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- Art. 96 para. 2 lit. a FC
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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. 59a PRA
- Art. 59b PRA
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- Art. 67a PRA
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- Art. 75a PRA
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- Art. 76a PRA
- Art. 90 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
- Art. 56 IMAC
- Art. 55a IMAC
- Art. 63 IMAC
- Art. 65 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
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- 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
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- Art. 21 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
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- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
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- Art. 47 FADP
- Art. 47a FADP
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- Art. 50 FADP
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- Art. 63 FADP
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- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 1 CCC (Convention on Cybercrime)
- 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
- Art. 8 AMLA
- Art. 8a AMLA
- Art. 9 AMLA
- Art. 11 AMLA
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- Art. 20 AMLA
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- Art. 24 AMLA
- Art. 24a AMLA
- Art. 25 AMLA
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- 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
BANKING ACT
- I. General Provisions
- II. Content of the Provision
- III. Cases Covered by Art. 65 of the Mutual Legal Assistance Act (EIMP) as Grounds for Appeal
- Bibliography
- Materials
I. General Provisions
1 The execution of mutual legal assistance measures requested in the context of international cooperation in criminal matters is, in principle, carried out in accordance with the forms and procedures of the requested State (locus regit actum; see, in particular, Art. 3 CEEJ, Art. 22 CEExtr, and Art. 80a, para. 2, EIMP). Consequently, in the context of passive mutual legal assistance, acts requested by the requesting State and performed by Swiss authorities for the purposes of foreign criminal proceedings are governed by Swiss law and not by the law of the requesting State. In the absence of an international treaty, the Mutual Legal Assistance Act (EIMP) and its implementing ordinance are thus applicable to the execution of foreign requests for mutual legal assistance by Swiss authorities (Art. 1(1) EIMP). Alternatively, other procedural laws, including the Administrative Procedure Act (PA) or the Criminal Procedure Code (CPP), shall apply (Art. 12(1) EIMP).
2 Art. 65 EIMP, however, provides for an exception to the aforementioned principle, ensuring that certain evidence collected in Switzerland pursuant to a letter rogatory can be used in foreign criminal proceedings. The purpose of mutual legal assistance, which consists, in particular, of assisting foreign authorities in their investigations, would in fact be rendered meaningless if the evidence transmitted by the authorities of the requested State were ultimately unusable due to violations of the procedural rules applicable in the requesting State. Therefore, Art. 65 EIMP permits, subject to Swiss public policy (Art. 1a EIMP; see also Art. 8 PAII CEEJ) and provided the conditions set forth infra are met, the application of certain formal rules of foreign law (forum regit actum) to investigative measures requested by the requesting State and carried out in Switzerland. The main cases in which foreign law applies include, in particular, sworn statements or solemn affirmations, as well as hearings conducted via videoconference. It should be noted that Art. 65 of the EIMP addresses the form of the proceeding and does not, in particular, regulate the probative value of the evidence thus obtained.
II. Content of the Provision
A. Request by the Requesting State
3 Pursuant to Art. 65(1) in initio of the Mutual Legal Assistance Act (EIMP), Swiss executing authorities may apply foreign law upon an express request from the requesting State.
4 In the absence of such a request, Swiss authorities may draw the requesting authority’s attention to the need to make such a request; otherwise, Swiss law will apply. This requires Swiss authorities to verify, in accordance with the aforementioned purpose of mutual legal assistance and in cases falling under Art. 65 of the Mutual Legal Assistance Act, whether the application of Swiss law is likely to render the evidence intended for transmission to the foreign authority inadmissible.
B. Evidence (para. 1)
1. Confirmation of Statements (subpar. a)
5 It follows from Art. 65(1)(a) of the Mutual Legal Assistance Act (EIMP) that, at the express request of the requesting State, the statements of witnesses and experts are confirmed in the form prescribed by the law of the requesting State, even if applicable Swiss law does not provide for such confirmation.
6 The term “confirmation” used in the aforementioned provision refers to statements made in a solemn form intended to support, or even substantiate, their content and authenticity with a view to their use as evidence. These primarily include sworn testimony and statements, namely a pledge to tell the truth made by invoking God or a sacred entity as a witness, or a solemn oath, which corresponds to the equivalent secular declaration. Such commitments, which are generally oral, are notably provided for under the law of common law jurisdictions, such as that of the United States of America (see Art. 9, para. 2, and Art. 12, para. 1, TEJUS).
7 The issue of confirming statements also arises in practice with regard to certain documents—particularly banking documents—intended for transmission to the requesting State. In several common law countries, notably the one mentioned above (see Art. 18 TEJUS), the probative value of such evidence depends, in principle, on its authentication by means of a written declaration, generally in the form of an affidavit. Through this declaration, the author—usually the person who prepared the documentation—certifies that the transmitted documents are complete, accurate, and have not been altered in any way. This requirement stems from the special role that testimony has traditionally played in common law systems, where the credibility of evidence is often established through a person capable of guaranteeing its origin, integrity, and the manner in which it was obtained. At first glance, this practice may be likened to the formal requirements set forth in Art. 65(1)(b) of the Mutual Legal Assistance Act (IMPA), insofar as theaffidavit is specifically intended to ensure the admissibility or usability of the evidence before the courts of the requesting State. The legal characterization of this measure, however, remains debatable under Swiss law. One may indeed question whether the preparation of such a document truly constitutes a mere formal procedure relating to evidence already collected, or whether it is instead an independent measure for the execution of the request for mutual legal assistance, in casu supplementary to the order to produce documents. In our view, theaffidavit must be understood as an independent measure arising from the obligation to produce documents and classified as a written report within the meaning of Art. 145 of the Swiss Criminal Procedure Code (CPP), applicable by reference to Art. 12 of the International Mutual Legal Assistance Act (IMLA). This classification appears consistent with the restrictive case law established in ATF 131 II 132, since the purpose of the measure is no longer merely to comply with a form prescribed by foreign law, but rather to create a new piece of evidence intended to supplement those already obtained.
2. Other Evidence (Letter b)
8 Pursuant to Art. 65(1)(b) of the EIMP, upon the express request of the requesting State, the form required to render other means of evidence admissible before a court may be taken into consideration. In other words, an exception to the aforementioned principle of locus regit actum is also conceivable for other forms of evidence if compliance with specific formal requirements under the law of the requesting State is necessary for their admissibility and, consequently, their admissibility in foreign courts.
9 Although the provision appears relatively broad with regard to the formal requirements of foreign law that may be taken into account, they are nevertheless limited by the requirement of compatibility with the fundamental principles of Swiss law (Art. 65(2) EIMP; see also Art. 8 PAII CEEJ) . It is important to bear in mind the purpose of the provision; otherwise, Swiss authorities could be required to carry out procedural acts that would not be admissible in Swiss courts, which would, moreover, be contrary to Art. 63 of the EIMP. Thus, Art. 65 of the EIMP allows for the implementation in Switzerland—in accordance with the forms prescribed by foreign law—of procedural acts recognized under Swiss law. It should be noted that for mutual legal assistance measures of a broad scope—particularly those in which evidence is transmitted to the requesting authority in real time before the Swiss mutual legal assistance proceedings have been concluded (e.g., hearings via videoconferencing or the deployment of foreign undercover agents)— the Federal Supreme Court requires a treaty-based legal basis as an expression of Switzerland’s express international commitment. For mutual legal assistance to be permitted, it is therefore not necessary for the measure—of a broad scope – requested by the foreign authority—be based on Swiss law. Rather, it is sufficient that the mutual legal assistance measure be expressly provided for by a treaty binding on Switzerland, even if domestic law does not recognize the means of evidence in question (e.g., questioning by conference call) or if one or more conditions relating to that means are not met under Swiss law.
10 In legal scholarship, the presence of the defendant and/or his or her defense counsel at a witness hearing is cited as an example in the context of Art. 65(1)(b) of the Swiss Mutual Legal Assistance Act (EIMP). If the procedural requirement regarding the presence of the accused and/or their counsel during the execution of a mutual legal assistance measure carried out by Swiss authorities in accordance with Swiss procedural law is governed by Art. 65a of the International Mutual Assistance Act (IMAA), the provision at issue here may indeed apply when the mutual assistance measure is carried out in Switzerland in accordance with the rules prescribed by foreign law. Foreign law may thus, for example, make the validity of evidence obtained through a hearing conducted via videoconference or teleconference contingent upon the aforementioned presence. It should be noted that in its report on the Second Additional Protocol to the European Convention on Mutual Legal Assistance in Criminal Matters, the Federal Council observed that the use of videoconferencing and teleconferencing could, in general, be authorized by Art. 65 of the Mutual Legal Assistance Act (EIMP) as a “required form” provided for by that provision.
a. Hearings by Videoconference
11 The hearing of a witness or expert by videoconference is specifically provided for in Art. 9 of the Second Additional Protocol to the European Convention on Mutual Legal Assistance (ECMLA), a protocol that entered into force for Switzerland on February 1, 2005.
12 Hearing by videoconference is a secondary option to the traditional method, in that it is permitted only if it would be inappropriate or impossible for the witness or expert to travel from the territory of the requested State, where they are located, to that of the requesting State to be heard there (Art. 9, paras. 1 and 3, PAII CEEJ). “Inappropriateness” refers, for example, to cases where the person to be heard cannot travel easily due to age or health. As for “impossibility,” this refers, in particular, to a serious danger that the person concerned might face if they appeared in the territory of the requesting State. In addition to, among other things, the name of the judicial authority and the persons who will conduct the hearing, the requesting authority is required to indicate one of these grounds in support of its request (Art. 9, para. 3, PAII CEEJ).
13 Provided that the hearing by videoconference does not conflict with the fundamental principles of Swiss law (see Art. 65, para. 2, EIMP) and that Switzerland has the technical means necessary for its implementation, the Swiss authorities are required to grant a request to that effect made by a requesting State that is a party to the relevant protocol (Art. 9, para. 2, 1st sentence, PAII CEEJ) or a bilateral treaty providing for it, even if said hearing is conducted by the competent foreign authorities in accordance with their own procedural law (Art. 9, para. 5(c) and 7 PAII CEEJ; notably Art. VI, para. 5(c) of the CH-I EECJ Agreement; see also Art. 65, para. 1(b) of the EIMP).
14 The hearing by videoconference is governed by strict rules regarding its procedural arrangements (see Art. 9, paras. 4–7 of PAII EECJ). In particular, they are conducted under the supervision of the judicial authorities of the requested State, which, in accordance with the rules provided for by its legislation, are responsible for issuing the summons (Art. 9, para. 4, PAII CEEJ) and ensure compliance with the fundamental principles of its law, as well as the protection of the person to be heard and the safeguarding of that person’s rights (Arts. 8 and 9, para. 5, subpars. a and b, PAII CEEJ; see also Art. 65, para. 2, EIMP). In particular, the witness or expert being heard may invoke the right to refuse to testify that is recognized for them under both the law of the requested State and that of the requesting State (Art. 9, para. 5, subpar. e, PAII CEEJ; see also Art. 65, para. 3, EIMP). It should be noted that the consequences of a violation of the obligation to testify, as well as of perjury, are governed by the law of the requested State (Art. 9, para. 7, PAII CEEJ; see also Art. 163, para. 2, 176, and 177, para. 1, CPP; Art. 307 CP).
15 Although Art. 9 PAII CEEJ primarily concerns the examination of witnesses and experts, paragraph 8 of this provision allows States Parties to use videoconferencing also for theexamination of persons facing criminal charges or suspects,provided that the following three cumulative conditions are met: (i) the judicial authorities of the requesting State and the requested State agree to use this method of hearing and have agreed on the terms; (ii) the arrangement they have reached complies with their national law as well as with applicable international treaties (e.g., Art. 6, para. 3, of the ECHR) ; (iii) the person subject to criminal proceedings or the suspect must have given their consent.
16 Although videoconferencing is a particularly practical tool for conducting hearings with an international component, it nevertheless poses numerous challenges for integration into the EAW system when Switzerland is the requested State. All persons present at the videoconference hearing—in particular the judicial authorities of the requesting State—may in fact directly hear the statements of the person being heard, even before a decision has been made regarding the transmission of the information in question to that State or before the entitled party has given consent thereto, thereby creating a risk of uncontrolled dissemination of information abroad. Given its immediate and instantaneous nature, this tool is therefore incompatible with the principles that must be observed under Swiss mutual legal assistance procedures, particularly the principles of proportionality and “potential usefulness,” as well as the principle of specialty.
17 To minimize this inconsistency with the mutual legal assistance procedure provided for by the EIMP, the following solutions are proposed by legal scholarship and case law. In a first scenario, the hearing by videoconference is, like other mutual legal assistance measures, conducted between the decision to proceed and the decision to close the case. In this scenario, the Swiss executing authority must issue a decision to proceed within the meaning of Art. 80a(1) of the EIMP, combined with the interim enforcement decision, in which it assesses whether the conditions for videoconferencing, as defined by the applicable treaty law, are met. Furthermore, by analogy with Art. 65a of the EIMP, the relevant Swiss authority must specify the requirement that the requesting State formally undertake, through a declaration of assurance, not to record or take minutes of the videoconference hearing and not to use the information obtained for the purposes of its proceedings until the final decision has become final. Prior to the the videoconference hearing takes place, the foreign authority that made the request for mutual legal assistance—generally the authority presiding over the proceedings—is required to submit the validly signed declaration of assurance to the Swiss authorities. Otherwise, the videoconference hearing will not take place. Pursuant to the principle of good faith and mutual trust between States, compliance with these guarantees by the requesting State is presumed. The interim decision to conduct the hearing by videoconference may be the subject of a separate appeal to the Complaints Chamber of the Federal Criminal Court (Art. 37(2)(a) LOAP in conjunction with Art. 25(1) EIMP) under the conditions set forth in Art. 80e(2)(b) EIMP (immediate and irreparable harm), applicable by analogy. Once the videoconference hearing has concluded, and to ensure the right to be heard as well as the principles of proportionality and specialty, the recording and/or the related minutes shall be provided to the person heard as well as to anyone authorized to appeal the mutual legal assistance decision. In the event that the entitled party has not consented to simplified execution pursuant to Art. 80c EIMP, the Swiss executing authority shall issue a final decision on the granting and scope of mutual legal assistance (Art. 80d EIMP), which may be appealed within 30 days to the Complaints Chamber of the Federal Criminal Court (Art. 80e, para. 1, and 80k of the Mutual Legal Assistance Act; see also Art. 37, para. 2, subparagraph a of the Act on the Protection of Persons Subject to Criminal Proceedings in conjunction with Art. 25, para. 1 of the Mutual Legal Assistance Act) . Once the decision to close the proceedings becomes final, the recording and/or the minutes of the hearing are transmitted to the foreign authority, and authorization to use the information obtained through the relevant mutual legal assistance measure is thereby granted. In the second scenario, the mutual legal assistance procedure is carried out to its conclusion, and the hearing by videoconference is conducted after the decision to close the case becomes final, thereby rendering unnecessary the provision of the aforementioned guarantees by the requesting State. In this case, the decision to initiate proceedings is effectively the same as the decision to close the case, so that, unlike in the previous situation, only a single appeal—against the decision to close the case—may be filed. Although this scenario appears to better respect the principle of expeditiousness, it is not without its problems, since the executing authority is compelled to render a decision regarding the transmission of evidence that has not yet been collected, thereby depriving it, in particular, of the opportunity to assess the potential relevance of such evidence. Furthermore, the entitled party is deprived of the opportunity to assert their rights (notably the right to be heard). To address the above and prevent this option from being rejected, the FOJ recommends that the purpose of the videoconference hearing be clearly defined in advance through a list of questions provided by the requesting authority, thereby allowing, on the one hand, the Swiss executing authority to assess the potential usefulness of the information that may be gathered during the upcoming videoconference hearing and, second, the entitled party to assert their rights by being given the opportunity to comment on those questions based on the list of questions provided to them. In the event that the aforementioned questions cannot be transmitted to the entitled party due to the existence of a risk of collusion, the videoconference hearing is rejected, subject to the interested party’s consent to simplified enforcement within the meaning of Art. 80c of the International Mutual Assistance Act (EIMP). During the videoconference hearing, the relevant Swiss authority must also ensure that the requesting authority does not deviate from the previously defined scope, thereby undermining the spontaneity of the hearing—during which the foreign judicial authority cannot freely expand its questioning in response to the statements made by the person being heard. Furthermore, the aforementioned advantage regarding compliance with the principle of expediency is undermined by the fact that any questions falling outside that scope must be the subject of a supplementary request for mutual legal assistance. Finally, upon completion of the mutual legal assistance proceeding in question, the executing authority transmits the minutes, as defined in Art. 9, para. 6, PAII CEEJ, to the foreign authority, accompanied by a reservation regarding the principle of specialty (Art. 67 EIMP).
b. Hearing by Conference Call
18 The examination of a witness or expert via telephone conference is governed, in particular, by Art. 10 PAII CEEJ.
19 In accordance with this provision, this form of hearing is conducted on the territory of the requested State upon a request from the requesting authority (Art. 10, para. 1, PAII CEEJ; see also Art. 65, para. 1, in initio, EIMP). The filing of such a request—the content of which is set forth in paragraph 4 of the aforementioned provision—presupposes that the hearing will be conducted by the judicial authorities of the requesting State.
20 This method differs from videoconferencing in that it is limited to the hearing of witnesses and experts and is subject to their express consent (Art. 10, para. 2, PAII CEEJ). Furthermore, it is not a substitute for the traditional form of hearing and is particularly useful when, for example, a witness is required to give testimony on a routine matter. For this form of hearing to be admissible, it must also be provided for under the national law of the requesting State (Art. 10, para. 1, PAII CEEJ) and the requested State must consent to it, having first ensured that this method does not conflict with the fundamental principles of its law (Art. 10, para. 3, PAII CEEJ) . As the requested State—or, in its case, the competent executing authority—Switzerland examines in this context how to proceed with the request made by the foreign authorities, based on Art. 65 of the Mutual Legal Assistance Act (EIMP).
21 The practical arrangements for conducting the hearing by conference call are determined by mutual agreement between the States concerned (Art. 10, para. 5, 1st sentence, PAII CEEJ), and, once these have been agreed upon, the requested authority undertakes to perform the tasks set forth in paragraph 5, second sentence, subparagraphs (a) through (c) of that provision. The practice followed by certain States Parties of hearing a witness or expert at a consulate located within the territory of the requested State without the assistance of that State is, for example, not contrary to Article 10 of the PAII CEEJ. Notwithstanding this and regardless of any agreed-upon arrangements, the requested State may, pursuant to paragraph 6, require compliance with the rules governing videoconferencing as set forth in Article 9, paragraphs 5 and 7 of PAII CEEJ.
22 With regard to issues related to the instantaneous and immediate nature of hearings by telephone conference—and, consequently, the requesting authority’s access to evidence in real time—and the recommended solutions, the reader is referred to the considerations set forth in this regard concerning hearings by videoconference.
c. Concluding Remarks
23 Given the rise in international crime and due to their practicality, videoconferencing and telephone conferencing are set to grow in importance, particularly for complex proceedings. It would therefore be appropriate to make a legislative amendment in this regard and to include a provision in the EIMP (e.g., by adding Art. 65b or 65c) governing these two methods of hearing, modeled after the rules set forth in Arts. 9 and 10 of the PAII CEEJ. As Zimmermann rightly points out, “ [b]y introducing into domestic law a specific provision governing [hearings via] videoconferencing [and by telephone conference], the legislature would provide a legal basis for mutual legal assistance granted by Switzerland to States with which it is not bound by a treaty or with which the concluded treaty does not provide for the possibility of conducting [such investigative acts].” Nevertheless, in the absence of a treaty-based legal basis, and to avoid the rejection of a hearing conducted in one of the aforementioned forms, the Federal Office of Justice proposes to negotiate with the requesting State the procedure to be followed for its implementation. In this context, an assurance of reciprocity from that State must be required, and the Federal Department of Foreign Affairs may also be asked to assess the reliability of that State’s legal system.
C. Compatibility with Swiss law and absence of serious harm to persons participating in the proceedings (para. 2)
24 Pursuant to Art. 65(2) of the International Mutual Legal Assistance Act (EIMP), the form used to confirm statements and obtain evidence, in accordance with paragraph 1, must be compatible with Swiss law and must not cause serious harm to persons participating in the proceedings.
25 As noted supra, the requirement of compatibility with Swiss law was intended to limit the execution by Swiss authorities of mutual legal assistance measures—in the forms prescribed by foreign law—to those that are permitted under the Swiss legal system (see Art. 63 EIMP) and which, consequently, do not conflict with the fundamental principles of Swiss law. To give concrete effect to this condition, Art. 27 OEIMP specifies that the oath, as a form required for the confirmation of statements, is not permitted under Swiss law, pursuant to Art. 65(2) of the Mutual Legal Assistance Act (EIMP), if the law of the requesting state allows a choice between an oath and a solemn promise to tell the truth, and the witness or expert being questioned refuses to take an oath. In the latter case, the person being questioned is, before testifying, urged to tell the truth (Art. 163(2) CPP) and warned of the consequences that Art. 307 CP attaches to a statement contrary to the truth.
26 Regarding the condition that there beno serious prejudice to persons participating in the proceedings, this was intended by the legislature to protect private secrets not guaranteed by Art. 65, para. 3, of the International Mutual Legal Assistance Act (EIMP), namely, in particular, the business or manufacturing secrets of witnesses and experts.
D. Right to Refuse to Testify (para. 3)
27 In principle, in the context of mutual legal assistance proceedings in which Switzerland is the requested State, the rules of Swiss criminal procedure law apply with respect to the obligation to testify or the right to refuse to testify (Art. 9 and 12(1) of the Mutual Legal Assistance Act; see also Art. 163(2) and 168–177 of the Swiss Criminal Procedure Code (CPP), as well as Art. 187(2) in fine of the CPP; Art. 265(2)(b) of the CPP). Art. 65(3) of the Mutual Legal Assistance Act, however, provides that the person being questioned may—in addition to the grounds for refusal provided for under Swiss law—invoke those established by the legislation of the requesting State. Pursuant to this latter provision, the right to refuse to testify is also recognized if giving testimony could result in criminal or disciplinary sanctions in the latter State or in theState of residence of the person being heard. In such a case, the person being heard may be assisted by an attorney (Art. 21, para. 2, EIMP).
28 The right to refuse to testify set forth in Art. 65(3) EIMP is established for the protection of only witnesses and experts. Therefore, persons implicated by them are not entitled to invoke said right.
29 At the beginning of the hearing conducted in Switzerland, the authority conducting the hearing is required to inform the witness or expert being heard of their right to refuse to testify on the grounds provided for under both Swiss law and the law of the requesting State (see Art. 143(1)(c) and Art. 177(3) of the Swiss Criminal Procedure Code; see also , for the examination of experts, Art. 187(2) in fine of the Swiss Criminal Procedure Code, which refers to the provisions governing the examination of witnesses). When providing this information, it is important to take into account—in addition to the foregoing—that the person being heard may also invoke this right if their statements could result in criminal or disciplinary sanctions being imposed on them in the requesting State or in their State of residence. Furthermore, the authority conducting the hearing is also required, during the mutual legal assistance proceedings, to draw the person’s attention to grounds for refusing to testify that were not raised at the beginning of the hearing and which may become apparent from their statements. However, it may be difficult for the Swiss executing authority to provide such information regarding the right to refuse to testify under foreign law, as it may be unaware of its existence, particularly when the hearing is conducted in accordance with the rules prescribed by Swiss law. This lack of knowledge may be due to the fact that no evidence in the case file—in particular, the mutual legal assistance request issued by the foreign authority or the statements made by the person concerned—allows for the conclusion that such a right is recognized for them in the requesting State. In cases where the hearing is conducted in Switzerland in accordance with the rules prescribed by foreign law (Art. 65, paras. 1 and 2, EIMP), full information regarding the right in question is presumed to be guaranteed provided that it results from prior consultation, as well as from cooperation during the hearing, between the foreign authority conducting the procedure and the Swiss executing authority present at the time. However, a difficulty may still arise when those authorities are unaware of the existence of the right to refuse to testify based on the law of the State of residence, which is, by assumption, different from that of the requesting State. Finally, it should be emphasized that insufficient information or its omission may render the information gathered unusable.
III. Cases Covered by Art. 65 of the Mutual Legal Assistance Act (EIMP) as Grounds for Appeal
30 According to the terms of Art. 80i, para. 1, subpar. b of the Mutual Legal Assistance Act (EIMP), an appeal may be filed with the Complaints Chamber of the Federal Criminal Court (see Art. 80e, para. 1 of the EIMP in conjunction with Art. 25(1) EIMP and Art. 37(2)(a) LOAP) may be filed on the grounds of the unlawful or manifestly incorrect application of foreign law, in the cases discussed above and covered by Art. 65 EIMP. A person who is personally and directly affected by a mutual legal assistance measure and who has a legitimate interest in having that measure annulled or modified (Art. 80h, subpar. b, EIMP), may thus raise before the appellate authority grounds of appeal regarding the unlawful or incorrect application of foreign law (procedural rules concerning the examination of witnesses and experts and the admissibility of other evidence), its conformity with Swiss law, as well as the violation of the right to refuse to testify. In this context, the aforementioned court may also examine the inaccurate or incomplete determination of the relevant facts, as well as the appropriateness of the contested decision in accordance with Art. 49(b) and (c) of the Administrative Procedure Act (PA) in conjunction with Art. 37(2)(b) of the Law on Mutual Legal Assistance (LOAP).
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