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- Art. 3 FC
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- Art. 55 FC
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- 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
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- 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
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- Art. 30 PRA
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- Art. 32 PRA
- Art. 32a PRA
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- Art. 58 PRA
- Art. 59a PRA
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- Art. 59c PRA
- Art. 62 PRA
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- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 73 PRA
- Art. 73a PRA
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- Art. 75a 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
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- 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. History
- II. Classification of the provision in the context of international criminal law cooperation
- III. Detailed regulatory content of Art. 67a IMAC
- Bibliography
- Materials
I. History
1 In 1997, Art. 67a IMAC entered into force. It was described by the then Minister of Justice, Mr. Koller, as an “important innovation in the Mutual Assistance Act”. The Federal Council considered the new provision on unsolicited transmission as a modern means of combating organized crime and cross-border economic crime; the aim was to prevent the misuse of Switzerland as a financial center for such purposes. In view of the fact that the criminal acts were considered to be spread across different countries, thus preventing the relevant conduct from being prosecuted, (new) official counter-strategies were considered indispensable, with a particular focus on increasing the effectiveness of international criminal law cooperation. Art. 67a IMAC provided a paradigm shift: The unsolicited transmission regulated here breaks away from the typical request principle of international mutual assistance in criminal matters, according to which mutual assistance in criminal matters is provided solely upon request (request) by the requesting state to the requested state. If information and certain evidence can also be transmitted to another state without being requested, this should enable the Swiss authorities to play an active role in preventing useful circumstances for criminal proceedings abroad from going untapped because the competent authority there is not even aware of them. In addition, Art. 67a IMAC was created with the aim of establishing the criminally relevant circumstances in connection with international crime as quickly as possible.
2 During the parliamentary debates, Art. 67a IMAC was not without controversy. For example, the lack of legal protection in connection with unsolicited transmission was criticized: efficiency must find its limit where the rule of law is endangered. According to the provision, the possibility of passing on secret information to third parties without being asked threatens to unhinge the entire Mutual Assistance Act. Ultimately, Parliament rejected the proposal, which was raised during its deliberations, to restrict the scope of Art. 67a IMAC to serious acts with international implications, but added Para. 6 (obligation to record unsolicited transmissions).
3 The creation of an unsolicited transmission option as an instrument of mutual assistance should be seen in the context of Switzerland's 1993 ratification of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime of November 8, 1990 (the “MLA”). Art. 10 of the Money Laundering Convention contains a provision on the “spontaneous transmission of information”. Art. 67a of the IMAC is regarded as its – more extensive – domestic implementation, in particular because it refers not only to information but also to evidence.
4 However, unsolicited assistance for foreign authorities was not a new phenomenon when Art. 67a IMAC was created: on the one hand, corresponding instruments relating to information were already established as part of police cooperation at the time, and on the other hand, unsolicited assistance was sometimes provided praeter legem (as “entraide sauvage”).
II. Classification of the provision in the context of international criminal law cooperation
A. Characteristic: exception to the request principle in mutual assistance
5 The authorization of Swiss mutual assistance in criminal matters to foreign countries without a corresponding prior request constitutes the actual raison d'être of Art. 67a IMAC: information and certain evidence can be transmitted by the Swiss authorities to foreign countries in accordance with the marginal note “unsolicited” (spontaneously) – i.e. without the existence of a corresponding foreign request for legal assistance – by way of mutual assistance. The absence of a request means eo ipso that a final procedural order specifically with regard to unsolicited submissions is no longer required, since Art. 80d IMAC explicitly requires a completed request for such an order. Accordingly, Art. 67a IMAC can ultimately be seen in the context of the instruments of so-called dynamic legal assistance: Their common denominator is that, for reasons of effectiveness and expediency, mutual assistance is provided to foreign countries without a final decree at all, as in the case of Art. 67a IMAC, or, as in the case of an early transmission under Art. 80dbis IMAC, at least before the final decree takes legal effect.
6 The waiver of a request for mutual assistance has significant consequences:
In the case of an unsolicited transfer, the subject matter of the transfer cannot be restricted to the requests made in the request for mutual assistance, which raises doubts with regard to the principle of proportionality.
Furthermore, it is precisely the request, namely the description of the facts attached to it (see, for example, Art. 28 para. 3 let. a IMAC), that forms the starting point for the examination to be carried out by the requested state as to whether the conditions for granting mutual assistance are met or whether there are no obstacles to such assistance.
Finally, there are far-reaching consequences for legal protection in connection with unsolicited transmissions: It is precisely the final ruling – which does not exist in the case of Art. 67a IMAC – that opens up the (preventive) legal process in the IMAC system.
B. Systematic location in the law
7 As a provision of Part Three of the Act, Art. 67a IMAC refers exclusively to 'other' ('limited') mutual assistance. The handover of the objects referred to in the provision (evidence and information) is also a feasible legal assistance measure within the framework of 'other' legal assistance (see Art. 63 IMAC: information, procedural acts permitted under Swiss law and other official acts). The other forms of international mutual assistance in criminal matters (see Art. 1 para. 1 IMAC) are not accessible to unsolicited execution based on Art. 67a IMAC: Switzerland cannot extradite unsolicitedly, nor prosecute vicariously without a corresponding request, nor execute a criminal judgment vicariously. However, there is the possibility that an unsolicited transmission by Switzerland in accordance with Art. 67a IMAC could lead to a later request (concerning all forms of mutual assistance) addressed to Switzerland.
C. Demarcation
1. Within international mutual assistance in criminal matters
a. Ordinary mutual assistance upon a foreign request
8 If Switzerland provides international mutual assistance in criminal matters upon a request addressed to it, then, precisely because of the existence of the request, it is, by definition, not an unsolicited transmission; recourse to Art. 67a IMAC is out of the question. The specifics that apply in this regard, namely the limited legal protection, do not apply. There is no right of choice for the Swiss authorities: if a request for legal assistance is covered by a request, they may not transmit unsolicited information. However, a point of contact may arise if the request for legal assistance has been made on the basis of a prior unsolicited transmission (in particular Art. 67a para. 5 IMAC). In this case, it can also be argued against the final decree issued in the ordinary legal assistance proceedings that the conditions for the unsolicited transmission that took place were not met at the time.
9 Against this background, the interpretation of requests for mutual assistance addressed to Switzerland in terms of their content or scope proves to be central in connection with Art. 67a IMAC. The starting point here is the prohibition of excess, derived from the principle of proportionality, according to which the request may not go beyond the requests made in the request. Nevertheless, Switzerland interprets the request submitted to it broadly, in accordance with the purpose of the legal assistance sought, i.e. generously in favor of the requesting state: The request should cover any assistance, even if not explicitly mentioned, that may be considered potentially relevant for the other state. This includes not only incriminating circumstances with regard to a criminal offense under foreign criminal law, but also those that may have an exculpatory effect with regard to the allegations under investigation. The interpretation practice therefore has an overall restrictive effect on the scope of application of Art. 67a of the IMAC.
10 In the context of distinguishing spontaneous transmission of information from mutual assistance provided in response to a request, two special cases must be considered:
It is not considered spontaneous transmission if Switzerland returns a request addressed to it to the requesting state for the purpose of improvement or supplementation (Art. 78 para. 3 IMAC, Art. 28 para. 6 IMAC) or asks it follow-up questions (Art. 80o. IMAC): there is again a reference to a request, which specifically excludes the application of Art. 67a. IMAC.
Under the heading of “provisional measures”, the Federal Office of Justice is granted the authority under Art. 18 para. 2 IMAC to maintain the status quo (in particular to secure endangered evidence) or to protect threatened legal interests in the event of imminent danger, even if no request for mutual assistance has yet been submitted, provided that it has merely been announced. These measures are lifted if the other state does not submit a request by the deadline. This ultimately irrevocable link to a request shows that Art. 18 para. 2 IMAC does not concern unsolicited transmission. Furthermore, the provision does not confer any authority to actually provide mutual assistance, but is aimed solely at ensuring that it is provided domestically.
b. Active mutual assistance on the part of Switzerland
11 The fact that there is no request addressed to Switzerland means that the unsolicited transmission does not become active mutual assistance in the sense that Switzerland would request mutual assistance from abroad. Rather, Art. 67a IMAC is a special case of passive mutual assistance: Switzerland provides mutual assistance under Art. 67a IMAC even though it is not based on a prior request that would include the specific assistance. Thus, unlike a Swiss request for legal assistance, the unsolicited transmission primarily serves the interests of the (other) state that receives it. Following the unsolicited transmission, the latter either does not contact Switzerland because it does not require any further assistance, or it submits a (proper) request for legal assistance to Switzerland based on the information obtained through the unsolicited transmission.
12 According to Federal Supreme Court case law, active mutual assistance requested by Switzerland (subsequent) precludes unsolicited transmissions.
2. Mutual assistance external context
a. International administrative assistance
13 Administrative assistance is a different form of cross-border cooperation between authorities that is relevant in practice and should be distinguished from mutual assistance. In particular, the procedures and legal protection are structured differently in each case. In the context of Art. 67a IMAC, administrative assistance-based cooperation is occasionally mentioned, especially since the provision also refers to information that is typically passed on on the basis of administrative assistance. An unsolicited transmission of information based on Art. 67a IMAC in accordance with Art. 67a para. 5 IMAC should therefore be referred to as an “administrative assistance-like spontaneous transmission”. This dogmatic observation does not alter the fact that unsolicited transmissions under Art. 67a IMAC are, at least in principle, based on the principles of mutual legal assistance, given the legal basis. For example, the legal protection in connection with Art. 67a IMAC – to the extent that it exists – is generally exercised in the first instance by the Federal Criminal Court, which is the competent court for matters of mutual assistance, and not by the Federal Administrative Court, which is usually the court of first instance for administrative assistance.
b. International police cooperation
14 Art. 67a IMAC governs unsolicited transfers by law enforcement authorities, which in this context specifically excludes police authorities. However, the legal bases for specific police cooperation that are relevant for their international cooperation sometimes also contain provisions on transfers without prior request. Examples of bilateral agreements are Art. 11 of the Swiss-German police treaty (“information transmission without request”) or Art. 11 of the agreement between the Swiss Federal Council and the French Republic on cross-border cooperation in justice, police and customs matters (“unrequested cooperation”, regarding information). Art. 46 of the Schengen Convention also provides a legal basis for the international spontaneous transmission of information in the context of police cooperation.
D. International legal bases for unsolicited (mutual assistance) transmission
1. Overview
15 Apart from the Swiss federal legal basis according to Art. 67a of the IMAC, regulations concerning the provision of mutual assistance without prior request can also be found in international treaties. Of particular relevance to European mutual assistance is Art. 11 of the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters of 2001 (“Spontaneous Information”). In addition, bilateral mutual assistance treaties that Switzerland has concluded – as supplementary treaties to the European Mutual Assistance Convention (EMAC) or outside the European judicial area (e.g. with Mexico or Brazil) – must be observed. Sector-specific international treaties may also contain corresponding legal assistance provisions (e.g. Art. 10 of the United Nations Convention against Transnational Organized Crime in connection with combating money laundering or Art. 46 para. 4, para. 5 of the United Nations Convention against Corruption with regard to combating corruption). Spontaneous transmission – of evidence and information – is then countered in the legal assistance relationship between Switzerland and the European Union.
2. Relationship to Art. 67a IMAC
16 The existence of international treaty provisions concerning unsolicited transmission also requires a determination of when the Swiss authorities, in an individual case, rely on unsolicited transmission for an intended legal assistance service and when, on the other hand, action is to be taken in accordance with Art. 67a IMAC. It is also questionable whether Switzerland can resort to Art. 67a IMAC in the context of treaty-based mutual assistance if the relevant international treaty does not specifically regulate unsolicited transmission.
17 The starting point is Art. 1 para. 1 IMAC: in accordance with the general primacy of public international law over domestic law under Swiss law, the IMAC applies only to the extent that “international agreements do not provide otherwise”. Consequently, unsolicited transmission is governed primarily by the general rules, in accordance with any existing international treaty provisions of a self-executing nature that are to be observed in mutual assistance with the respective state. Nevertheless, Art. 67a IMAC is also relevant in mutual assistance practice in contractual relations:
On the one hand, international treaty provisions regarding unsolicited transmission contain references back to national law, so that Art. 67a IMAC is also relevant. Incidentally, according to the case law of the Federal Supreme Court, such an express reservation is even dispensable: if the international treaties contain mere “may” provisions for unsolicited transfers, no mutual assistance that goes beyond national law (more permissive) may be provided on the basis of them. Overall, Art. 67a IMAC consequently substantiates the international law provisions, if more restrictive in individual cases.
In connection with the application of Art. 67a IMAC, the case law also relies on the principle of favorability under mutual assistance law, according to which the IMAC also applies to treaty-based mutual assistance if “Swiss domestic law sets lower requirements for mutual assistance.” In concrete terms, this means in particular that the mutual assistance instruments available on a treaty basis are extended in individual cases to include the options provided for under domestic law. With regard to Swiss-Ukrainian mutual assistance, the Federal Supreme Court explicitly linked Art. 67a IMAC with considerations of favorability: According to the court, Art. 67a IMAC aims to serve as a legal basis for the unsolicited transmission of information and evidence to all states that are not linked to Switzerland by a treaty with an equivalent standard. Since mutual assistance between Switzerland and Ukraine was at the time handled solely on the basis of the 1951 Convention, which itself contains no provision regarding unsolicited transmission, the Federal Supreme Court considered the supplementary recourse to Art. 67a of the IMAC to be legitimate. Based on the favorability principle, Art. 67a IMAC thus comes into play if the applicable treaty contains no such provision or a less far-reaching one, i.e. one that is less permissive with regard to the permissibility of unsolicited transmission.
The principle of favorability under the law of mutual assistance has meanwhile been criticized in legal writing. In general, the accompanying facilitation of the broadest possible mutual assistance – in view of the often conflicting individual interests that must also be taken into account in international criminal proceedings conducted on the basis of the international division of labor – is seen as one-sided in a way that is to be rejected. In the specific context of unsolicited transmission, the article convincingly points to the protection of individuals inherent in Art. 67a Para. 3 IMAC (requiring either a treaty basis or the consent of the Federal Office of Justice), which specifically requires a the national law, e.g. with regard to the scope of application or the means of transmission, to apply a more restrictive state treaty provision regarding unsolicited transmission, without enabling (unsolicited) legal assistance via Art. 67a IMAC.
E. Practical relevance of Art. 67a IMAC
18 Pursuant to the duty of the Swiss authorities providing unsolicited information, as established by the Federal Supreme Court, to inform the Federal Office of Justice – which is the supervisory authority for international mutual assistance in criminal matters (see Art. 3 IMAC) – about all mutual assistance provided on the basis of Art. 67a IMAC, statistical material is available regarding the practical relevance of Art. 67a IMAC: While 117 cases are listed for 2023, there were 128 in 2022 and 116 in 2021. The previous high was reached in 2020, with 168 unsolicited transmissions.
19 As far as can be seen from the available case law, the practice exclusively relies on Art. 67a IMAC in order to unsolicitedly transmit information concerning the secret area to foreign countries (para. 5). The possibility of transmitting evidence not concerning the secret area (para. 1, 4), which is also included in the provision, does not appear to be used.
III. Detailed regulatory content of Art. 67a IMAC
A. Overview
20 The provision of international mutual legal assistance by Switzerland requires a legal basis, particularly in view of its relevance to individual rights, but also due to the official secrecy that binds Swiss (criminal) authorities and is punishable under Art. 320 SCC. Art. 67a IMAC governs when and under what circumstances mutual assistance can be provided to foreign countries without a request from Switzerland, and thus allows the authorities involved to deliberately lift official secrecy.
1. The forms of unsolicited transmission in accordance with Art. 67a IMAC
a. Related to the subject of the transmission: information or evidence (not concerning the secret area)
21 Art. 67a IMAC inherently differentiates between evidence and information. In principle, both categories can be the subject of an unsolicited transmission, but the law treats them differently: if the secret area is affected, evidence, unlike information, which can in principle be transmitted, cannot be handed over under Art. 67a IMAC (cf. paras. 4 and 5).
b. With regard to the (non-)existence of a mutual assistance request: advance and supplementary forms
22 Depending on whether the unsolicited transmission by Switzerland occurs in parallel with a request for mutual assistance that the foreign state has submitted to Switzerland, or not (independently), a distinction is made between a “forme complémentaire” (complementary to a request) and a “forme anticipée” (anticipating a request):
According to the Federal Supreme Court's definition, the “anticipée” refers to unsolicited transmissions that take place independently of any mutual assistance proceedings (“indépendamment de toute procédure d'entraide”) and that are likely to result in a request for mutual assistance (see Art. 67a para. 5 IMAC).
In the case of the “forme complémentaire”, information can be transmitted that is not requested in the request, even on the basis of a broad interpretation in line with practice, or that concerns a matter that is not covered by the request, but which, from the point of view of the Swiss authorities, is likely to advance the proceedings in the requesting state. In this sense, the existence of a request for mutual assistance does not ipso facto preclude recourse to Art. 67a IMAC. This supplement to pending requests for mutual assistance addressed to Switzerland by means of unsolicited submissions in the form of a “complementary request” relativizes, as does the broad interpretation of the request, the fundamental limitation of a requested mutual assistance to the requests made in the request (prohibition of excess). In the scenario of the coexistence of ordinary mutual assistance proceedings in response to a request and unsolicited transmission by means of the “forme complémentaire”, it is necessary to determine in each case the basis on which a particular assistance has been provided, since legal protection has been specifically defined in connection with Art. 67a IMAC. However, it is correctly pointed out that, due to the broad interpretation of requests for mutual assistance addressed to Switzerland, the “forme complémentaire” pursuant to Art. 67a IMAC is of only marginal importance.
2. Authorities involved
23 The authorities entitled to make unsolicited transmissions based on Art. 67a IMAC are primarily public prosecutors or the Office of the Attorney General. In the literature and the Federal Council Dispatch, reference is also made to Swiss criminal justice authorities, with (criminal) courts also mentioned. However, the police or administrative authorities are not permitted to proceed in accordance with Art. 67a IMAC. Assistance under Art. 67a IMAC must be provided to the authority to which the Swiss authority would turn if it had been contacted in the matter in question by means of a request for mutual assistance, in accordance with the legal basis applicable in the respective individual case in relation to the assisted state.
3. General section: Definitions
a. Information and evidence
24 In addition to Art. 10 of the GWÜ, Art. 67a IMAC includes not only information as the subject of a possible unsolicited transmission, but also evidence; this is a Swiss specificity.
25 Even though practice seems to be focused on the unsolicited transmission of information concerning the secret area, the distinction between the term “information” and the term “evidence” proves to be central to the handling of Art. 67a IMAC, since the ability to transmit de lege lata has been subject to different regulations (exclusion for evidence for affected secret areas, but not for information, Art. 67a para. 4, 5 IMAC). A Swiss authority that transmits unsolicited information must therefore determine whether the subject of the transmission is actually information. In this regard, there is a certain uncertainty in practice with regard to the substantive specification of the two terms. According to established case law, the determining factor is not the type of procurement in Switzerland, but the possible use in the state receiving the unsolicited transmission. The Federal Supreme Court considers the establishment of general definitions to be “délicat” in this regard, since the contours of the terms could overlap and the difference is more of a matter of degree than of principle. Whether the matter at hand is information or evidence must therefore be decided on a case-by-case basis. According to case law, evidence is characterized by the fact that it can be assumed that the foreign state could use it directly for evidential purposes – due to its nature, a high degree of detail or its official character – or base a prosecution on it.
26 In the case law of the Federal Criminal Court, there is also an approach that draws on systematic considerations, according to which – in order to substantiate the concept of evidence – one should, as a fallback, be guided by the rules of procedure: In Switzerland, this includes examination records, video and telephone conference recordings (Art. 144 of the Swiss Criminal Procedure Code), written reports in accordance with Art. 145 of the Swiss Criminal Procedure Code (instead of examinations), expert opinions (Art. 185 CrimPC) and records of inspections (Art. 193 para. 3 CrimPC), objects of evidence in accordance with Art. 192 CrimPC, reports and information in accordance with Art. 195 CrimPC, as well as files consulted on the basis of Art. 194 CrimPC. By contrast, information (“simple information”) is – in negative terms – defined as all data available to the prosecuting authority that cannot be equated with evidence or cannot be used as such; this is also referred to as pre-evidence.
27 A glance at the concept of evidence in Swiss criminal procedural law in particular harbours a certain potential for misunderstanding: the question arising in connection with Art. 67a of the IMAC is whether an object of transmission in proceedings in a foreign country can be evidence. However, the Swiss authorities do not, as a matter of principle, examine the relevant code of criminal procedure of the state receiving the unsolicited transmission. Instead, the criteria presented – which are always based on an understanding of Swiss law, not only when the terms of the CrimPC are explicitly included – are used as a point of reference to distinguish between evidence and information.
28 Examples of explicit qualifications by case law:
“Documentation bancaire” under the protection of Art. 47 BankG (in particular bank statements and bank correspondence): (Evidence concerning the secret area)
Indication of the existence of a bank account, stating in particular the ownership and the beneficial ownership: (Information concerning the secret area)
Indication of the existence of an account, including those of their family members, at Swiss banks named by name, in connection with an alleged criminal conduct: (Information concerning the secret area)
Table (“summary table” with the names of the persons accused in Swiss criminal proceedings, the case numbers, as well as information on date of birth, professional activities, marital status and ID card number, bank account number, any authorized persons, the amounts in the accounts and any comments on the freezing of the assets: (information concerning the secret section)
Summary of the results of a Swiss criminal investigation, including information about a person who holds the beneficial ownership of companies and whose accounts were frozen as a result of the investigation, as well as the location of the accounts without exact details: (information concerning the secret area)
MROS report mentioning a banking relationship: information
Information about the opening of criminal proceedings in Switzerland: information
Photographs of archaeological objects found in Switzerland: (Presumed) information
Hearing transcripts: Evidence
29 The conventional distinction made in practice between evidence and information on the basis of the “nature of the elements to be transmitted” with a view to the foreign proceedings, but with recourse to Swiss concepts, has in the new literature rightly been criticized.
b. Secret area
30 The concept of the secret area is referenced in Art. 67a IMAC in paras. 4 and 5 and thus defines the subject matter of admissible unsolicited transmissions in more detail: evidence relating to the secret area may – in contrast to information (para. 5) – not be transmitted unsolicited (para. 4).
31 The law does not specify what is meant by the secret area in the context of Art. 67a IMAC. Only Art. 9 IMAC makes a general statement about the “protection of the secret area”: this is based on the (criminal procedural, cf. Art. 12 para. 1 sentence 2 IMAC) right to refuse to give evidence, whereby Art. 246 - 248 CrimPC apply mutatis mutandis to the search of records and the sealing of evidence. The literature, with reference to the materials, predominantly assumes that the scope of the secret area within the meaning of Art. 67a IMAC is to be defined more broadly than that according to Art. 9 IMAC and includes all legally protected secrets. This corresponds to the opinion of the rapporteur in the parliamentary deliberations, according to which the secret area in this context is protected by constitutional, civil and criminal law provisions, so that in addition to the protection of secrets under criminal procedural law, in particular manufacturing, business and banking secrecy are covered.
32 This view has also been established in case law, with banking secrecy being at the forefront.
4. Art. 67a IMAC as an optional provision
33 The unsolicited transmission is not an automatism, but is at the (discretionary) discretion of the Swiss authorities (“can” provision). In accordance with the general principles, this discretion must be exercised in accordance with the duty of office. In connection with the exercise of discretion specifically in connection with Art. 67a IMAC, case law and legal literature emphasize, with reference to the Federal Council Dispatch, the fundamentally required restraint in the application of the provision, in order not to encourage circumvention of the rules of mutual assistance, in particular denunciations or an uncontrolled flow of information to other states. In addition, the decision on whether to make unsolicited submissions is also determined by Art. 67a para. 2 IMAC, according to which priority is generally given to the Swiss (criminal) proceedings in the context of which the potentially transferable items are collected.
B. The general conditions and limits of mutual assistance also apply to unsolicited submissions
34 Although it is a special case, unsolicited transmission involves 'minor' criminal law assistance provided by Switzerland to other countries. It follows that the generally applicable conditions and restrictions for this must also be taken into account with regard to the application of Art. 67a IMAC, insofar as the provision does not deviate from it as a lex specialis. This is particularly necessary with regard to Art. 67a para. 5 IMAC, since the unsolicited transmission of information concerning the secret area aims to enable a request for mutual assistance from the other state: however, if this is prevented from the outset by foreseeable obstacles, it is not permitted to transmit the information unsolicitedly, as there would be no point in doing so.
35 The international treaties that may be applicable for the general conditions and limits of mutual assistance as well as the rules of the IMAC are relevant. For the latter to be invoked, criminal proceedings must be supported abroad (see Art. 1 para. 3 IMAC) and there must be no grounds for exclusion within the meaning of Art. 2 IMAC (flawed proceedings in the other state, especially with regard to the human rights situation) and Art. 3 IMAC (para. 1: political and military offense, para. 3: fiscal offense). Moreover, unsolicited transmission is not permitted if the right to prosecute has expired, whereby either Swiss or foreign law is relevant (Art. 5 IMAC). In connection with Art. 67a IMAC, questions of reciprocity also arise (Art. 8 IMAC).
36 The specific exceptions to the general principles that apply to Art. 67a IMAC are, on the one hand, the waiver of a request for mutual assistance addressed to Switzerland, which is typical for unsolicited transfers, and, on the other hand, the requirement of dual criminality according to case law. The IMAC presupposes this for “small-scale” mutual assistance under Art. 64 para. 1 IMAC, provided that mutual assistance measures are requested that require the imposition of procedural compulsion in Switzerland: In this case, it is required that the act being prosecuted abroad (hypothetically considered) exhibits the objective characteristics of an offence punishable under Swiss law. The Federal Supreme Court's reasoning for the dispensability of dual criminality in connection with unsolicited transmission is that the subject matter of the transmission has already been “collected for their own criminal investigation” (Art. 67a para. 1 IMAC) by the Swiss authorities, so that there is no coercion that requires special legitimation under Art. 64 IMAC.
37 Overall, the lack of a request in the case of unsolicited transmissions may in fact make it more difficult to verify the general conditions and limits of mutual assistance, since the Swiss authorities, which are responsible for this, have fewer clues, particularly regarding the criminal proceedings to be supported in the state receiving the support. However, this does not change the generally applicable principle of investigation for (passive) Swiss mutual assistance proceedings, which must be complied with. The Swiss authorities transmitting information without being requested to do so under Art. 67a IMAC are obliged to pay particular attention with regard to the assessment of admissibility.
C. The two types of transmission under Art. 67a IMAC
38 Art. 67a IMAC contains two fundamental types of unsolicited transmission, depending on whether the secret area is affected or not:
Non-affected secret area: sedes materiae is formed by para. 1 and para. 4, supplemented by para. 2, para. 3 and para. 6. The subject matter of the transmission may be, on the one hand, evidence, in accordance with the wording of Art. 67a para. 1 IMAC, or, on the other hand, information by analogy.
Classified area concerned: The starting point is para. 5 and para. 4, supplemented by para. 1 concerning the provenance of the object of transmission and para. 2 and para. 6. A priori, only information, but not evidence, can be transmitted.
1. Unsolicited transmission of evidence (and information) not relating to classified information
a. Subject of the transmission: evidence (and information) gathered for a criminal investigation that is not secret (para. 1)
39 If the secret area is not affected, both evidence and – praeter verba legis – information may be transmitted without being requested.
40 Art. 67a para. 1 IMAC imposes a restriction with regard to the legal provenance of the subject matter of the transmission. In the absence of a mutual assistance request, which is a necessary condition, it cannot have been provided in Switzerland on the basis of mutual assistance law. Therefore, the law requires that the evidence be linked to Swiss criminal investigations: the Swiss authorities can, in principle, transmit the evidence gathered in this context to foreign authorities without being asked to do so, based on Art. 67a of the IMAC.
41 With regard to the requirements for this procedure in Switzerland, from which the objects to be transmitted under Art. 67a IMAC arise, no opening of investigation proceedings within the meaning of Art. 309 of the Swiss Code of Criminal Procedure (CrimPC) is no longer required as an indispensable prerequisite since a change in practice in 2014: Rather, the Federal Supreme Court has that a Swiss public prosecutor was lawfully seized on the basis of a report from the Money Laundering Reporting Office Switzerland (MROS) in accordance with Art. 23 para. 4 let. b AMLA and that there was sufficient suspicion to assume that the content of this report could be forwarded, even if it did not subsequently lead to an order to open proceedings under the CrimPC. The reason given for the dispensability of opening an investigation in Switzerland – despite the wording “for their own criminal investigation”, which actually suggested it, of Art. 67a para. 1 IMAC – was in particular that the Swiss interest in prosecution is not the main focus in the context of Art. 67a IMAC. Rather, the main purpose is to promote the initiation or progress of foreign criminal proceedings.
42 Even if an order to open proceedings is technically unnecessary, the Federal Office of Justice maintains that Switzerland may only transmit unsolicitedly if at least in principle Swiss criminal jurisdiction exists, understood as the territorial application of Swiss criminal law. It also goes without saying that the criminal proceedings undertaken in Switzerland, regardless of the stage reached in the preliminary proceedings, must not constitute a mere pretext for unsolicited transmission (“réelle et sérieuse”).
43 The Federal Supreme Court does not want to stand in the way of an unsolicited transmission if the collection of the subject matter of the transmission in Switzerland is unlawful, and thus not in accordance with its own requirements: As far as the unlawfulness of evidence collected in Switzerland is concerned – and, consequently, its possible invalidity – this must be raised in the foreign proceedings, to which Switzerland contributes by means of the unsolicited transmission. In the view represented here, this shift to the proceedings supported by Switzerland can sometimes prove problematic for those affected by the international division of labor in criminal prosecution. This is particularly the case if there is no possibility in the state conducting the initial criminal proceedings to object to deficiencies in the Swiss collection of the subject matter of the unsolicited transmission.
b. Purpose of transmission: Assumed suitability with regard to future criminal proceedings or a pending criminal investigation abroad
44 The unsolicited transmission of circumstances not relating to the secret area may take place in accordance with Art. 67a para. 1 IMAC if, from the point of view of the Swiss authority becoming active, it is suitable for either initiating criminal proceedings (lit. a) or facilitating a criminal investigation pending abroad (lit. b) in the state receiving legal assistance.
45 Whether an unsolicited transmission is subsumed under a) or b) of Art. 67a para. 1 IMAC with regard to the purpose is irrelevant, since the law does not differentiate between the two variants. The conceptual distinction between 'criminal proceedings' (lit. a) and 'criminal investigation' (lit. b) is equally inconsequential; the only thing that matters is that the supported (pending or pending) foreign proceedings are criminal proceedings in accordance with Art. 1 para. 3 IMAC.
46 The initiation of criminal proceedings abroad that is to be targeted also means the substantive extension of proceedings that have already been conducted. As far as facilitating criminal prosecution in terms of Art. 67a para. 1 let. b IMAC is concerned, this may consist of the foreign state being put in a position to address a request for mutual assistance to Switzerland, as Art. 67a para. 5 IMAC stipulates as the (sole) purpose of transmission with regard to secret information.
47 The subject of an unsolicited transmission may also include exculpatory circumstances. These may also facilitate a criminal investigation abroad in accordance with Art. 67a para. 1 let. b IMAC.
48 As with every mutual assistance measure, unsolicited transfers must always prove to be overall proportionate with regard to the legally prescribed purpose of the transfer of initiating proceedings or facilitating investigations abroad, although Art. 67a para. 1 IMAC only explicitly mentions the suitability criterion as the first part of the principle of proportionality. Even the fact that unsolicited transmission, by definition, lacks a request as a starting point for proportionality considerations (prohibition of excess) does not legitimize an overall disproportionate handling of Art. 67a IMAC. In this sense, an application of Art. 67a IMAC without any connection between the documents to be sent and the offense being or having been prosecuted would prove to be inadmissible under the principle of proportionality. Moreover, mutual assistance must be designed in such a way as to protect the individual right as much as possible (necessity) and, on the basis of a comprehensive weighing of interests, be reasonable for all parties involved. In the literature, a restriction of Art. 67a IMAC to serious crimes, however these may be defined, is sometimes also derived from the principle of proportionality – corresponding to the failed efforts in this regard in the course of legislative work and on the part of case law, which has not yet been adopted as far as can be seen. Regardless of whether it is at all feasible de lege lata to define an exhaustive list of foreign offences in this sense, in respect of which unsolicited transmissions are considered permissible, it seems indispensable that the severity of the allegations at issue, which Switzerland wishes to help address by transmitting incriminating and exculpatory circumstances under Art. 67a IMAC, forms part of the general proportionality assessment.
c. Negative requirement: no effect on Swiss criminal proceedings (para. 2)
49 Art. 67a IMAC provides guidance on the relationship between an unsolicited transmission and the Swiss (criminal) proceedings in the context of which the subject matter of the transmission was collected, by stating that the former has no influence on the latter. The main message of this not easily comprehensible formulation is that mutual assistance (or mutual assistance proceedings) and any Swiss criminal proceedings based on the same facts “are in principle independent of each other”. This means two things:
On the one hand, it is stated that an unsolicited transmission to a foreign country does not eo ipso result in consequences for local criminal proceedings – such as, in particular, a suspension, a waiver of one's own right to prosecute or a change of judge.
On the other hand, the literature derives from Art. 67a para. 2 a requirement for the handling of the resolution discretion inherent in Art. 67a IMAC (“may [...] transmit”) as to whether or not an unsolicited transmission to a foreign country is to be made: It should not be made if it would endanger the success of the investigation in Switzerland. This particularly refers to the situation where secret surveillance measures (Art. 269 et seq. CrimPC) are still ongoing in Switzerland. The fact that Swiss criminal authorities do not counteract their own proceedings by providing voluntary legal assistance is basically obvious in terms of criminal procedure, since the choice of the factually appropriate conduct of the investigation is at the dutiful discretion of the public prosecutor (Art. 16 para. 2 in conjunction with Art. 6 para. 1 CrimPC). Art. 67a para. 2 IMAC also establishes this priority of separate (criminal) proceedings for the law of mutual assistance. For the individual concerned, however, an understanding of Art. 67a IMAC in these terms, as a provision relating to Swiss (criminal) proceedings, is disadvantageous in that it carries the risk that unsolicited transfers of exonerating circumstances to foreign countries may, at least for a certain period of time, fail due to the Swiss right to prosecute. In order to avoid one-sided results, an open consideration of the interests is required here, taking into account the significance of the Swiss proceedings.
50 However, Art. 67a para. 2 does not preclude Switzerland from deciding at a later date, on the basis of the foreign proceedings supported by an unsolicited transmission, to ask the other state to prosecute on its behalf and to dispense with its own domestic proceedings.
d. Basis: international treaty or consent of the Federal Office of Justice
51 The dispatch of the Federal Council describes this as a restriction: the transmission of evidence in accordance with Art. 67a IMAC to a state with which there is no international treaty providing for unsolicited transmission requires the (prior) consent of the Federal Office of Justice.
2. Unsolicited transmission of information concerning classified material
a. Subject of transmission: information concerning the secret area
52 Art. 67a para. 5 IMAC governs unsolicited transmission within the secret area. This is only permitted for information: Art. 67a para. 4 IMAC merely excludes evidence concerning the secret area from unsolicited transmission in accordance with paras. 1 and 2 of Art. 67a IMAC, but since Art. 67a para. 5 IMAC also does not mention such evidence, there is a contrario no legal basis for its unsolicited transmission. They can therefore only be transmitted to a foreign country as part of ordinary legal assistance proceedings initiated in response to a corresponding request. Art. 67a para. 5 IMAC is to be regarded as a consequence of Art. 67a paras. 1 and 4 IMAC.
53 In connection with the unsolicited transmission of information concerning secret areas in accordance with Art. 67a para. 5 IMAC, practice also addresses para. 1 of Art. 67a IMAC in so far as the provenance of the transmitted object is concerned: correctly, it must also have been collected by Switzerland 'for its own criminal investigation'.
b. Purpose of the transmission: assumed suitability for filing a request for mutual assistance to Switzerland
54 Unlike evidence (and information) that is not secret according to Art. 67a IMAC, the sole purpose of the benefit associated with the unsolicited transmission of information within the secret area for the foreign criminal proceedings must be to enable the competent foreign state to approach Switzerland with a request for mutual assistance. In this respect, an unsolicited transmission by Switzerland is, precisely with a view to the envisaged ordinary mutual assistance proceedings, an invitatio ad offerendum or a preliminary stage. Under Art. 67a para. 5 IMAC, the foreign criminal proceedings are not supported directly, but rather through future Swiss mutual assistance proceedings. At least a fundamentally positive prognosis regarding the usefulness of the unsolicited information is required. According to the view presented here, this must not only refer to the possibility of a request for mutual legal assistance addressed to Switzerland, as expressly mentioned in Art. 67a para. 5 IMAC, but also – as far as possible and without prejudice to any subsequent passive legal assistance proceedings, also on the benefit, at least in principle, of Switzerland's possible subsequent (ordinary) legal assistance for the receiving state.
55 The fact that the state receiving the unsolicited transmission bases a subsequent request for mutual assistance addressed to Switzerland on the circumstances that were previously communicated to it by the Swiss authorities without a request corresponds to the objective of unsolicited transmissions from the point of view of the Federal Criminal Court and does not constitute a defect.
56 The transmission of information in accordance with Art. 67a para. 5 IMAC mainly occurs in connection with bank accounts located in Switzerland: Since this concerns evidence relating to the secret area, the unsolicited transmission of “documentation bancaire” is ruled out; however, the foreign authority may – with a view to a future request for mutual assistance – be made aware, for example, of the existence of a bank account and information such as ownership or beneficial ownership.
57 Art. 67a para. 5 IMAC requires only suitability with respect to the unsolicited transmission of secret information, to enable the submission of a request for mutual assistance, so that it does not constitute a violation of the provision if the other state does not use unsolicited information that is suitable for this purpose to obtain information from Switzerland by means of a request.
58 It goes without saying that the underlying purpose of Art. 67a para. 5 IMAC with regard to the unsolicited transmission (purely to enable a request for mutual assistance) vis-à-vis the state to which the information is transmitted must be adequately safeguarded by means of a speciality clause.
59 Incidentally, the fundamental applicability of the general requirements for international mutual assistance in criminal matters to be provided by Switzerland also follows from the purpose of the transfer assumed in Art. 67a para. 5 IMAC, namely to enable a request for mutual assistance: The transfer of secret information for the purpose of formulating a request that it is already foreseeable that Switzerland will not be able to fulfill one day would not stand up to the principle of proportionality.
c. Further requirements
60 As far as the remaining paragraphs of Art. 67a IMAC are concerned, there is no apparent reason why Art. 67a para. 2 IMAC should not also be observed for the unsolicited transmission of information concerning the secret area. The relationship to possible Swiss criminal proceedings cannot be any different here than if transmission is carried out in accordance with Art. 67a para. 1 IMAC.
61 However, the Federal Supreme Court expressly does not extend the scope of Art. 67a para. 3 IMAC to the unsolicited transmission of secret information, which is relevant in practice. Such transmissions under Art. 67a para. 5 IMAC should therefore not be subject by analogy to the alternative conditions of either a state treaty or the consent of the Federal Office of Justice.
3. Procedure for unsolicited transmission
a. In general
62 Art. 67a IMAC does not address the form to be used by the Swiss authorities for the actual execution, understood as the forwarding to a foreign country, of an unsolicited transmission. According to practice, this can be done between authorities informally (in particular “communications [...] téléphoniques ou verbales”), but it must always be accompanied by a written communication to the other state (“note remise”): “[L]a transmission spontanée d'informations doit dans tous les cas faire l'objet d'une communication écrite aux autorités de l'Etat destinataire.” The Federal Supreme Court justifies this requirement with the need to ensure the best possible protection of the rights of the parties in foreign criminal proceedings. It must be possible to determine the origin and content of the unsolicited information by consulting the files, which means that the person concerned can, if necessary, defend themselves against its use in proceedings, in accordance with the requirements of foreign law. However, care must always be taken to ensure that the “note remise” (e.g. by affixing official seals) does not constitute separate evidence that should not or must not be transmitted.
63 The Federal Court precludes the filing of an appeal in Switzerland against the transmission document, so that – as not necessary with regard to their protection – the Swiss authorities' obligation to serve the persons concerned with a copy of the written material addressed to foreign countries is also denied without their having to request it. In contrast, the Federal Office of Justice, in its capacity as a supervisory authority (Art. 3 IMAC), must be provided with a copy of the transmission communication and the protocol in accordance with Art. 67a para. 6 IMAC, irrespective of Art. 67a para. 3 IMAC.
b. Observance of the specialty principle in particular
64 Even if they forward information unsolicited, Swiss authorities must in principle ensure that the subject matter of the transmission is not used abroad contrary to the intention for which they provided the mutual assistance. This is ensured by the principle of speciality, which is a restriction on mutual assistance. The Federal Supreme Court has ruled that the principle of speciality applies in an adapted form (“dans une forme adaptée”) to the unsolicited transmission of information concerning the secret area, which is relevant in practice, in accordance with Art. 67a para. 5 IMAC:
Firstly, it must be ensured that the information is not transmitted with a view to a criminal charge that a priori would not be subject to mutual assistance (see Art. 3 IMAC) if the state receiving the unsolicited assistance subsequently approaches Switzerland with an (ordinary) request.
Secondly, in the absence of an international treaty that regulates the scope of unsolicited transmission, which consists of enabling Switzerland to submit a request for mutual assistance, the foreign authority must be expressly reminded of this purpose. This must be done (in writing) at the latest when the information is transmitted, whereby the principle of good faith between states applies.
65 The use by the foreign state concerned of Swiss assistance obtained under “minor” mutual assistance in violation of the principle of speciality constitutes “entraide sauvage”.
c. Recording requirement under Art. 67a para. 6 IMAC
66 According to Art. 67a para. 6 IMAC, each unsolicited transmission shall be recorded in a protocol. It follows from the wording that the duty to keep a record of the proceedings applies comprehensively, i.e. both in connection with the unsolicited transmission of evidence and information not relating to the secret area and with secret information. The placement of para. 6 as the last paragraph of Art. 67a of the IMAC confirms this from a systematic point of view.
67 During the parliamentary debates, Art. 67a para. 6 IMAC was described as indispensable: in the context of unsolicited transfers, a (file-related) trace must remain in order to be able to prevent the arbitrary and abusive use of Art. 67a IMAC. In this context, case law also cites the same party-related motivation as in the case of the 'note remise'. Together with the protocol, the protocol must be sent to the Federal Office of Justice so that it can exercise its supervisory function. The Federal Criminal Court has denied the data subject's right to be served directly with a copy of the protocol. As for the content of the protocol, it should include the date and form of the unsolicited transmission, as well as the terms of any supervision by the Federal Office of Justice.
68 Complaints brought before the courts in connection with the protocol pursuant to Art. 67a para. 6 IMAC have so far been unsuccessful as far as can be seen: the Federal Criminal Court has in principle ruled that the absence of a protocol may constitute a violation of Art. 67a IMAC, with the consequence that the Swiss authority may have to decide on surrender or non-use with regard to the foreign country. However, the case law avoids this by accepting that it is sufficient that at least the letter to the foreign authority (“note remise”) was placed on the files of the Swiss criminal proceedings. The Federal Supreme Court views the failure to notify the Federal Office of Justice as an “omission regrettable”, which, however, remains without consequence as a “défaut mineur”.
d. Right to be heard?
69 The existence of a prior right to be heard on the intended unsolicited transfers is overwhelmingly denied in the literature, with reference to BGE 125 II 238.
70 With regard to the right of access to records, the legal assistance standards are relevant if an unsolicited transfer has provoked a request for legal assistance addressed to Switzerland and the documents are added to the records of the (passive) Swiss legal assistance proceedings in connection with Art. 67a IMAC: Art. 80b IMAC applies – whereby the restriction to the necessity for safeguarding interests (para. 1) and the legally prescribed grounds for restriction (para. 2) are relevant – as well as, in addition, Art. 26 f. APA in conjunction with Art. 12 para. 1 sentence 1 IMAC. The Federal Criminal Court has assumed a violation of the right to be heard in the following situation: the documents relating to an unsolicited transfer from Switzerland were not part of the mutual assistance files regarding the request that the Ukrainian authorities had subsequently submitted to Switzerland, even though they were referenced in the final ruling.
D. Legal protection in connection with unsolicited transfers under Art. 67a IMAC
1. (Limited) legal protection in Switzerland
71 It has been established practice immediately after the creation of Art. 67a IMAC that an unsolicited transfer under this provision constitutes an “acte d'entraide matériel spécifique” and not a final decree within the meaning of Art. 80d IMAC. This means that there is no object for appeal under Art. 80e IMAC, which in turn makes it impossible to defend oneself before Swiss courts of appeal prior to the transmission. Specifically, there is no preventive legal protection, which is otherwise a fundamental principle of Swiss law on international mutual assistance in criminal matters: “Spontaneous transmission under Art. 67a EIMP ne peut pas directement faire l'objet d'un recours.» From a formal point of view, this seems obvious in that the form of action under the law of mutual assistance that opens the appeal route, the final decree, requires a request (Art. 80d IMAC: “If the executing authority considers the request to be settled in whole or in part”), which, in the context of Art. 67a IMAC, is by definition lacking. Accordingly, the protocol in accordance with Art. 67a para. 6 IMAC and the 'note remise' are also denied contestability.
72 Meanwhile, it has been recognized by case law from the outset that violations of Art. 67a IMAC can in principle be asserted if the unsolicited transmission results in the state that received the assistance approaching Switzerland with a request for mutual assistance or supplementing an existing one. If an appeal is made to the Federal Criminal Court (Art. 25 para. 1 IMAC, Art. 80e para. 1 IMAC) against a final ruling in this regard, deficiencies with regard to the unsolicited transmission that took place beforehand can be objected to in this context. If this reveals a violation of Art. 67a IMAC – for example, the lack of consent from the Federal Office of Justice (para. 3) or the protocol (para. 6), or the transmission of evidence relating to the secret area (para. 4) – this is a form of “entra , whereby the legal consequence used in the case law is that the Swiss authority can be invited (“pourrait être invité”) to ensure the return of the transmitted item by the other state or at least to request that it not be used in its criminal proceedings. In this context, the case law denies a fundamental duty of the foreign state to cooperate on the grounds that it is not responsible for the Swiss authorities' erroneous actions. In any case, as the case law also states in a formulaic manner, intervention vis-à-vis the state that has received the unauthorized unsolicited transmission should be superfluous if it turns out in retrospect that the substantive requirements for (ordinary) mutual assistance (upon request) would have been met or a positive decision on the granting of ordinary mutual assistance can be expected in the near future. In this case, a kind of healing is assumed.
73 If, following the unsolicited transmission, there is no request for mutual assistance addressed to Switzerland from the previously supported state in accordance with Art. 67a IMAC, then, according to the established modus operandi of case law, there is no interest worthy of protection within the meaning of Art. 80h let. b IMAC that would justify intervention by the Swiss judiciary.
74 The Federal Supreme Court has explicitly ruled that these procedural safeguards, which have become established practice in connection with Art. 67a IMAC (no “possibility of direct judicial review of the spontaneous transmission of information”), are ECHR-compliant, particularly with regard to Art. 13 ECHR.
2. Other legal consequences of unlawful unsolicited transfers
75 In addition, or, especially if no request for mutual assistance is addressed to Switzerland and it therefore does not issue a final decree, the only measure that can be considered is proceeding against the use of the subject matter of the transfer in the state (and according to its procedural rules) which has been supported by Switzerland on the basis of Art. 67a IMAC. The prospects of success will depend primarily on the nature of the foreign legal system.
76 Other possible (legal) reactions to unlawful unsolicited transfers include the assertion of state liability claims, criminal proceedings, in particular for breach of official secrecy, and supervisory measures.
We would like to express our sincere thanks to Mr. BLaw Eric Chevrolet for his active support in completing the commentary.
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Materials
Botschaft betreffend die Änderung des Rechtshilfegesetzes und des Bundesgesetzes zum Staatsvertrag mit den USA über gegenseitige Rechtshilfe in Strafsachen sowie den Bundesbeschluss über einen Vorbehalt zum Europäischen Übereinkommen über die Rechtshilfe in Strafsachen vom 29.3.1995, BBl 1995 III 1–66, abrufbar unter https://www.fedlex.admin.ch/eli/fga/1995/3_1_1_1/de (zit. Botschaft IRSG 1995).
Die internationale Rechtshilfe in Strafsachen, Wegleitung, Bundesamt für Justiz, 9. Aufl. 2009, abrufbar unter https://www.rhf.admin.ch/rhf/de/home/strafrecht/wegleitungen.html (zit. Wegleitung Bundesamt für Justiz).
Internationale Rechtshilfe – Statistik 2023 (erstellt am 26.2.2024), Bundesamt für Justiz, abrufbar unter https://www.bj.admin.ch/bj/de/home/sicherheit/rechtshilfe/strafsachen.html (zit. IRH-Statistik 2023).
Rundschreiben Nr. 4 vom 20.3.2015: Weiterleitung von Anzeigen zum Zwecke der Strafverfolgung an das Ausland bei fehlender schweizerischer Strafhoheit, Bundesamt für Justiz, Direktionsbereich Internationale Rechtshilfe, abrufbar unter https://www.rhf.admin.ch/rhf/de/home/strafrecht/wegleitungen.html (zit. Rundschreiben Bundesamt für Justiz 2015).
Wortprotokoll der Sitzung des Nationalrats vom 20.12.1995, AB 1995 V.
Wortprotokoll der Sitzung des Ständerats vom 21.3.1996, AB 1996 I.