack of legal basis or insufficient grounds, the release of the person must be ordered without delay.
18 If the Federal Office of Justice (FOJ) denies a request for release (Art. 50(3) of the IMAC), the person has a right of appeal under Art. 48(2) of the IMAC.
A. Appeal to the Federal Criminal Court
19 The issuance of an arrest warrant or the denial of a request for release may be appealed to the Complaints Chamber of the Federal Criminal Court.
20 The appeal has no suspensive effect.
21 The deadline for filing an appeal is 10 days from written notification of the arrest warrant, which generally occurs at the time the person is interviewed by the FOJ. This period begins to run even if notification occurs while the person is already in pretrial detention or serving a sentence, provided that the person is effectively notified of the decision. The 10-day deadline applies equally in the case of a seizure order, even if it is issued after the arrest warrant. If the deadline has expired, a seizure order may be challenged only in conjunction with the decision on extradition.
22 A person deprived of liberty has the right to obtain “promptly” a decision regarding the legality of extradition detention. The procedure to review the legality of detention must be conducted with particular speed, especially since the arrest warrant was issued by an administrative authority (OFJ) rather than by a court. The Complaints Chamber of the Federal Criminal Court must rule promptly, rejecting any requests for an extension from the authority, except under exceptional circumstances.
23 In the context of an appeal, the case law of the European Court of Human Rights (ECHR) requires the authorities to grant access to the case file. While the file need not necessarily be complete, it must contain sufficient information to enable an effective appeal.
24 According to the statutory text, only the person being prosecuted would have standing to appeal the arrest warrant. The standing to appeal of family members is not mentioned. On this point, a literal interpretation of Art. 48(2) of the IMAC does not appear to be consistent with the right to an effective remedy (Art. 13 of the ECHR). Indeed, the decision to deprive a person of liberty may directly infringe upon the right to family life (Art. 8 of the ECHR) of their family members, in particular that of any minor children, a cohabiting partner, and dependents. The European Court of Human Rights (ECHR) has notably recognized that “for a parent and their child, being together is a fundamental aspect of family life (…) . [D]omestic measures that prevent them from doing so constitute an interference with the right protected by Article 8 of the Convention.” Family members directly affected by a warrant must therefore have access to an effective remedy to challenge the measure and obtain its annulment or modification (Art. 13 ECHR). This implies recognizing that they have a protected legal interest in challenging the decision, as well as standing to appeal.
25 The appeal procedure is generally conducted in writing, although the law does not preclude the holding of a hearing. In the event of an appeal, if the Complaints Court must rule on matters concerning the character of the person concerned, that person should be able to be heard in person. There is no absolute right to a public hearing, but a public hearing may be required under specific circumstances.
26 The appellate authority is not required to rule on the merits of the extradition, but only on the legality and appropriateness of ordering a measure depriving the person of liberty. Consequently, the grounds for appeal that may be raised before this court are limited. In this regard, raising arguments regarding the merits of the extradition request (e.g., violation of the principle of dual criminality or the statute of limitations) does not oblige the Court to examine them prematurely at this stage, unless there are particularly serious circumstances that would render the detention unlawful. This is the case if the person can demonstrate that extradition is manifestly inadmissible (Art. 51(1) IMAC), insofar as one of the circumstances provided for in Articles 2 through 5 IMAC is undoubtedly met.
27 According to federal case law, formal defects that could vitiate the arrest warrant—such as a violation of the right to be heard during the proceedings—do not constitute grounds for release. This strict interpretation should be aligned with the position adopted by the European Court of Human Rights (ECHR), according to which lawful detention implies the absence of arbitrariness. Thus, a particularly serious procedural defect should lead to the annulment of the decision and the release of the person.
B. Appeal to the Federal Supreme Court
28 The decision of the Complaints Chamber of the Federal Criminal Court concerning pretrial detention for extradition may be appealed to the Federal Supreme Court, despite its incidental nature, when the case is of particular importance.
29 This is the case when the person can credibly allege that the proceedings violate their fundamental rights or when the case raises a legal question of principle. In this second scenario only, an appeal to the Federal Supreme Court may also be filed by the FOJ.
30 The Federal Supreme Court must also rule in accordance with the requirement of expedition; however, this requirement is less strict insofar as the appeal is against a decision rendered by a judicial body in proceedings offering adequate guarantees of a fair trial.
C. Referral to an International Body
31 An appeal against the decision of the Federal Supreme Court may be brought before an international body.
32 In particular, a case may be brought before the European Court of Human Rights (ECHR) for a violation of the prohibition against inhuman and degrading treatment (Art. 3 of the ECHR) —in connection with conditions of detention—violation of the right to liberty and security (Art. 5 of the ECHR), the right to respect for family life (Art. 8 of the ECHR), or the right to an effective remedy (Art. 13 of the ECHR).
33 A case may also be brought before the Committee Against Torture, for example, when pre-extradition detention is ordered on the basis of evidence submitted by the requesting State that was allegedly obtained through torture (Art. 15 CAT).
34 It is also possible to submit the case to the Committee on the Rights of the Child when the deprivation of liberty of a parent is ordered without giving “primary consideration” to “the best interests of the child” (Art. 3 CRC).
Bibliography
Aubry Girardin Florence, Commentaire de l’art. 84 LTF, in: Aubry Girardin Florence/Donzallaz Yves/Denys Christian/Bovey Grégory/Frésard Jean-Maurice (édit.), Commentaire de la Loi sur le Tribunal fédéral, Berne 2022.
Forster Marc, Commentaire de l’art. 48 EIMP, in: Niggli Marcel Alexander/Heimgarten Stefan (édit.), Basler Kommentar, Internationales Strafrecht, IRSG, GwÜ, Bâle 2015.
Ludwiczak Glassey Maria, Entraide judiciaire internationale en matière pénale, Précis de droit suisse, Bâle 2018.
Ludwiczak Glassey Maria/Moreillon Laurent (édit.), Petit commentaire, Loi sur l’entraide pénale internationale, Bâle 2024.
Zimmermann Robert, La coopération judiciaire internationale en matière pénale, Berne 2019.