-
- Art. 3 FC
- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 13 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 26 FC
- Art. 29a FC
- Art. 30 FC
- Art. 31 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 45 FC
- Art. 51 FC
- Art. 52 FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 69 FC
- Art. 74 FC
- Art. 75b FC
- Art. 77 FC
- Art. 81 FC
- Art. 96 para. 1 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 119a FC
- Art. 122 FC
- Art. 123a FC
- Art. 123b FC
- Art. 130 FC
- Art. 136 FC
- Art. 164 FC
- Art. 166 FC
- Art. 170 FC
- Art. 176 FC
- Art. 178 FC
- Art. 189 FC
- Art. 191 FC
-
- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 97 CO
- Art. 98 CO
- Art. 99 CO
- Art. 100 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 633 CO
- Art. 701 CO
- Art. 713 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Art. 808c CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
-
- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 60 PRA
- Art. 60a PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 64 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 73 PRA
- Art. 73a PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
-
- 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
- Art. 56 IMAC
- Art. 55a IMAC
- Art. 63 IMAC
- Art. 67 IMAC
- Art. 67a IMAC
- Art. 74 IMAC
- Art. 74a IMAC
- Art. 80 IMAC
- Art. 80a IMAC
- Art. 80b IMAC
- Art. 80c IMAC
- Art. 80d IMAC
- Art. 80h IMAC
- Art. 80k IMAC
-
- 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
- Art. 14 FADP
- Art. 15 FADP
- Art. 18 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 28 FADP
- Art. 29 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. 52 FADP
- Art. 54 FADP
- Art. 55 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
-
- 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)
-
- 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
- Art. 8 AMLA
- Art. 8a AMLA
- Art. 11 AMLA
- Art. 14 AMLA
- Art. 15 AMLA
- Art. 20 AMLA
- Art. 23 AMLA
- Art. 24 AMLA
- Art. 24a AMLA
- Art. 25 AMLA
- Art. 26 AMLA
- Art. 26a AMLA
- Art. 27 AMLA
- Art. 28 AMLA
- Art. 29 AMLA
- Art. 29a AMLA
- Art. 29b AMLA
- Art. 30 AMLA
- Art. 31 AMLA
- Art. 31a AMLA
- Art. 32 AMLA
- Art. 33 AMLA
- Art. 34 AMLA
- 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. Introduction
A. General
1 Article 56 of the IMAC establishes the point in time from which extradition may be carried out (para. 1) and governs the consequences in the event that the extradition request is rejected (para. 2).
2 From a legal standpoint, except in cases of simplified extradition, the execution of an extradition requires a decision ordering the surrender of the person sought to the requesting State. Compared to other codes of procedure, Article 56 of the IMAC imposes less stringent requirements regarding enforceability, allowing for the execution of decisions that have not yet become final.
3 The provision was designed to address the need for an accelerated extradition procedure. For this reason, Article 56(1) of the IMAC provides that the extradition decision becomes enforceable—without having to wait for the appeal period to expire—if the person sought explicitly requests it (subparagraph (a)) or does not declare, within five days of the decision’s service, their intention to appeal (subparagraph (b)).
4 The provisions of Article 56(1)(b) of the IMAC mean that, in practice, the person subject to extradition often announces their intention to appeal the extradition decision issued by the Federal Office of Justice (FOJ) in order to temporarily suspend its enforcement and thus have more time to assess the chances of success of a potential appeal before the Criminal Appeals Chamber of the Federal Criminal Court (FCC).
B. Substantive Requirements for the Execution of Extradition
5 According to settled case law, the detention of the person sought is the rule throughout the entire extradition proceeding, while their release remains the exception. The Federal Office for Justice (UFG) may refrain from issuing an arrest warrant for the purpose of extradition, in particular if the person sought is unlikely to evade extradition or compromise the criminal investigation (Art. 47(1)(a) of the IMAC). In the absence of a flight risk or a risk of collusion, the OFJ may, instead of detention, order other precautionary measures, in particular the alternative measures provided for in Art. 237 of the Swiss Criminal Procedure Code (Art. 47(2) of the IMAC). If an alternative measure to detention has been ordered for extradition purposes, the person sought must, as a rule, be arrested in preparation for the execution of the extradition.
6 If the person to be extradited cannot be located because they have fled—in particular despite the adoption of alternative measures—the extradition decision cannot be enforced due to lack of subject matter of the proceedings; if the person subject to prosecution fled before the extradition decision was rendered, the extradition proceedings are generally dismissed due to lack of subject matter.
7 The execution of extradition must be postponed if the person to be extradited is temporarily unable to be transported due to their state of health.
II. Commentary on the Article
A. Request for Immediate Execution (para. 1(a))
8 Pursuant to Art. 56, para. 1(a) of the IMAC, extradition may be executed if the person sought explicitly requests immediate execution.
9 As a general rule, the request for immediate execution is accompanied by a waiver of the right to appeal. In such a case—that is, if the person entitled to appeal waives the right to appeal as an ordinary remedy (see Art. 437, para. 1, subpar. b of the Swiss Criminal Procedure Code)—the extradition decision must be deemed final and may be executed without further formalities.
10 From a formal standpoint, it would be advisable for both the declaration regarding immediate enforcement and the waiver of appeal to be made expressly in writing.
11 For the purposes of immediate enforcement, the extradition decision must contain neither conditions subject to acceptance under Art. 80p of IMAC nor obligations that the requesting State is required to fulfill beforehand.
B. Intent to Appeal the Extradition Decision (para. 1(b))
12 Pursuant to Art. 56, para. 1(b) of the IMAC, extradition may be carried out if the person sought does not declare within five days of notification of the decision that they intend to file an appeal.
1. Form and Deadline for the Notice of Appeal
13 The notice of intent to appeal the extradition decision must be addressed to the UFG, i.e., the authority that issued the decision the person subject to extradition intends to challenge.
14 This is a unilateral declaration of intent, which need not be substantiated nor is it subject to any specific requirements.
15 The notice of appeal must be filed within 5 days of service of the extradition decision.
16 The requirement set forth in Art. 56(1)(b) of the IMAC does not constitute an excessive formality, but rather a requirement expressly provided for by the legislature to take into account the specific nature of the extradition procedure. Moreover, this requirement is evident from a simple reading of the statutory text and is also expressly mentioned by the Federal Office of Justice (FOJ) in its guidance on the remedies available against an extradition decision.
2. Consequences of Failure to File an Appeal
17 If a notice of intent to appeal is not filed within five days of service of the extradition decision, the decision becomes enforceable, and the UFGmay proceed with the surrender of the person sought to the requesting State without waiting for the appeal period to expire.
18 Any appeal against the extradition decision filed within 30 days of its notification has an automatic suspensive effect (see Art. 21(4) IMAC), meaning that if the extradition has not yet taken place at the time the appeal is filed, its execution is suspended.
19 Once the person sought has been surrendered to the requesting State, an appeal against the extradition decision is no longer admissible.
3. Compliance with the Appeal Deadline
20 Extradition becomes enforceable if the appeal deadline has expired without having been utilized. This means that extradition may be carried out, despite a declaration of intent to file an appeal, if the person subject to prosecution does not challenge the extradition decision before the Criminal Appeals Chamber of the Federal Criminal Court (TPF) within 30 days of its notification (Art. 50(1) of the Administrative Procedure Act). The same conclusion applies if the person concerned does not file an appeal against the TPF’s judgment with the Federal Supreme Court within 10 days of being served with the full text of the decision (Art. 100, paras. 1 and 2(b) of the Federal Supreme Court Act). Similarly, extradition becomes enforceable if any appeal has been definitively dismissed. In all these cases, in addition to being enforceable, the extradition decision becomes final.
4. Legal Scholarship Criticism of Art. 56(1)(b) IMAC
21 A school of legal scholarship criticizes the provisions set forth in Art. 56(1)(b) IMAC. First and foremost, because the person subject to prosecution could promptly file an appeal with the Federal Criminal Court (TPF) as early as the sixth day following notification of the extradition decision; for this reason, the failure to declare an intention to appeal cannot be construed as a definitive waiver of the right to file an appeal within the 30-day deadline. According to the author, the IMAC therefore lacks a provision that, analogous to the provisions of Article 399(1) of the Swiss Criminal Procedure Code (CPP) regarding the notice and declaration of appeal, would establish a 5-day deadline as a condition for the validity of an appeal against the extradition decision. According to the author, before proceeding with the surrender of the person sought, one should wait for the appeal period to expire without action, unless the person subject to extradition has submitted a declaration waiving the right to appeal. To accommodate the need for an expedited extradition procedure, the author suggests shortening the appeal period.
22 The Federal Supreme Court does not share these criticisms. First of all, according to the High Court, an analogy with Art. 399(1) of the Criminal Procedure Code (CPP) is not justified. Unlike the OFJ’s reasoned extradition decision, the first-instance criminal judgment is initially served only in its operative part (see Art. 84(2) CPP) . The 10-day deadline for filing an appeal with the trial court, as provided for in Art. 399(1) of the Criminal Procedure Code, begins to run upon service of the written operative part of the judgment (Art. 384(a) of the Criminal Procedure Code). The party that has filed an appeal must then submit a written notice of appeal to the appellate court within 20 days of service of the judgment with reasons (Art. 399(3) of the Criminal Procedure Code). However, if—contrary to the system provided for in the CPP—the trial court does not communicate the operative part to the parties either orally or in writing, but instead serves the reasoned judgment directly on them, the obligation to file a notice of appeal is waived. As for the requirement to wait in all cases for the 30-day appeal period to expire, according to the Federal Supreme Court, thiswould render the clear and justified meaning and purposes of Art. 56(1)(b) of the IMAC meaningless, thereby disregarding the clear intent of the federal legislature.
23 The solution adopted by the Federal Supreme Court appears reasonable. First, it does not constitute a particularly onerous burden for the person subject to extradition to promptly communicate their intention to appeal—by means of a simple, unsubstantiated declaration—once they have taken note of the decision and, at least in summary form, of the grounds on which the Federal Office of Justice (FOJ) based its decision to grant extradition. Furthermore, this case law is consistent with the guarantee of judicial review enshrined in Art. 29a of the Constitution (as well as Art. 13 of the ECHR), insofar as the requirement established by the legislature in Art. 56(1)(b) of the IMAC does not constitute a procedural obstacle to the judicial protection guaranteed by Art. 29a of the Constitution, but rather a simple formality justified by the need for speed that characterizes the extradition procedure. Moreover, the Federal Supreme Court has observed that the disputed provision has rarely been the subject of litigation, since compliance with it by persons subject to extradition—who are often represented by counsel—poses no problem provided they act with due diligence.
C. Consequences in the Event of Refusal of Extradition (para. 2)
24 Art. 56, para. 2 of the IMAC provides that, if extradition is denied, the UFG shall terminate detention pending extradition.
25 Extradition is refused if the OFJ denies the surrender of the person sought to the requesting State or if an appeal against the decision granting extradition is upheld by the Criminal Appeals Chamber of the Federal Criminal Court (TPF) or by the Federal Supreme Court.
26 In the event that extradition is refused, the UFG orders the release of the person subject to prosecution or terminates the alternative measures imposed on that person.
27 If extradition to the requesting State is denied, the person subject to prosecution may assert a right to compensation for wrongful imprisonment pursuant to Art. 15 IMAC; Articles 429 and 431 of the Criminal Procedure Code (CPP) apply by analogy.
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.
Bibliography
Heimgartner Stefan, Auslieferungsrecht, Zurigo 2002.
Heimgartner Stefan, Commento dell’art. 56 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. 56 AIMP, in: Ludwiczak Glassey Maria/Moreillon Laurent (edit.), Petit commentaire, Loi fédérale sur l’entraide pénale internationale en matière pénale, Basilea 2024.
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).