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- Art. 5a FC
- Art. 6 FC
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- Art. 16 FC
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- Art. 20 FC
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- Art. 29a FC
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- Art. 32 FC
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- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
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- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- 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
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- Art. 19 PRA
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- Art. 30 PRA
- Art. 31 PRA
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- Art. 32a PRA
- Art. 33 PRA
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- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
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- Art. 44 PRA
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- Art. 59c PRA
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- Art. 67 PRA
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- Art. 75 PRA
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- Art. 76a PRA
- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g 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. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 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. 54 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
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 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)
FEDERAL CONSTITUTION
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
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. Genesis of art. 67 IMAC
- II. Absolute prohibition on use (para. 1)
- III. Additional use of information transmitted (para. 2)
- IV. Speciality and early access to information by the requesting state
- V. Legal challenge
- Recommended further reading
- Bibliography
I. Genesis of art. 67 IMAC
1Art. 67 IMAC governs the principle of speciality, which has its origins in extradition law, in the area of minor mutual assistance. While the principle of speciality is well established among the principles governing extradition, to the point of being considered a "principle of the law of nations", its enshrinement in the field of small-scale mutual assistance is rarer, and Switzerland was initially the exception in transposing this principle to the field of small-scale mutual assistance.
2The principle of speciality acts as a safeguard for the rules of small-scale mutual assistance. It is designed to ensure that the information transmitted is used only within the limits authorized by the Swiss authorities, and in accordance with the conditions governing cooperation. This guarantees not only the sovereignty of the requested state, but also the rights of those involved in the mutual assistance procedure.
3In Swiss law, the establishment of the principle of speciality in matters of mutual assistance is linked to the principle of double criminality. At the end of the Second World War, many countries introduced restrictions on the free flow of payments, while at the same time incriminating behaviour that ran counter to them. Switzerland had no such restrictions, and at the time systematically made the granting of mutual assistance conditional on the principle of double criminality. Since such conduct was often combined with ordinary offences, a solution was needed to ensure that Switzerland could meet its commitments to third countries in terms of international cooperation in criminal matters, and that the information transmitted would not be used for purposes for which assistance had not been granted. Subsequently, international cooperation in criminal matters has developed in such a way as to restrict the scope of the double criminality principle in matters of minor mutual assistance. Indeed, the Council of Europe's European Convention on Mutual Assistance in Criminal Matters (ECCJ) does not make the granting of small-scale mutual assistance conditional on double criminality. When signing this convention, Switzerland nevertheless wished to maintain the double criminality requirement for minor mutual assistance, but only in cases where the execution of the request requires the use of coercive measures. A reservation to this effect has therefore been made to art. 5 par. 1 let. a CEEJ. Art. 64 IMAC incorporates the reservation made in art. 5 par. 1 let. a ECCJ into domestic law. Today, the raison d'être of the principle of speciality no longer lies so much in the principle of double criminality, but rather in the fact that Switzerland is unwilling to cooperate with regard to certain offences, particularly those of a fiscal nature.
4Before being included in the IMAC, the principle of speciality in matters of mutual assistance was introduced first by the practice of the Swiss authorities, then expressly in the conventions signed and ratified by Switzerland prior to the law. The reservation made to art. 2 of the ECCJ is the first time this principle has appeared in a legal text. At the time of signing this Convention, the reservation made by Switzerland read as follows: "Switzerland further reserves the right, in special cases, to grant mutual legal assistance under the Convention only on the express condition that the results of investigations carried out in Switzerland and the information contained in the documents or files transmitted shall be used exclusively to investigate and try the offences in respect of which mutual assistance is provided".
5A provision relating to the principle of speciality in matters of minor mutual assistance was then introduced into art. 5 of the Treaty on Mutual Legal Assistance with the United States (TEJUS). It stipulates that "[t]he testimony, statements, documents, records, evidence or other items, including information contained therein, obtained from the requested State by the requesting State on the basis of this Treaty may not, in the requesting State, be used for the purposes of investigations, nor may they be produced as evidence in proceedings relating to an offence other than that for which mutual legal assistance has been granted". Despite the fact that it appears to be more restrictive than the reservation made in art. 2 ECCJ, legal writers consider that its scope does not diverge from the latter. Art. 5 TEJUS is more detailed than the reservation set out in art. 2 CEEJ, since it specifies in paras. 2 and 3 the use that the requesting State may make of the information transmitted, where this differs from the purpose for which assistance was granted, and, where applicable, the condition(s) to which this use is subject.
6The principle of speciality, inspired in particular by art. 5 TEJUS, was enshrined in art. 67 IMAC when this law was adopted. It initially consisted of just two paragraphs, the first of which stipulated that "[i]nformation obtained through mutual assistance may not, in the requesting State, be used for investigative purposes, nor may it be produced as evidence in proceedings for which mutual assistance is excluded. Any other use is subject to the approval of the Federal Office". Art. 67 IMAC was amended when the IMAC was revised in 1997. At issue was the definition of "any other use", which was subject to approval by the FOJ. The second sentence of art. 67 al. 1 aEIMP was therefore transferred to art. 67 al. 2 IMAC, and supplemented by two letters specifying the situations in which the FOJ's approval is not required for a use other than that for which mutual assistance was initially granted. Prior to the revision, Art. 67 para. 2 aEIMP governed the application of the principle of speciality to the acquisition of information by a foreign state in the context of Swiss criminal proceedings. It would appear from the Federal Council's Message that the legislator simply wished to transfer it to art. 67 para. 3 IMAC, without modifying its substance and adapting its wording to "take account of all persons authorized to take part in criminal proceedings in Switzerland as injured parties". In reality, this is not what is apparent from the letter of the law. In fact, the provision now refers to art. 65a IMAC, and no longer deals with the situation in which a person is authorized to consult the file of a Swiss national criminal proceeding, but rather that in which the consultation takes place in the mutual assistance proceeding. The marginal heading of art. 67 IMAC was also changed during the revision, from "[u]se of information" to "[r]egulation of speciality".
7 During the revision, the legislator also modified the proviso to art. 2 CEEJ, to bring it into line with art. 67 IMAC. A new letter c has been added to the reservation, covering the cases provided for in art. 67 al. 2 let. a and b IMAC for which the principle of speciality does not prevent the use of the information transmitted. The reference to "special cases" in letter b of the reservation, criticized by legal writers as undefined and superfluous, has also been deleted.
8Whether initially introduced in art. 67 IMAC in 1981 or revised in 1997, the principle of speciality was not discussed in Parliament, so the provision was adopted, and then amended, according to the version proposed by the Federal Council.
9The difficulty of formulating the principle of speciality in the field of small-scale mutual assistance, as pointed out by the commission of experts charged with drafting the IMAC, can be seen in the fact that the content of these first three enactments differs, although the substance is intended to be the same. There is also a difference in the terms used in the different language versions of these provisions, since in the case of the reservation to art. 2 ECCJ and art. 5 para. 1 TEJUS, the term "strafbaren Handlungen", i.e. the facts for which mutual assistance is granted, is used in German, whereas the French and Italian versions use the terms "infractions" and "reati" respectively. With regard to art. 67 para. 1 IMAC, while the German and French versions agree in that they use the term "Taten", respectively "infractions", the Italian version uses the term "fatti". As a result, the concrete scope of the principle of speciality is difficult to define, and subject not only to divergent opinions in the legal literature, but also to a practice that deviates from the text of the law. As a result, the contours of the principle of speciality are unclear. However, a precise definition of the principle is necessary, in particular to ensure that enforcement authorities correctly and accurately express the reservation of the principle of speciality when responding to a foreign request.
10In its current wording, art. 67 IMAC defines the scope of the principle of speciality by providing, on the one hand, for an absolute prohibition on the use of information (art. 67 al. 1 IMAC; infra II) and, on the other hand, for the additional use of information (art. 67 al. 2 IMAC; infra III.). In the latter category, a distinction is made between additional use subject to authorization by the Federal Office of Justice (art. 67 al. 2 1ère ph. IMAC; infra III. A.) and additional use not subject to authorization (art. 67 al. 2 let. a et b IMAC; infra III. B.). Finally, art. 67 para. 3 IMAC deals with the application of the principle of speciality to one of the mechanisms for early access to information by the requesting state (art. 65a IMAC; infra IV).
II. Absolute prohibition on use (para. 1)
11Art. 67 para. 1 IMAC provides for an absolute prohibition on the use of information and documents transmitted. It stipulates that such information and documents may not be used in the requesting state for the purposes of investigations, nor may they be used as evidence in criminal proceedings relating to an offence for which mutual assistance is excluded. The absolute nature of the prohibition imposed by art. 67 para. 1 IMAC is also apparent from the FOJ's model form concerning the reservation of speciality. The form divides the use of transmitted information into three categories: "permitted use", "excluded use" and "use with prior consent". Configurations covered by art. 67 para. 1 IMAC are essentially included in the "excluded use" category.
12The absolute prohibition on the use of information applies not only to the proceedings for which assistance has been requested, but to all proceedings in the requesting state, whether pending or not, and against the same persons or third parties.
13In contrast to extradition, the prohibition on use in art. 67 para. 1 IMAC has no time limit. Whether a person can waive the application of the principle of speciality in the same way as provided for in art. 38 para. 2 let. a IMAC is a matter of controversy in the legal literature. The answer depends on whether the principle of speciality is intended to safeguard the interests of the requested state or those of the person concerned. Moreover, the person concerned by the execution of the request for mutual assistance is not necessarily the person involved in the foreign criminal proceedings, as is the case with extradition. A waiver of the principle of speciality cannot therefore be envisaged insofar as it would affect the rights of a third party.
A. The scope of the prohibition
14The scope of the prohibition on use imposed by art. 67 para. 1 IMAC is total, encompassing both investigative purposes and production as evidence. In particular, this prohibition is broader than that contained in art. 67a IMAC concerning spontaneous transmission, where secret information transmitted to the foreign state may be used for investigative purposes, but not as evidence. On the other hand, it is similar to the prohibition imposed on persons taking part in the proceedings abroad and assisting in the execution of the request for mutual assistance in Switzerland under art. 65a IMAC.
15For the offences referred to in art. 67 para. 1 IMAC, the authorities of the requesting state may not, on account of this prohibition, use the information transmitted to implement coercive measures and obtain evidence which they would not have been able to obtain without this information. As for using the information to request mutual assistance from another state, this would already fall within the scope of the investigative purposes for which the information may not be used, in view of the absolute prohibition contained in art. 67 para. 1 IMAC. However, legal scholars point out that prohibiting the requesting State from using information provided by the Swiss authorities to request mutual assistance from a third State would constitute an excessive interference in its sovereignty.
B. The offence "for which mutual assistance is excluded"
1. Political, military or fiscal offences
16The notion of "offence for which mutual assistance is excluded" refers in particular to the offences mentioned in art. 3 IMAC which, due to their nature, cannot give rise to cooperation. These include offences of a political, military or fiscal nature, or acts which contravene monetary, commercial or economic policy measures. The nature of the offence is determined in accordance with the conceptions of the requested state, and the requesting state may not rely on the fact that, under its domestic law, the offence concerned falls within the scope of ordinary law.
17The offence of a political nature is not defined by law. The situations covered by this exception are therefore difficult to determine. However, case law distinguishes three categories of political offence: absolute political offence, relative political offence and offence connected with a political offence. The prohibition on using information obtained in criminal proceedings of this nature does not extend to investigative proceedings initiated by a parliamentary committee of the requesting state. The Federal Court held that it would be contradictory to grant mutual assistance for the prosecution of an ordinary offence, without allowing the requesting state to use the information transmitted to decide on the political consequences of the offence committed. He also pointed out that neither art. 2 ECCJ nor art. 3 para. 1 IMAC preclude the use of the information transmitted for political purposes. The answer would be different if the state of affairs the parliamentary committee was concerned with included offences for which mutual assistance is excluded.
18The term "fiscal offence" refers to any act which "appears to be aimed at reducing tax revenues". The prohibition does not extend to tax fraud, for which mutual assistance is permitted (art. 3 al. 3 let. a IMAC). It must also be interpreted in accordance with Switzerland's commitments, so that offences relating to indirect taxation in relations with the Schengen states, for which mutual assistance is permitted (art. 50 and 51 CISA), are not covered by the reservation. The same applies to cooperation with the States party to the Cooperation Agreement between the Swiss Confederation, of the one part, and the European Community and its Member States, of the other part, to combat fraud and any other illegal activity detrimental to their financial interests (AAF).
19 In a 1981 ruling, the Swiss Federal Supreme Court held that the absolute prohibition on the use of information transmitted in tax matters also applied to non-punitive tax proceedings, in particular administrative taxation procedures. Consequently, the Federal Office could not authorize the requesting State to use the information in such proceedings. As this ruling was handed down at a time when Switzerland had not made any commitments to any state with regard to administrative assistance in tax matters, and was systematically refusing to cooperate in this area, this solution should no longer prevail today. Switzerland now also cooperates in tax matters, and has entered into double taxation agreements with many countries. Any additional use of information for non-punitive taxation purposes should therefore no longer be considered as an (absolutely) excluded use, but as an additional use requiring the approval of the FOJ within the meaning of art. 67 para. 2 1st ph. IMAC. The FOJ's guidelines seem to go in the opposite direction, since they stipulate that for "related tax proceedings", "[i]nformation transmitted under primary mutual assistance may not be used in the requesting state in another tax procedure without the FOJ's approval".
2. Facts for which the double criminality condition is not met
20According to case law, the principle of speciality does not preclude the use of information, in the requesting State, to prosecute and judge acts which, in Switzerland, would not constitute an offence. In other words, an offence in the requesting state that does not meet the condition of double criminality is not an "offence for which mutual assistance is excluded".
21Scholarly opinion does not agree with the solution adopted by case law, and considers that the principle of speciality precludes the use of information for the prosecution of facts that do not constitute an offence under Swiss law. Indeed, insofar as art. 64 para. 1 IMAC makes mutual assistance subject to the condition of double criminality, any use of information must be considered excluded when the facts that the requesting state wishes to pursue do not constitute an offence punishable under Swiss law.
22We do not share the criticism of the doctrine. The solution adopted by case law is consistent with the system of mutual legal assistance, since the principle of double criminality only applies, under art. 64 IMAC, if the execution of the foreign request requires the use of coercive measures. In fact, the principle of double criminality is only intended, in matters of minor mutual assistance, to ensure that a person is not subjected, in Switzerland, to coercive measures in favor of a foreign state if, even though the facts had taken place in Switzerland, the authorities would not have been able to implement such measures. Consequently, if the authorities are already in possession of the information, the principle of double criminality is no longer a condition for granting mutual assistance. However, when the question arises of the additional use of information already transmitted abroad, it is no longer necessary to implement new coercive measures.
23The case law solution is also consistent with the principles governing the analysis of the double criminality condition. Unlike in extradition cases, where mutual assistance is requested in respect of different offences, it is sufficient for the facts to constitute a single offence under Swiss law, without the analysis having to be carried out for each of the offences presented.
24Finally, this solution is consistent with a literal analysis of the law. By using the term "offence" (Tat) in art. 67 para. 1 IMAC, the legislator seems to have intended to attribute a specific legal qualification to the state of affairs in which the requesting state is interested, and for which the use of the information transmitted is excluded. This expression is the same as that used in the marginal heading of art. 3 IMAC (nature of the offence; Art der Tat) and it would therefore appear that it does not refer to any act for which mutual assistance is excluded, but rather to the legal qualification of the act concerned. In this respect, the Italian version of art. 67 para. 1 IMAC is confusing in that it uses the term "fatti" and not "reato".
III. Additional use of information transmitted (para. 2)
A. Use subject to approval by the Federal Office of Justice (para. 2, 1st sentence)
25Art. 67 para. 2 1st ph. IMAC provides that "[a]ny other use [of the information transmitted] is subject to the approval of the Federal Office". This sentence establishes the principle of approval. It is very broadly worded, and poses difficulties of interpretation, since it does not specify which "other uses" are concerned. However, making additional uses subject to FOJ approval is an important issue, since it gives rise to rights for those involved in the mutual assistance procedure. When authorization is required, the FOJ has to issue a new decision (known as an "extension of speciality"), which is subject to appeal. The time limit and standing to appeal against this decision are determined in accordance with the rules governing original mutual assistance (i.e. art. 80k IMAC for the time limit and art. 80h IMAC cum 9a OEIMP for standing to appeal).
1. Secondary mutual assistance
26The use of information transmitted in proceedings other than criminal proceedings is subject to the principle of approval. The term "secondary" mutual assistance is used here, insofar as such cooperation necessarily presupposes prior mutual assistance of a strictly criminal nature, known as "primary" mutual assistance. Unlike "primary" mutual assistance, the execution of which is generally entrusted to a public prosecutor, the FOJ is exclusively competent to rule on "secondary" mutual assistance.
27Mutual assistance in criminal matters governed by the IMAC is granted only for proceedings "connected with a criminal case" within the meaning of art. 63 para. 1 IMAC. A request for mutual assistance in criminal matters made with the sole aim of circumventing the rules on mutual assistance in civil or administrative matters would be considered abusive. In other words, a foreign state may not attempt to obtain through mutual assistance in criminal matters - and by applying its more incisive measures - what it could not obtain through mutual assistance in civil or administrative matters. Art. 67 al. 2 1st ph. IMAC is therefore an exception to the principle that in order to obtain the information required for proceedings other than criminal proceedings, the corresponding mutual assistance procedure must be used.
28The FOJ's approval of "secondary" mutual assistance is subject to strict conditions, depending on the nature of the proceedings in which the requesting state wishes to use the information. In the case of civil proceedings, approval may be granted if (i) the subject matter of the proceedings is clearly defined in terms of both substance and the persons concerned, (ii) they are connected with criminal proceedings and (iii) they are intended to compensate persons affected by the offence. In the case of proceedings conducted by a parliamentary committee of inquiry to determine the political consequences of a common law offence, the request must (i) describe with sufficient clarity the political purpose for which the information will be used and (ii) set out a sufficient link between the proceedings conducted by the committee of inquiry and the offence for which mutual assistance was originally granted. Finally, secondary mutual assistance may also be granted for administrative proceedings where it is intended to answer a preliminary question which is decisive for the criminal proceedings for which the information was transmitted, and which is therefore related to the latter. In essence, as Harari points out, the decisive factor for the FOJ's approval in non-criminal proceedings appears to be a sufficiently close connection with the criminal proceedings for which assistance was originally granted.
29The Federal Supreme Court has clarified the boundary between "primary" and "secondary" mutual assistance. It has ruled that any procedure aimed at the restitution to the rightful owner of assets obtained through the commission of an offence, whether criminal, civil or administrative, remains in the category of "primary" mutual assistance, and is therefore not subject to the principle of approval. The same applies a priori to claims for damages by the injured party based on the harm caused by the offence giving rise to the request for mutual assistance. Although it has left the question open, the Federal Court recommends interpreting art. 67 IMAC in accordance with art. 5 par. 3 let. a TEJUS. This latter provision states, in general terms, that information may be used for proceedings concerning the payment of damages in relation to proceedings for which legal assistance has been provided, without making any distinction according to the nature of the claim. The advantage of such a solution is that it sets out a simple criterion - that of a link with proceedings for which mutual legal assistance has been provided - rather than the more complex criterion based on the nature of the claims, which also depends on the law of the requesting state. Moreover, it would be contradictory to prohibit a person from using the information transmitted in separate civil proceedings, whereas no such restriction exists in the case of civil proceedings which are ancillary to the criminal proceedings for which mutual assistance has been granted. In the light of this case law, the clarification in the FOJ's model form that "for Schengen States, no prior agreement is required for civil proceedings joined to criminal proceedings in accordance with art. 49 lit. d of the Convention implementing the Schengen Agreement" appears curious. Apart from being superfluous in the case of the Schengen States, this exception does not appear to be limited to them.
2. Transmission of information to a third country
30The principle of approval also governs the (re-)transmission of information to a third state. The requesting state's application for such approval must set out the details of the proceedings conducted in the third state in sufficient detail, so that the requirements of art. 28 IMAC (respectively art. 14 ECCJ) are met. According to case law, the FOJ must analyze what would have happened to a request for the extension of speciality to a third country if that country had sent it directly to Switzerland. It also follows that the appellant is entitled to invoke all the objections he could have raised if the request had been made directly by the third country (right to be heard, general grounds for refusing mutual assistance, ne bis in idem, proportionality, etc.). The Federal Criminal Court also analyzed the complaint of double criminality, which should not apply under art. 64 para. 1 IMAC, since coercive measures do not, in fact, have to be implemented in Switzerland in response to the request to extend the principle of speciality. Nevertheless, in a judgment concerning a request for extension of the principle of speciality by Bulgaria in favor of Italy, it held that "[t]he surrender of bank documents is a measure of constraint within the meaning of art. 63 al. 2 let. c IMAC, which can only be ordered, according to art. 64 al. 1 IMAC [...] if the state of facts set out in the request corresponds to the objective elements of an offence punishable under Swiss law". The handing over of bank documents is an act of mutual assistance, but cannot be considered as a measure of coercion. Coercion may be applied beforehand, when the documents are collected. Thus, the principle of double jeopardy only applies if it is assumed that the executing authority has taken coercive measures in response to a direct request from the third country.
31The situation is different where the requesting State wishes to use the information transmitted to submit a request for mutual assistance to a third State. Such use of information is not subject to the principle of approval. The requesting state is authorized to make full use of the information in the proceedings for which assistance has been granted, and is limited only by its own criminal procedural law. Nor is the transmission of information to another criminal authority in the requesting state subject to the principle of approval.
32Exceptions to the application of the approval principle for the (re-)transmission of information to a third state may arise from international conventions or treaties that Switzerland has ratified. This is particularly the case with art. 5 par. 2 to 5 AAF, which authorizes the contracting parties to freely (re-)transmit information obtained in application of the agreement, provided it is not intended for use in proceedings for which mutual assistance is excluded. Moreover, art. 5 para. 3 AAF specifies that such (re-)transmission is not subject to appeal in the contracting party initially requested.
33 With regard to the law applicable to such a request for extension of the principle of speciality, the Federal Criminal Court appears to base itself both on the law governing relations with the requesting State and on the law applicable to the third State in whose favor the request for extension has been made. However, its case law does not specify which aspects of the request are governed by the law applicable to the requesting state and which by the law applicable to the third state. However, since the Federal Criminal Court holds that the Swiss authority deciding on a request for extension is obliged to analyze what would have been the fate of the request had it been addressed directly to Switzerland, we consider that the conditions for extension are governed exclusively by the law applying between Switzerland and the third country. The law applicable between Switzerland and the requesting state only applies to those aspects strictly related to the principle of speciality, and more specifically to its scope and limits.
3. The use of information in other criminal proceedings (controversy)
34More controversial is the question of whether the use of information in criminal proceedings other than those for which assistance was originally granted is subject to the principle of approval. This additional use can be described as "proper" in the sense that the facts against which the requesting State wishes to use the information differ from the facts for which mutual assistance was originally granted.
35The majority of legal writers consider that any additional use of information in criminal proceedings other than those for which assistance was originally granted is subject to approval by the FOJ, pursuant to art. 67 para. 2 IMAC. This interpretation of the principle of speciality is corroborated by the Federal Council's 1995 message on the revision of the IMAC, which states in general terms that "the State wishing to use the information in other proceedings must submit a supplementary request", without making any distinction according to the nature of the proceedings concerned.
36Practice, on the other hand, adopts a much more flexible interpretation of the principle of speciality, according to which the requesting State may freely use the information transmitted, not only in the criminal proceedings for which mutual assistance has been granted, but also in any other criminal proceedings. The only restriction is that the information must not be used to prosecute or try an offence for which mutual assistance is excluded under art. 67 para. 1 IMAC. According to the FOJ, the information transmitted may thus "be used freely in the proceedings for which mutual assistance was requested, as well as in any other criminal proceedings conducted in the requesting state". The model form for the reservation of speciality also stipulates that "[t]he evidence and information obtained through mutual assistance may be used in the requesting State for investigative purposes and as evidence in the criminal proceedings for which mutual assistance has been requested, as well as in any other criminal proceedings". As for jurisprudence, while it seemed to hold, in two rulings dating back to 1986, that the use of information in (criminal) proceedings other than those for which mutual assistance had been granted was subject to approval by the FOJ, it now holds that this is not the case. Going beyond the wording of the law, it applies the principle of approval only if the requesting state wishes to use the information for additional proceedings that are not criminal in nature.
37In our view, a satisfactory response to this controversy requires following the text of the law. It is clear from this that the exceptions to the principle of approval are exhaustively listed in art. 67 al. 2 let. a and b IMAC. Thus, if the additional criminal proceedings that the requesting state wishes to carry out do not fall within the scope of art. 67 al. 2 let. a and b IMAC, they must be submitted to the FOJ for approval. However, the additional use "proper" to which we refer here is not covered by the exceptions of art. 67 al. 2 let. a and b IMAC.
B. Use not subject to approval by the Federal Office of Justice
38Letters a and b of art. 67 al. 2 IMAC govern exceptions to the principle of approval. They deal with a use of the information which differs from that for which assistance was granted, but which is not subject to approval by the FOJ. This additional use may be termed "improper use" or "alternative use", insofar as the facts underlying the request - and for which the requesting state wishes to use the information - remain unchanged, with a change occurring only in the legal characterization of the facts or in the circle of persons to whom the state of affairs is attributed.
1. The new legal characterization of the facts (para. 2 let. a)
39Art. 67 para. 2 let. a IMAC stipulates that the FOJ's approval is not required if the facts giving rise to the request constitute another offence for which mutual assistance may be granted. In order to determine whether the requesting State wishes to use the information in an alternative manner, but still for the same facts, Fiolka proposes using the criterion of "identity of material facts, understood as the existence of a set of facts indissociably linked together", developed by the CJEU in its case law concerning the ne bis in idem principle enshrined in art. 54 CISA. In our view, this criterion is too narrow. On the one hand, it is inconsistent with the text of the law, which does not limit itself to authorizing a legal re-characterization of the offence, but rather a new legal characterization of the facts. Secondly, it would lead to an excessively strict application of the principle of speciality, which would not be compatible with the Swiss system of judicial cooperation. Indeed, mutual legal assistance is governed by the principle of proportionality, analyzed from the angle of potential usefulness. In this respect, case law regularly reminds us that "[i]t is the very nature of mutual assistance to promote the discovery of facts, information and evidence, including those of which the foreign prosecuting authority is unaware. The aim is not only to help the requesting state prove facts uncovered by its own investigation, but also to uncover others if they exist. For the executing authority, this implies a duty of completeness, which justifies communicating all the elements it has gathered that may be of use to the foreign investigation, in order to shed light on all aspects of the criminal mechanism being pursued in the requesting State". The Swiss authorities are thus called upon to actively assist the requesting State in the proceedings it is conducting. A conception of the same facts in art. 67 para. 2 let. a IMAC, such as that derived from art. 54 CISA, would not be reconcilable with this broad interpretation of the principle of proportionality. The broad transmission of information as advocated by case law would be irrelevant if the requesting state could not use it from the outset. In a case of mutual assistance with Spain, the Swiss Federal Supreme Court held that information transmitted in connection with drug trafficking offences could be freely used by the requesting state to prosecute and try money laundering offences "closely connected" with the first proceedings. Thus, the facts at the origin of the request must be broadly understood as facts that form part of the criminal mechanism presented by the requesting State.
40The requesting State remains limited as to the new legal characterization of the facts by art. 67 para. 1 IMAC. The facts cannot be analyzed from the angle of an offence for which mutual assistance is excluded. Furthermore, where the requesting state wishes to use the information to analyze the facts from the perspective of tax fraud, the exception in art. 67 al. 2 let. a IMAC does not apply, and the FOJ's approval is required. This requirement ensures that the information is not used in proceedings relating to an offence for which mutual assistance is excluded, particularly as the nature of the offence is determined by the law of the requested state.
2. Use of information against other persons involved in the offence (para. 2 let. b)
41The second exception to the principle of approval is governed by art. 67 para. 2 let. b IMAC and concerns the use of information against persons other than those named in the request for mutual assistance. For such use to be permissible, the letter of the law stipulates that the persons concerned must have "participated in the commission of the offence". We agree with Fiolka, for whom this exception concerns the fact presented in the request, determined from the angle of the principles developed with regard to art. 54 CAAS. If the information is used against persons who have committed another offence which is nevertheless part of the criminal mechanism presented in the request, the exception in art. 67 al. 2 let. a IMAC will apply in accordance with what we have retained supra n. 39.
42The notion of "persons having participated in the commission of the offence" is not clearly defined. Case law has never ruled on this aspect, while evasively mentioning that the notion concerns the "Mittäter etc.". In our view, it refers to any form of participation, whether principal (co-activity, mediation) or accessory (complicity, instigation).
43 The solution adopted in art. 67 para. 2 let. b IMAC differs from that of TEJUS, which allows the use of information against persons suspected or accused of having participated in an offence for which mutual legal assistance has been granted, or of having promoted such an offence, on condition that the requested State has been able to "give its opinion" (art. 5 para. 2 let. b TEJUS).
IV. Speciality and early access to information by the requesting state
A. In the presence of persons participating in foreign proceedings (art. 65a IMAC) (para. 3)
44Art. 67 para. 3 IMAC specifies that the principle of speciality also applies when persons participating in foreign proceedings are authorized to be present at the execution of the request for mutual assistance (art. 65a IMAC). This provision applies only to information arising from the mutual assistance proceedings in which the person is exceptionally authorized to take part. It does not (or at least no longer) govern the situation in which a person becomes aware of information in Swiss criminal proceedings. Nevertheless, as far as the foreign authority is concerned, the principle of speciality will also apply in this case, by virtue of art. 34 al. 2 OEIMP, which stipulates that if a foreign authority receives authorization to consult a Swiss file outside mutual assistance proceedings, the Swiss authorities must draw its attention to the fact that the information provided may not be used in proceedings for which mutual assistance is excluded (art. 34 al. 1 let. a OEIMP) and that any other use of the information is subject to the consent of the Federal Office (art. 34 al. 1 let. b OEIMP). On the other hand, the principle of speciality cannot be invoked against a foreign, non-state plaintiff who has acquired knowledge of the information by consulting the file of Swiss domestic criminal proceedings and wishes to use it in civil proceedings abroad.
45Art. 67 para. 3 IMAC was introduced in the 1997 revision and refers directly to art. 65a IMAC, also introduced at that time. In view of the latter provision, the reservation made in art. 67 para. 3 IMAC in favour of the principle of speciality seems superfluous. In fact, art. 65a para. 3 IMAC stipulates that the presence of persons participating in the proceedings abroad in the mutual assistance procedure "may not result in facts falling within the sphere of secrecy being brought to their knowledge before the competent authority has ruled on the granting and scope of mutual assistance". Case law interprets this provision as meaning that "consultation of the file must be carried out in such a way as to ensure that no information of use to the requesting authority reaches it before the closing decision has come into force". This is embodied in the obligation on the requesting State to provide guarantees, prior to consultation of the file, whereby it undertakes to adopt a passive attitude and not to make any use, either for investigative purposes or as evidence, of the information of which it becomes aware, before it is transmitted to it by virtue of the closing decision. It follows that the mechanism of art. 65a IMAC - like that of art. 67a IMAC to which we refer - already provides cautèles aimed at preventing the use of information contrary to art. 67 IMAC.
B. Spontaneous transmission (art. 67a IMAC)
46Art. 67 IMAC does not apply directly to spontaneous transmission (art. 67a IMAC). However, the principle of speciality also applies in this area, but in an "adapted" form, according to case law, derived from art. 67a para. 5 IMAC. In fact, the system set up by art. 67a IMAC provides for safeguards which restrict the foreign state's power of disposal over the information transmitted, and which have the effect of guaranteeing compliance with the principle of speciality set out in art. 67 IMAC. The same applies a priori to the system set up by art. 80dbis IMAC (advance transmission of information and evidence) and art. 80dter ff IMAC (governing joint investigation teams). In other words, as far as spontaneous transmission is concerned, art. 67a para. 5 IMAC acts, among other things, as a "safety net for the safety net" of mutual assistance rules on spontaneous transmission.
47Art. 67a para. 5 IMAC has two main aspects. The first is that the Swiss authorities must not spontaneously transmit secret information to the foreign state if it appears from the outset that this concerns an offence for which mutual assistance is excluded. The second is that the information must be used in the requesting state solely for investigative purposes, in particular to submit a request for mutual assistance to Switzerland. It may not be used as evidence. Such use of the information will only be possible once mutual assistance - if requested - has been granted. In this case, the transmission of information will follow the ordinary procedure ending with the closing decision, which will reserve the principle of speciality (art. 67 IMAC).
V. Legal challenge
48In mutual assistance proceedings in Switzerland, as the requested state, the risk of violation of the principle of speciality may be raised in the appeal against the closing decision. In theory, such a risk could lead the Swiss authorities to refuse mutual assistance. It can only be raised by the person entitled to appeal against the decision (art. 80h IMAC cum 9a OEIMP), and the alleged risk must be likely to affect him or her personally. In other words, the risk cannot be invoked to protect the interests of third parties. As the principle of trust prevails in international relations, the chances of success of such a claim are slim, given that, to our knowledge, it has never yet been accepted by the courts. Moreover, a past violation by the requesting State of the principle of speciality is not sufficient to establish the existence of such a risk and break the trust that reigns in inter-State relations.
49An appeal may also be lodged in Switzerland, as the requested state, against the decision to extend speciality. Standing to appeal is determined according to the rules governing standing to appeal against the decision to close the procedure, i.e. under art. 80h IMAC cum 9a OEIMP. The consequence of this is that if the extension of speciality is granted in favour of using the information against a third party mentioned in the banking documentation but who is not the holder of the account which was the subject of the original request for mutual assistance (art. 9a let. a OEIMP and the relevant case law), this person should probably not be granted standing to appeal against the extension decision. The same applies, mutatis mutandis, to an extension decision in favor of the use of information against a person who has not been directly subjected to the search within the meaning of art. 9a let. b OEIMP (and the relevant case law).
50 If the requesting state does not respect the principle of speciality once the information has been transmitted, the persons concerned have no real legal means, in Switzerland as the requested state, to complain about this violation. The most they can do is report the matter to the FOJ, which will decide on the consequences of the violation for future relations with the requesting state. There is no right to demand a reaction from the Swiss authorities, in particular by ordering the requesting state to destroy or return the information transmitted. Violation of the principle of speciality may be invoked in foreign proceedings in order to exclude evidence considered unlawful, it being specified that the existence of this legal remedy depends exclusively on the law of the foreign state.
Recommended further reading
Bernasconi Paolo, Internationale Amts- und Rechtshilfe bei Einziehung, organisiertem Verbrechen und Geldwäscherei, in : Schmid Niklaus et al. (édit.), Kommentar Einziehung, Organisiertes Verbrechen, Geldwäscherei, Band II, p. 143 ss.
Opel Andrea, Neuausrichtung der schweizerischen Abkommenspolitik in Steuersachen: Amtshilfe nach dem OECD-Standard, Eine rechtliche Würdigung, Berne 2015.
Schultz Hans, Das schweizerische Auslieferungsrecht, Mit einem Exkurs über die räumliche Geltung des Strafgesetzes, Bâle 1953.
Bibliography
Bernasconi Paolo, La cooperatione riguardante la frode fiscale secondo il nuovo Accordo italo-svizzero di assistenza giudiziaria penale, il fisco 1998 p. 13007 ss.
Bomio Giorgio/Glassey David, La qualité pour recourir dans le domaine de l’entraide judiciaire internationale en matière pénale, La quête du juste équilibre entre efficacité et protection des libertés, Jusletter 13 décembre 2010 https://jusletter.weblaw.ch/juslissues/2010/597/_8870.html__ONCE (consulté le 7.2.2023).
De Capitani Werner, Internationale Rechtshilfe eine Standortbestimmung, Strafsachen und Verwaltungssachen, RDS 1981 p. 365 ss.
Donatsch Andreas et al., Internationale Rechtshilfe, Unter Einbezug der Amtshilfe im Steuerrecht, 2e éd., Genève/Zurich/Bâle 2015.
Gauthier Jean, La nouvelle législation suisse sur l’entraide internationale en matière pénale, RPS 1984 p. 51 ss.
Gstöhl Caroline, Geheimnisschutz im Verfahren der internationalen Rechtshilfe in Strafsachen, Berne 2008.
Harari Maurice, L’évolution récente en matière d’entraide pénale : des interrogations demeurent, in : Gani Raphael (édit.), Récents développements en matière d’entraide civile, pénale et administrative, Lausanne 2004, p. 103 ss.
Ludwiczak Maria, À la croisée des chemins du CPP et de l’EIMP – la problématique de l’accès au dossier, RPS 2015 p. 295 ss (cité : Ludwiczak, À la croisée des chemins).
Ludwiczak Glassey Maria, Entraide judiciaire internationale en matière pénale, Précis de droit suisse, Bâle 2018 (cité : Ludwiczak Glassey, Précis)
Ludwiczak Glassey Maria/Bonzanigo Francesca, L’artificielle distinction entre « informations » et « moyens de preuve » en entraide pénale internationale, RPS 2022 p. 402 ss.
Markees Curt, Aktuelle Fragen aus dem Gebiete der internationalen Rechtshilfe, RPS 1973 p. 230 ss (cité Markees, RPS 1973).
Markees Curt, Die Rechtshilfe in Strafsachen im Verkehr mit den USA nach dem Vertrag vom 25.5.1973 und dem Bundesgesetz vom 3.10.1975, RPS 1978 p. 113 ss (cité : Markees, RPS 1978).
Markees Curt, Entraide international en matière pénale, Loi fédérale du 20 mars 1981 (EIMP) III : Troisième partie : Autres actes d’entraide, FJS 423c, 1983 (cité : Markees, FJS 423c).
Moreillon Laurent (édit.), Entraide internationale en matière pénale, EIMP, TEJUS, LTEJUS, TEXUS, Commentaire romand, Bâle 2004.
Neyroud Philippe, Entraide judiciaire internationale en matière pénale, in : Junod Charles-André/Hirsch Alain (édit.), Colloque L’entraide judiciaire internationale en matière pénale, civile, administrative et fiscale, Genève 1986, p. 15 ss.
Niggli Marcel Alexander/Heimgartner Stefan (édit.), Internationales Strafrecht, IRSG, GwÜ, Basler Kommentar, Bâle 2015.
Popp Peter, Grundzüge der internationalen Rechtshile in Strafsachen, Bâle 2001.
Schmid Pierre et al., L’entraide judiciaire internationale en matière pénale, RDS 1981 p. 247 ss.
Schultz Hans, Secret bancaire e entraide judiciaire internationale en matière pénale, Société de banque suisse 1982 (cité : Schultz, Secret bancaire).
Schultz Hans, Struttura generale della nuova legge svizzera sulla assistenza internationale in materia penale, in : Broggini (édit.), L’assistenza internationale in materia penale, Milan 1983, p. 15 ss (cité : Schultz, Struttura generale).
Unseld Lea, Internationale Rechtshilfe im Steuerrecht, Akzessorische Rechtshilfe, Auslieferung und Vollstreckungshile bei Fiskaldelikten, Genève/Zurich/Bâle 2011.
Zimmermann Robert, Communication d’informations et de renseignements pour les besoins de l’entraide judiciaire internationale en matière pénale : un paradigme perdu ?, in PJA 2007 p. 62 ss (cité : Zimmermann, Communication).
Zimmermann Robert, La coopération judiciaire internationale en matière pénale, 5e éd., Berne 2019 (cité : Zimmermann, Coopération).