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- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
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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. Background
1 Article 55a of the IMAC is a new provision that has been in force since April 1, 2011. It was introduced into the IMAC when the Federal Act on the Coordination of Asylum and Extradition Procedures was adopted on October 1, 2010.
2 The adoption of this Act followed a series of high-profile cases involving extradition requests for asylum seekers. Following the recognition of refugee status or the granting of asylum, the extradition of alleged dangerous criminals had to be refused after the fact.
3 Faced with problems arising from the existence of simultaneous extradition and asylum proceedings, which had led to contradictory decisions, the former Head of the Federal Department of Justice and Police, Federal Councilor Eveline Widmer-Schlumpf, set up a working group on August 25, 2008, to study solutions to improve coordination between these two procedures and avoid contradictory decisions with regard to the principle of non-refoulement. This working group, made up of representatives of the Federal Criminal Court (FPC), the Federal Administrative Court (FAC), the Directorate of International Law of the Federal Department of Foreign Affairs (FDFA), and the Federal Department of Justice and Police (State Secretariat for Migration [SEM] and Federal Office of Justice [FOJ]), and was placed under the direction of the FOJ. On February 18, 2009, it submitted its final report with recommendations.
4 With a view to remedying the lack of coordination between asylum and extradition procedures (when they run in parallel) and contradictory decisions, the working group proposed opening up access to the Federal Supreme Court (FSC) in asylum matters. It also suggested that asylum procedures should be subject to the principle of expediency and that the authority concerned by a procedure should be required to take into account the file processed by the competent authority in the second procedure in order to ensure better coordination both at first instance (between the SEM and the FOJ) and at the appeal stage (between the FAC and the FPC) .
5 On June 29, 2009, Federal Councilor Eveline Widmer-Schlumpf opened the consultation on the preliminary draft law in the form of a hearing, which was scheduled to end on August 28, 2009. This consultation did not result in any changes to the preliminary draft law. On February 24, 2010, the Federal Council (FC) submitted the draft bill to Parliament, which adopted it without amendment. The strategy proposed by the working group thus led to the adoption on October 1, 2010, of the Federal Act on the Coordination of Asylum and Extradition Proceedings, which entered into force on April 1, 2011.
6 The purpose of this Act is to speed up asylum and extradition proceedings when extradition and asylum requests are pending simultaneously, to optimize the exchange of information between the FOJ and the SEM, and to avoid contradictory decisions by allowing the proceedings to be consolidated at the level of the Federal Supreme Court. The amendment led to the introduction of the new Article 55a into the IMAC and to the amendment of the Asylum Act of June 26, 1998 (AsylA) with the introduction of the new Articles 41a and 108a, which are the counterparts in the AsylA to Article 55a IMAC, as well as new paragraphs 4 of Article 37 and 5 of Article 109, which require the “rapid” processing of asylum decisions in cases of detention pending the extradition of the applicant. The amendment also led to the modification of the Federal Court Act (LTF) of June 17, 2005: Article 83(d)(1), which opens the way for public law appeals against asylum decisions made by the Federal Administrative Court (FAC) when they concern persons who are the subject of an extradition request filed by the State from which those persons are seeking protection; Article 93(2), first sentence, which stipulates that in matters of international mutual assistance in criminal matters and asylum, preliminary and incidental decisions cannot be appealed; Finally, Article 107(3), which releases the Federal Court from the obligation to issue a decision not to proceed within 15 days of the end of any exchange of written submissions when the extradition proceedings concern a person whose asylum application has not yet been the subject of a final decision that has entered into force.
7 For the sake of completeness, we should mention other relevant provisions concerning the coordination of asylum and extradition, such as Articles 11a(3) of the IMAC and 9(c)(1) of the Ordinance on the Central Migration Information System (CIS Ordinance) of April 12, 2006, which guarantee SEM access to personal data stored in the FDJP's data management system for the area of mutual legal assistance and grant the FDJP access to relevant data in the SEM's SYMIC database. Another special regulation concerning asylum seekers applies to spontaneous transmission within the meaning of Article 67a of the IMAC, which cannot be carried out in the case of criminal offenses committed by this group of persons.
II. Context
8 In the systematics of the IMAC, Article 55a is found in the second part devoted to extradition, more specifically in the 5th section of Chapter 2 devoted to the decision on extradition in the context of extradition proceedings. Thus, if we stick solely to the structure of the law, it would only be at the stage of the extradition decision that the FOJ would have to apply Article 55a IMAC and therefore take the asylum file into account. However, Article 43 IMAC requires the FOJ to examine ex officio the foreign search and arrest request. This examination covers the formal and material conditions as well as the grounds for inadmissibility of the request. Thus, under the ex officio principle, the FOJ must examine ex officio whether there are grounds for manifest inadmissibility of extradition that would prevent arrest and extradition (Articles 2 to 5 of the IMAC), regardless of the complaints raised by the person subject to extradition. Article 55a IMAC thus gives concrete expression to the principle of ex officio and must also be applied when the FOJ receives a request for arrest and not only at the stage of the decision on extradition (see also below N. 11 and N. 19).
III. Commentary
A. General
9 Under the principle of non-refoulement enshrined in Article 33 of the Convention of July 28, 1951, relating to the Status of Refugees (CR), Switzerland may not expel, return or extradite a person to the borders of territories where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion. In other words, both the SEM and the FOJ must ensure that the person concerned is not a victim of persecution or that they do not risk aggravation of their punishment in the event of a conviction (polit malus) for one of the above-mentioned reasons in their country of origin. Thus, when asylum and extradition proceedings are pending simultaneously or in parallel and extradition is requested by the person's country of origin, the principle of non-refoulement, derived from Article 33 of the CR, requires the FOJ and SEM, as the authorities of first instance, and then the Federal Criminal Court and the Federal Administrative Court, as the appeal authorities, to examine the same issues when they have to rule on refoulement in the broad sense. If the issues are identical, the authorities concerned will nevertheless examine them from perspectives and with means of investigation that differ on certain points. Thus, in matters of extradition, the requesting State will benefit from the principles of good faith and trust, with the result that the FOJ will only question the assertions of the requesting State in exceptional cases and that the the FOJ may grant extradition subject to guarantees, particularly in cases where there is a risk of torture. Furthermore, in extradition cases, questions of fact and guilt will not be examined, except in the presence of obvious errors, omissions, or contradictions. Finally, the extradition procedure is written and not oral, in the sense that the person concerned will not be heard on the facts by the FOJ or the FPC, not to mention that the FOJ has neither the specific knowledge nor the direct investigative resources of the SEM. There is therefore a risk that, at the end of the proceedings, the SEM and the FOJ will reach diametrically opposed conclusions and issue contradictory decisions. However, this risk of contradictory decisions also exists at the level of the appeal authorities. On several occasions, the FOJ and SEM have concluded that there is no risk of persecution, but the asylum appeal authority has ruled that the person concerned should be granted refugee status. “Coordination between the two procedures is therefore necessary, since the same factors, namely the risks incurred by the person in the event of extradition or refoulement, are analyzed by [the said] authorities [...]”. Article 55a IMAC was drafted with a view to avoiding the risk of contradictory decisions and thus better coordinating the two procedures. The principle of non-refoulement or non-discrimination clause within the meaning of Article 33 CR is also enshrined in extradition law in Article 2(b) and Article 37(3) IMAC.
10 However, the principle of non-refoulement is not limited to the risk of persecution within the meaning of Article 33 of the CRC. The prohibition of refoulement is also guaranteed in cases of risk of torture or ill-treatment, regardless of any situation of persecution and with regard to any State. This is the case in Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of December 10, 1984, Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950 (ECHR), Article 7 of the International Covenant on Civil and Political Rights of December 16, 1966 (UN Covenant II) and Article 25(3) of the Federal Constitution of the Swiss Confederation of April 18, 1999 (Cst.). In such cases, while the SEM will reject the asylum application in the absence of persecution, the FOJ may refuse extradition. Furthermore, while in asylum matters the principle of non-refoulement under Article 33 of the CR protects the person only in relation to their country of origin, in extradition matters this principle will protect the person concerned in relation to any country. Finally, the IMAC provides for other cases in which the FOJ will refuse extradition, in particular if the person concerned risks being sentenced to the death penalty (Art. 37 para. 3 IMAC) or if they risk being tried by a special court in the requesting State (Art. 38 para. 1 let. c IMAC) . The FOJ's examination from the perspective of the principle of non-refoulement therefore goes beyond that carried out by the SEM when the latter concludes that there is no persecution but that there is a risk of torture or ill-treatment, or that extradition is not requested by the person's country of origin.
11 Article 55a IMAC provides for coordination with the asylum procedure when the person being prosecuted has filed an application for asylum within the meaning of the Asylum Act. As we shall see below, this provision imposes an obligation to coordinate when the two procedures are conducted in parallel and extradition is requested by the State from which the person seeking protection is fleeing. This obligation stems from the principle of ex officio or inquisitorial procedure. This provision not only aims to ensure coordination in order to avoid contradictory decisions, but also to speed up procedures and reconcile Switzerland's obligations under extradition law and the CR. However, the principle of coordination also aims to ensure compliance with the principle of non-refoulement guaranteed by other norms of international law. Thus, when extradition is refused on grounds that may have an impact on the asylum application, the question of the risks incurred in the requesting State must be examined in a coordinated manner by the administrative and then judicial authorities that are successively seized of the matter. The SEM and the competent appeal authority must therefore also take the extradition file into account in the event of a refusal of extradition, in order to examine the right of the person concerned to provisional admission or to be granted a residence permit, or even possibly to be deported to another State.
B. Coordination procedures
12 Article 55a IMAC aims, as its title indicates, at coordination with the asylum procedure when the person being prosecuted has filed an asylum application within the meaning of the Asylum Act. The FOJ and the appeal authorities then take the asylum case file into consideration when deciding on the extradition request.
13 Although the provision does not explicitly state this, it imposes an obligation “on the authorities competent in extradition matters to take into account the asylum case file when deciding on the extradition request” and, by the same token, Article 55a IMAC imposes an obligation on them to coordinate with the authorities competent in asylum matters. This obligation to coordinate arises when the two procedures are conducted in parallel and extradition is requested by the State from which the person seeking extradition is seeking protection. It stems from Switzerland's international commitments on extradition and asylum (see Art. 33 CR). These obligations imposed on the authorities must be reconciled. For Ludwiczak Glassey, this coordination would also be necessary when extradition is requested by another state, because when the FOJ refuses extradition, the authorities responsible for immigration law will also have to examine whether the person can remain in Switzerland. In our opinion, it is nevertheless necessary to check whether this obligation is provided for in the standards to be applied by the authorities responsible for immigration law, as Article 55a IMAC only applies to the authorities responsible for extradition.
14 Article 55a IMAC expressly states that the exchange of files between the SEM and the FOJ is a form of coordination. This exchange is intended to prevent contradictory decisions. Thus, Article 55a only allows us to infer, on the basis of its wording, that the mutual assistance authorities (administrative and judicial) must obtain the files of any parallel proceedings from the SEM or the FAC.
15 For some legal scholars, the desired “coordination” between extradition and asylum proceedings is not optimal when it is limited to a simple “exchange of files.” This is partly because communication at the first instance judicial level (TPF/TAF) is limited to consulting files and decision-making cannot be coordinated either in terms of timing or substance. As a general rule, the decision on extradition (despite Art. 37, para. 4, LAsi, which requires the rapid settlement of asylum decisions in the case of parallel proceedings) is taken as a matter of priority, but it cannot prejudge the decision on the merits of the asylum case. This also applies vice versa, of course. In certain circumstances, the lack of procedural unity may, despite the provision of Article 55a, lead to materially incompatible final judgments, even though the proceedings should be combined and decided uniformly at the level of the Federal Supreme Court on the basis of Article 83(d)(1) LTF. Pursuant to Article 84(1) LTF, extradition cases are only subject to appeal in public law in particularly important cases, so that the Federal Supreme Court “can” only examine the substance of asylum cases in certain circumstances and therefore there can be no question of coordination. However, the documents and marginal notes allow the following practical maxim to be drawn: the mutual assistance authorities and courts dealing with such cases, as well as the relevant parallel authorities, namely the [SEM] and the [TAF], must, as far as possible, coordinate the proceedings in progress. It would therefore be necessary to establish an exchange of information between the federal offices responsible for the case (FOJ and SEM) or the courts (FPC and TAF) . Article 55a IMAC thus implies a duty of communication in the sense that the authorities and courts responsible for extradition proceedings (TPF/TF) must communicate extradition decisions made in related asylum proceedings to the SEM or the TAF. Indeed, "if asylum has been previously refused by a final decision, the extradition authority hearing an objection relating to a political offense cannot disregard this decision, since the conditions for recognizing refugee status (Art. 3 AsylA) depend on the same criteria. This applies even if it is a decision not to enter into the merits of the case, which terminates the asylum procedure without ruling on refugee status." This consideration should also be taken into account if the extradition authority has to rule on allegations of ill-treatment, torture, or risk of torture. The FOJ will consult the asylum file and decide freely on the existence of grounds for refusing extradition based on the principle of non-refoulement, then communicate its decision (to the SEM). In certain circumstances, this decision may lead to a review of the asylum decision. In addition, if there are indications to suggest this, the FOJ or the FPC must check the relevant SEM database or contact the SEM to find out whether asylum proceedings are in progress.
16 Case law and legal doctrine have also deduced the principle of expediency from Article 55a of the IMAC Act: coordination would also aim to speed up proceedings. For Ludwiczak Glassey, this coordination would even imply the suspension of the extradition proceedings until the outcome of the asylum proceedings is known. Although suspension has been ordered in some cases, the Federal Supreme Court has not always considered such suspension to be justified and has even considered that it could conflict with the principle of expediency. Thus, in one case, the Federal Supreme Court inquired about the progress of the extradition proceedings. At the time of the ruling, these proceedings were at the investigation stage with the Federal Office of Justice. Bound by the principle of expeditiousness, the Federal Supreme Court did not wait for the extradition proceedings to be completed before ruling on the asylum appeal. The investigation of the case had been completed and the questions relating to the granting of asylum and refugee status, as well as those relating to removal under the Asylum Act, were ready to be decided, so there was no justification for a suspension.
17 A suspension of one of the procedures is all the more unjustified given that “when an asylum procedure is ongoing, extradition can only be granted subject to the outcome of that procedure.” In practice, the [FOJ] will grant extradition subject to the recognition of refugee status or the granting of asylum. Furthermore, in cases where the Federal Criminal Court has jurisdiction under Article 55(2) of the IMAC, the FOJ must also reserve the decision of that court on the political offense complaint. Finally, "if refugee status is granted to the person sought, the [final] decision is binding on the extradition authorities. Extradition cannot then be ordered unless the person is only granted temporary protection." In other words, extradition may be ordered, but its execution may be suspended until a final decision on asylum has been made. In any event, even if the FOJ and the SEM are required to exchange their files, there is nothing to prevent one of these authorities from having a different opinion on the case in question, given that their perspectives and means of investigation differ.
18 Even if coordination in time does not seem possible, it is necessary to ensure, when deciding on extradition, that any pending asylum or appeal proceedings are not compromised. If asylum proceedings are pending in respect of the person being prosecuted, extradition is only authorized if the asylum application or the related appeal has been definitively rejected by the Federal Administrative Court (FAC). The same applies if the person being prosecuted submits an asylum application during the extradition proceedings. However, this does not exempt the FOJ or the FPC from also examining whether there is an obstacle to extradition in the form of political persecution.
19 The above applies mutatis mutandis when the FOJ is required to examine a request for arrest. Even though, according to the structure of the IMAC, Article 55a is found in the second part devoted to extradition, more specifically in Section 5 of Chapter 2 devoted to the decision on extradition, the FOJ must automatically inquire into the existence of any grounds for manifest inadmissibility of extradition and, in particular, consult the SYMIC to verify whether the person concerned has not filed an asylum application or does not have refugee status in Switzerland.
20 Finally, in order to ensure uniform case law and avoid contradictory decisions, a right of appeal to the Federal Supreme Court has been introduced, which is exceptional in asylum law. The Federal Council emphasized that the introduction of this new right of appeal will make it possible to combine, at the level of the supreme court, the asylum and extradition procedures when they are conducted in parallel and to take due account of the principle of non-refoulement. Article 83(d)(1) of the Federal Supreme Court Act allows for the elimination of any contradictions that may still exist at the stage of appeal to the Federal Supreme Court and thus ensures this coordination. “Thus, although public law appeals are generally excluded against asylum decisions rendered by the FAC, this legal remedy is available when the case concerns a person who is the subject of an extradition request filed by the State from which the person is seeking protection.” The purpose of the appeal to the Federal Supreme Court is to ensure that case law is free of any contradictions concerning the principle of non-refoulement. The Federal Supreme Court rules on appeals concerning extradition and asylum in a single decision. For all these reasons, a suspension of one of the proceedings is therefore not justified.
21 For the sake of completeness, it should also be mentioned that, unlike in asylum matters, there are no holidays in extradition matters (Art. 46 para. 1 let. b LTF). Coordination on this point would also be welcome, particularly from the point of view of the principle of speed.
22 Other provisions also provide for a form of coordination between the authorities to avoid contradictory decisions. For example, Article 32 of Ordinance I on Asylum of August 11, 1999 (OA I) provides that there shall be no examination or decision on removal from Switzerland if a decision to return the asylum seeker to the border has already been made. The Federal Administrative Court has thus ruled, with reference in particular to Article 32 OA I and taking into account the court's assessment of a possible removal or possible obstacles to the enforcement of the removal, that in the interests of effective coordination, the appeal proceedings should be temporarily suspended until the FOJ has ruled in the first instance on the request for removal.
23 When extradition is requested by a third country, refugee status does not prevent extradition to that country, provided that there is no risk of refoulement to the country of origin. Article 15 CEExtr provides a valid guarantee that the person being prosecuted will not be extradited to their country of origin without Switzerland's consent. At the latest when the extradition is carried out, the foreign authorities must be informed of the asylum procedure underway in Switzerland. Indeed, extradition must be refused, in accordance with Article 3(2) CEExtr, when the person sought fulfills the conditions for recognition of refugee status. Nevertheless, the principle enshrined in Article 33 of the CR does not prevent the requested State from extraditing a person to whom it has granted refugee status to the requesting State of which that person is not a national and in which he or she has no reason to fear discrimination, bearing in mind that the requesting State to which the person is extradited is not authorized to re-extradite him or her to a third State without the consent of the requested State. Thus, the latter may ensure, in accordance with the principle of non-refoulement, that the person whose extradition is requested will not be returned to their country of origin, which they left to seek refuge in the requested State.
IV. Criticism
24 While Article 55a of the IMAC provides a legal basis for the exchange of files, this exchange must above all enable the authorities concerned to base their examination of the same issues on a standardized set of facts. However, this is not always sufficient to avoid contradictory decisions, given the different perspectives and resources available to the various authorities. Furthermore, while the consolidation of proceedings at the Federal Supreme Court level is to be welcomed, the latter rarely or only exceptionally examines appeals in asylum matters and therefore does not benefit from all the expertise of the Federal Administrative Court. Finally, in cases where asylum is granted and extradition authorized, i.e., a scenario in which contradictory decisions are rendered, the Federal Supreme Court will not be able to resolve this contradiction if no appeal is lodged against the granting of asylum.
About the author:
Giuseppe Aufiero, Dr. iur., lawyer, lic. in psychology and qualified photographer; lawyer in the Extradition Unit of the FOJ; Aufiero Legal law firm in 3178 Bösingen, specializing in image rights and copyright law; aufieroavocat@bluewin.ch.
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Ludwiczak Glassey Maria, Commentaire de l’article 55a EIMP, in : Ludwiczak Glassey Maria/Moreillon Laurent, Petit Commentaire, EIMP, Loi sur l’entraide pénale internationale, Bâle 2024 (cité : PC-EIMP, art. 55a N 3.).
Niggli Marcel Alexander/Uebersax Peter/Wiprächtiger Hans/Kneubühler Lorenz (Hrsg.), Basler Kommentar, Bundesgerichtsgesetz, 3. Auf., Basel 2018.
Vena Mario, Parallele Asyl- und Auslieferungsverfahren, Asyl 2007/2, p. 3-17 (cité: Vena).
Zimmermann Robert, La coopération judiciaire internationale en matière pénale, 6ème éd., Berne 2024.
Materials
Message du Conseil fédéral concernant la loi fédérale sur la coordination entre la procédure d’asile et la procédure d’extradition du 24 février 2010, FF 2010 1333 (cité: FF 2010 1333).
Loi fédérale sur la coordination entre la procédure d’asile et la procédure d’extradition du 1er octobre 2010 (RO 2011 925) (cité: RO 2011 925).