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- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
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- Art. 5 lit. f und g FADP
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- Art. 6 Abs. 6 and 7 FADP
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- Art. 18 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
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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. Introduction
A. General Provisions
1 Article 54 of the AIMP governs simplified extradition (also referred to as “surrender without formalities”), that is, the surrender of the person sought to the requesting State with their consent. In such cases, the person sought is surrendered without initiating a formal extradition procedure.
2 The option to choose simplified extradition is a right granted to the wanted individual. However, if extradition is requested simultaneously by multiple States for different offenses (concurrent requests), the simplified procedure does not grant the person to be extradited the right to choose the State to which they wish to be surrendered.
3 Since Swiss nationals cannot be extradited to a foreign authority without their consent (Art. 25 para. 1 in fine of the Constitution and Art. 7 para. 1 of the AIMP; see also Switzerland’s reservation to Art. 6 of the European Convention on Extradition), simplified extradition is the only means by which a Swiss citizen may be surrendered to a foreign state. In such cases, however, the FOJ merely informs the Swiss citizen in writing of the existence of an extradition request filed against them and asks for their consent to extradition (Art. 7(1) AIMP).
4 From the perspective of treaty law, simplified extradition is provided for in particular by the Third Additional Protocol to the European Convention on Extradition of November 10, 2010, and by Art. 18 of the Extradition Treaty between the Swiss Confederation and the United States of America of November 14, 1990.
B. Purpose and Origin of the Provision
5 The purpose of Art. 54 AIMP is to significantly expedite the extradition of the wanted individual. As a rule, in fact, under a simplified procedure, the surrender of the person sought takes place within a few days. This is because the simplified procedure allows for the extradition of the person concerned without waiting for the requesting State to submit a formal extradition request. Consequently, given that the detention of the person sought is the rule throughout the entire extradition procedure, while their release remains the exception, opting for simplified extradition allows the person concerned to avoid a long period of detention for extradition purposes.
6 The expedited procedure was already provided for in the Federal Act on Extradition to Foreign States of January 22, 1892. It was incorporated into the AIMP to address a practical need, since it is not uncommon for the person sought to clearly express, as early as the initial interrogation, a desire to be surrendered without delay to the requesting State and consequently to waive the formal procedure. At the time of the AIMP’s entry into force on January 1, 1983, Art. 54 was titled “surrender without formalities.” The new title of the provision (“simplified extradition”), as well as certain terminological clarifications in paragraphs 1 and 2, were introduced with the revision of March 29, 1995, which entered into force on February 1, 1997. Since then, the provision has not been further amended.
II. Commentary on the Article
A. Waiver of the Ordinary Extradition Procedure (para. 1)
7 Art. 54(1) AIMP provides that if, according to the record drawn up by a judicial authority, the person sought explicitly waives the application of the extradition procedure, the FOJ shall authorize the surrender, unless special considerations preclude it.
1. Consent to simplified extradition
8 The judicial authority, acting on behalf of the Extradition Section of the FOJ, interrogates the person sought first upon their arrest (hearing pursuant to Art. 54 AIMP) and then once the requesting State has submitted the formal extradition request (hearing pursuant to Arts. 52 et seq. AIMP). During both hearings, the judicial authority informs the person sought of the possibility of waiving the ordinary extradition procedure and invites them to state their consent to simplified extradition.
9 Consent to simplified extradition must be free and informed, meaning that the person sought must make the decision without being subjected to pressure and must be informed, in a language they understand, of the effects and scope of their consent. Implied consent is excluded. The consent of a Swiss citizen to extradition must in any case be provided in writing (Art. 7 para. 1 AIMP).
10 If the person sought consents to simplified extradition, they must be informed of the possibility of revoking their consent and of the time limit granted for that purpose (Art. 6, para. 1, first sentence, OAIMP). This notification is recorded in the minutes (Art. 6, para. 2, second sentence, OAIMP).
2. Authorization for surrender
11 If, during the interrogation, the person concerned expresses consent to simplified extradition, the FOJ must immediately authorize the extradition, in accordance with the requirement of promptness set forth in Art. 17a(1) AIMP, pursuant to which the competent authority shall process requests promptly and decide without delay. Authorization for surrender is granted within a few days or even on the same day.
12 The FOJ authorizes the surrender of the person sought by means of a written notice addressed to the Ministry of Justice of the requesting State, without issuing any decision subject to appeal. A copy of the authorization shall subsequently be provided to the extradited person and/or their legal counsel.
3. Grounds for refusing simplified extradition
13 Art. 54(1) in fine of the AIMP provides that special considerations may, in exceptional cases, preclude the FOJ from granting authorization for the surrender of the person sought. Since extradition with the consent of the person sought also constitutes an act of Swiss sovereignty, it is possible only if it is not contrary to Swiss public policy.
14 For this reason, before authorizing extradition based on the consent of the person concerned, the FOJ is nevertheless required to verify that the additional formal and substantive conditions for extradition are met, notably the requirement of double criminality—according to which the offense attributed to the person sought must also be punishable under Swiss law—and the statute of limitations. The FOJ is therefore not limited to verifying the existence of a valid declaration waiving the ordinary extradition procedure, but is also required to conduct a summary substantive review. The surrender of the person sought to the requesting State is authorized only if there are no specific grounds preventing extradition.
15 The legislature has refrained from providing an illustrative list of the special considerations that may preclude the granting of authorization for surrender. Legal doctrine identifies among the possible grounds for refusal, for example, absolute grounds for refusing mutual legal assistance under Articles 2 and 3 of the AIMP, the fact that the offense is not punishable in Switzerland, or, under certain circumstances, political considerations. Procedural defects or the risk of ill-treatment in the requesting State may also be taken into account. Finally, the existence of well-founded doubts regarding the free will of the person sought, or their waiver of the formal extradition procedure, may preclude authorization of surrender, provided that in such a case a legally valid waiver could not be deemed to exist.
16 With regard to the grounds for the inadmissibility of an extradition request pursuant to Articles 2 and 3 of the AIMP, these include, in particular, cases where the proceedings abroad do not comply with the principles of the European Convention on Human Rights or are aimed at prosecuting or punishing a person for their political opinions or for their membership in a particular social group, ethnic group, religion, or nationality (Art. 2 AIMP). Extradition is also excluded when the foreign criminal proceedings are motivated by political persecution of the person sought (Art. 3(1) AIMP); however, this protection does not apply in cases of genocide, crimes against humanity, war crimes, or other particularly reprehensible acts, notably in cases of terrorism (Art. 3(2) AIMP).
B. Revocation of the waiver of the ordinary extradition procedure (para. 2)
17 Pursuant to Art. 54(2) AIMP, the waiver of the ordinary extradition procedure may be revoked as long as the FOJ has not authorized the surrender. The decisive moment is when the authorization for extradition is sent to the Ministry of Justice of the requesting State.
18 Since authorization for extradition is issued without delay, the person sought generally has little time to revoke their consent to simplified extradition. For this reason, the person sought may request, during their hearing before the judicial authority, that they be granted a period of reflection to confirm their waiver of the formal extradition procedure. If, within that period, the person concerned has not revoked their consent to simplified extradition, the FOJ may authorize their surrender to the requesting State.
19 The revocation of the waiver of the formal procedure is final. If the person sought withdraws their consent to simplified extradition, the ordinary procedure resumes. In such a case, as a rule, the FO issues an arrest warrant for extradition, which is subject to appeal, and simultaneously invites the requesting State to submit a formal extradition request.
C. Effects and Conditions of Simplified Extradition (para. 3)
20 Pursuant to Art. 54 para. 3 AIMP, simplified extradition has the same effects as extradition and is subject to the same conditions. The requesting State must be made aware of this.
1. Principle of Speciality
21 The authorization for simplified extradition addressed to the Ministry of Justice of the requesting State must contain a reference to the conditions listed in Art. 38 AIMP, which establishes the reservation of speciality (Art. 21 OAIMP), according to which the extradited person may not be prosecuted, detained, or re-extradited to a third State for an act committed prior to their surrender and for which extradition was not authorized.
22 However, during their hearing before the judicial authority, the person being prosecuted is asked whether they waive the benefit of the principle of speciality (see Art. 38(2)(a) AIMP). Such a waiver is not an unusual scenario in practice, as the person sought who consents to simplified extradition often wishes to settle the criminal proceedings against them in the requesting State “once and for all” and quickly.
23 A particular aspect regarding the principle of speciality arises in extradition relations with the United States: Article 18 in fine of the relevant Treaty provides that, if simplified extradition is granted by Switzerland, the principle of speciality applies. The clarification contained in the last sentence of Article 18 of the Treaty implies, a contrario, that when simplified extradition is granted by the United States, the rule of specialty does not apply. However, since Article 16(4)(b) of the Treaty allows the U.S. authority to waive the principle of speciality in any case, the consent of the person sought to their simplified extradition does not result in a worsening of their situation.
2. Appeal against the authorization for surrender
24 As a rule, the granting of simplified extradition cannot be challenged, as the person to be extradited has no legally protected interest or standing to appeal, having himself consented to his surrender to the requesting State. Exceptionally, an appeal against the surrender authorization issued by the FOJ is possible when the person to be extradited claims a posteriori the absence of their consent, particularly in the event of an error. In such a case, the appellate authority must determine whether the FOJ acted in violation of the principle of good faith.
3. Subsequent Extradition Request
25 When the execution of the simplified extradition decision—i.e., the surrender of the person sought— is suspended pursuant to Art. 58(1) AIMP because the person concerned is the subject of criminal proceedings in Switzerland for other offenses, nothing prevents the FOJ, upon subsequently receiving a concurrent extradition request, from granting priority to extradition to the other requesting State.
4. Costs of the proceedings
26 The ordinary extradition procedure is subject to costs, and the private property of the person sought may be used to cover the costs provided it is not to be surrendered to the requesting State (Art. 62(2) AIMP). However, if the person sought consents to simplified extradition immediately after their arrest, the UGF may waive, for reasons of proportionality, the collection of costs incurred by the extradition proceedings.
The author is an Assistant Federal Prosecutor at the Office of the Attorney General of Switzerland in Bern. The author expresses his personal opinion, which is not binding on the authority for which he serves.
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Heimgartner Stefan, Auslieferungsrecht, Zurigo 2002.
Knodel Tanja/Glenck Johannes, Commento dell’art. 54 AIMP, in: Niggli Marcel Alexander/Heimgartner Stefan (edit.), Basler Kommentar, Internationales Strafrecht, IRSG, GwÜ, Basilea 2015.
Ludwiczak Glassey Maria, Entraide judiciaire internationale en matière pénale, Précis de droit suisse, Basilea 2018.
Ludwiczak Glassey Maria, Commento dell’art. 54 AIMP, in: Ludwiczak Glassey Maria/Moreillon Laurent (edit.), Petit commentaire, Loi fédérale sur l’entraide pénale internationale en matière pénale, Basilea 2024.
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Riedo Christof/Fiolka Gerhard/Niggli Marcel Alexander, Strafprozessrecht sowie Rechtshilfe in Strafsachen, Basilea 2011.
Zimmermann Robert, La coopération judiciaire internationale en matière pénale, 6a ediz., Berna 2024.
Materials
Messaggio del Consiglio federale all’Assemblea federale per una legge federale sull’assistenza internazionale in materia penale e per un decreto federale sulle riserve alla convenzione europea di estradizione dell’8 marzo 1976, FF 1976 II 443 (citato: Messaggio 1976).
Messaggio sul trattato di estradizione con gli Stati Uniti d’America del 21.11.1990, FF 1991 I 81 (citato: Messaggio 1990).
Messaggio concernente la modificazione della legge federale sull'assistenza internazionale in materia penale e della legge federale relativa al Trattato conchiuso con gli Stati Uniti d'America sull'assistenza giudiziaria in materia penale nonché un decreto federale concernente una riserva alla Convenzione europea di assistenza giudiziaria in materia penale del 29.3.1995, FF 1995 III 1 (citato: Messaggio 1995).
Ufficio federale di giustizia, Die internationale Rechtshilfe in Strafsachen, Wegleitung, 10a ediz., 2025, disponibile sul sito dell’UFG: https://www.rhf.admin.ch/rhf/de/home/strafrecht/wegleitungen.html (citato: UFG, Wegleitung).
Ufficio federale di giustizia, Esposto sulla procedura svizzera in materia d’estradizione del 25.5.2016, disponibile sul sito dell’UFG: https://www.bj.admin.ch/bj/it/home/sicherheit/rechtshilfe/strafsachen/auslieferung.html (citato: UFG, Esposto).