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- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
- Art. 42 FC
- 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
- Art. 146 CO
- 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
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- 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 the standard
- II. Content: general points
- III. Examination paragraph by paragraph
- Bibliography
I. Genesis of the standard
1 Art. 74 IMAC, whose marginal note initially referred to the "surrender of objects" abroad, came into force with the Mutual Legal Assistance Act on December 31, 1982.
2 The adoption of this standard represented a significant change in Swiss law, since unlike extradition, for which a law had been in existence since the end of the 19th century, there was at the time no domestic legal provision in Switzerland for the surrender to a foreign state of objects seized in Switzerland outside extradition proceedings. Prior to the adoption of the IMAC, such surrender was reserved for states with which Switzerland was bound by an international agreement providing for probationary surrender. The content of these agreements was often succinct on the conditions surrounding surrender. The European Convention on Mutual Assistance in Criminal Matters of April 20, 1959, which entered into force in Switzerland on March 20, 1967, represented a first step towards codifying, to a certain extent, the rules enshrined in international practice in this field.
3 Initially, art. 74 IMAC applied to the handing over to a foreign state of any "object" "relevant to the decision to be taken in a criminal case". Paragraph 2 of this regulation also expressly referred to the return of "other" objects or valuables to "rightful claimants". Although the legal text was not clear on this point, the Federal Court held that this norm allowed not only for the surrender of evidence (probatory surrender) but, in certain circumstances, also for the surrender of the proceeds of the offence to the foreign state with a view to their confiscation or restitution (confiscatory surrender).
4 Art. 74 IMAC was amended as part of the reform of the IMAC of October 4, 1996, which came into force on February 1, 1997.
5 In the context of this revision, the legislator made a clear distinction between probatory and confiscatory remissions. The purpose of the current art. 74 IMAC has thus been restricted to the delivery of "means of proof", and its content clarified. At the same time, the content of art. 34a IMAC, relating to the surrender of objects or valuables in the context of extradition, has been transferred to art. 59 IMAC after a number of modifications. Finally, a new article 74a IMAC has been adopted, specifically governing confiscatory surrender.
II. Content: general points
6 Art. 74 IMAC now governs only the surrender of evidence seized in Switzerland to a foreign state, and should be read in conjunction with :
art. 59 IMAC, which deals specifically with the surrender of objects or valuables found in the possession of the person to be extradited (whether evidence or the proceeds of the offence),
article 74a IMAC, which deals with the surrender of objects or valuables with a view to their confiscation or restitution.
art. 90 IMAC, which provides for the handover of "exhibits" at the same time as the file of criminal proceedings, in the event that criminal proceedings are delegated abroad.
As things stand, the seizure or surrender of assets as a compensatory claim is only possible under the restrictive conditions set out in art. 94 et seq. of the IMAC (exequatur of a final and enforceable decision of a foreign state).
7 Probationary surrender is also provided for in several international instruments, such as article 6 CEEJ (RS 0.351.12), article 35 TEJUS (RS 0.351.933.6), article 10 TEJArgentina (RS 0.351.915.4) and article 9 al. 1 TEJMexico (RS 0.351.956.3). The scope of these provisions, reserved by art. 1 para. 1 IMAC, does not go beyond that of art. 74 IMAC.
8 The notion of "means of proof" referred to in art. 74 IMAC remains broad. According to the text of the law itself, it can refer to any object, in particular any document or value "seized as evidence". This may include securities, bank documents, works of art and so on. They may also include media containing audio or video recordings, or computer data. Depending on their nature and content, the delivery of objects abroad may therefore constitute not only an infringement of the right of ownership (at least in the temporary form of an infringement of possession), but also an infringement of privacy or business secrecy (delivery of computer data, audio and video recordings or secret documents). Art. 74 IMAC also covers any file or decision of a Swiss administration or court. However, this does not apply to the handing over of judicial decisions rendered in the course of the mutual assistance procedure itself, or to any documents produced by the parties in this context.
9 The objects, assets or documents to be handed over must be related to the acts being prosecuted in the criminal proceedings underway in the requesting state. According to the case law of the Federal Supreme Court, however, there is no need to lay down strict requirements as to the suitability of the object in question as evidence, as the final assessment rests with the foreign trial judge. In particular, the requirements for evidentiary surrender are less stringent than in the case of surrender of objects or valuables for confiscation or restitution under art. 74a IMAC. It is therefore sufficient that, prima facie, the object in question appears suitable for use as evidence. Any connection between the acts prosecuted abroad and the object in question is sufficient.
10 The principle of proportionality, which derives from art. 5 para. 2 of the Swiss Constitution and art. 63 para. 1 of the IMAC, nevertheless applies. Depending on the needs of the foreign criminal proceedings, a simple copy of the documents or media seized may be handed over to the requesting state. Surrender is unnecessary if the fact to be proven is well known or already supported by sufficient evidence. However, the executing authority limits its examination to the "potential usefulness" of the documents handed over. According to jurisprudence, the requested state must not substitute its own assessment for that of the foreign magistrate, since it generally does not have the information that would enable it to decide on the appropriateness of administering the evidence in question.
11 Prior to handover, a seizure order must be issued - or even an urgent provisional seizure order within the meaning of art. 18 IMAC - allowing the seizure of objects considered useful for establishing the truth. In the case of mutual assistance, a request for surrender implicitly includes a request for prior seizure. On the other hand, the reverse is not true: a request for seizure is not equivalent to a request for surrender, and a new request for mutual assistance may be necessary if the first request was only for precautionary measures. The principles applicable to the search and possible sealing of documents or objects whose contents are covered by secrecy are those of the Swiss Criminal Procedure Code.
12 In practice, the Federal Office of Justice has found that probationary surrender poses few problems as long as the quantity or value of the transferred goods remains low. Art. 33 OEIMP provides for special arrangements for high-value items, in particular the adoption of specific protective measures and the obligation to insure them against damage or loss during transport.
III. Examination paragraph by paragraph
A. Paragraph 1 - Retention of evidence until the end of the proceedings
13 Art. 74 para. 1 IMAC provides for the surrender of evidence "at the request of the competent foreign authority" only "at the end of the mutual assistance procedure". The handover of evidence takes the form of a closing decision within the meaning of art. 80d IMAC, to which art. 74 para. 1 IMAC expressly refers. As long as the closing decision is not final and enforceable, the secret documents, objects and valuables are retained in Switzerland. Unlike in the case of international administrative assistance, this provision enshrines the principle of "retention" of evidence in Switzerland until the closure decision has come into force. This ensures that the rightful claimants have been informed in advance of the planned seizure and handover, and, where applicable, have been able to assert their right to be heard before the competent courts prior to its execution. This principle is considered fundamental in international mutual assistance in criminal matters.
14 However, the principle of withholding evidence is not inviolable under the IMAC. In recent years, the legislator has already created two exceptions to this principle, in articles 18b and 80dbis IMAC. These provisions allow, under certain restrictive conditions, the "anticipated" and sometimes even "spontaneous" transmission of certain means of evidence abroad, before the person concerned has been able to assert his or her right to be heard. The law sets out safeguards for these exceptions, in particular a temporary prohibition (pending a ruling on the closing decision) on the requesting state using the elements thus obtained as "evidence". Only use for "investigative purposes" is therefore possible in the meantime, until such time as a ruling is handed down in Switzerland on the closure decision.
15 For its part, art. 67a para. 5 IMAC allows the spontaneous transmission to a foreign state, not of evidence stricto sensu, but of "information" falling within the sphere of secrecy, with the aim of enabling a foreign state to send Switzerland a request for mutual assistance. According to case law, the distinction between "information" and "means of proof" is assessed on a case-by-case basis; in particular, the Swiss authority wishing to communicate "mere information" must endeavor not to transmit "data or official documents which, by their nature, very detailed information content or official character, could directly serve as evidence in foreign proceedings".
16 Other procedural acts may also lead to the premature transmission of information to the requesting state, such as the authorization given to foreign investigators to attend the execution of the request (art. 65a IMAC), hearings by videoconference or telephone conference, means of investigation involving the participation in Switzerland of foreign investigators (cross-border observation, controlled delivery, discreet investigation and joint investigation teams) or access to the file granted to a party. These various acts are permitted under Swiss law, subject to special precautions developed by case law.
17 Finally, case law does not penalize non-compliance with the principle of retention in an absolute manner, noting in particular that a prohibited transmission of information or evidence prior to the entry into force of the closing decision can be "repaired" if it appears, after the interested parties have had an opportunity to put forward their objections, that the conditions for mutual assistance had been met and that the disputed documents should in any case have ended up in the hands of the foreign authority. On the other hand, if the competent courts ultimately refuse mutual assistance, the foreign authority must be asked by the Swiss authorities to immediately remove from its file and destroy the documentation which is the subject of the Swiss transmission.
B. Paragraph 2 - Rights of third parties
18 Paragraph 2 of art. 74 IMAC deals with the rights of third parties to objects, i.e. the bona fide purchaser, an authority or the injured party who has his habitual residence in Switzerland, codifying the case law developed under the former version of art. 74 IMAC. Neither the person against whom the foreign proceedings are directed, nor the persons who have acquired rights to the objects with knowledge of the facts under investigation abroad, are therefore protected by this norm, failing to meet the requirement of good faith. As far as the bona fide acquirer is concerned, art. 74 al. 2 IMAC does not require, unlike art. 74a al. 4 let. c IMAC, that his rights have been acquired in Switzerland or that he resides in Switzerland. According to some authors, this is an unintended loophole that should be filled, by requiring a relationship between the third party and Switzerland similar to that provided for in art. 74a para. 4 let. c IMAC. This question has not been settled in case law.
19 The requesting state's right to probationary surrender in principle takes precedence over the rights of third parties to the objects. Indeed, the legislator has taken the view that, in principle, their right of ownership is not really threatened, since the evidence is simply made available to foreign proceedings and must then be returned at the end of the foreign proceedings. It is therefore only a question of a temporary loss of possession. The question of confiscatory surrender at the end of the proceedings is reserved, if the requesting state submits a request to this effect. In this case, the conditions of art. 74a IMAC will have to be examined by the Swiss enforcement authority, which provides further safeguards to guarantee the rights of third parties. This also applies in the event that the evidence constitutes objects endangering security, morality or public order within the meaning of art. 69 para. 1 in fine of the Swiss Criminal Code, in which case it should be possible to waive the return of objects handed over for evidentiary purposes, notwithstanding the claims of third parties, since such objects would in any case be liable to confiscation.
20 As far as the requesting State is concerned, the aforementioned restitution obligation derives either from a general agreement binding it to the requested State (an obligation which the requested State may waive in a specific case), or from a specific reservation given in connection with the surrender of the disputed object. In the absence of a legal basis providing for restitution under an international agreement between the requested and requesting states, and in the absence of a reservation to this effect made at the time of surrender, the requesting state remains free to dispose of the objects in accordance with its own legislation.
21 In order to guarantee the return of objects by the requesting state, and hence respect for the rights of third parties, art. 74 para. 2 IMAC provides for the possibility of requiring the requesting state to give a guarantee that it will return the objects handed over free of charge at the end of its procedure. This is a condition subject to acceptance within the meaning of art. 80p IMAC. In order to fulfil its purpose, obtaining the required guarantee must precede the probationary handover. According to case law, these principles also apply by analogy to the delegation of criminal prosecution. If the requesting state fails to comply with the guarantee it has given, it incurs international liability. Nevertheless, the State's undertaking to return the property at the end of its proceedings does not always provide sufficient protection for the rights of third parties, particularly in the case of cultural property for which the requesting State may benefit from immunities. In principle, the requested State must presume that the requesting State will act in accordance with its commitments and the principle of good faith, within certain limits. In a case concerning the probationary handover of three archaeological objects to Libya, the TPF considered that, in view of the serious deterioration in the political situation in that country, it was not possible to obtain sufficient guarantees regarding the return of the objects. The TPF nevertheless authorized the handover of the documentation relating to the disputed items, while proposing that an expert appraisal of the objects be carried out by Libyan experts on Swiss soil, and reserving any confiscatory handover, within the meaning of art. 74a IMAC, for a later stage in the proceedings.
22 It should be noted that possible infringements of other third-party interests (such as privacy or business secrecy) arising from knowledge of the content of documents or content carriers are not protected by the IMAC, particularly since the deletion of art. 10 aIMAC when the IMAC was revised and came into force on January 1, 1997. In any case, the practical scope of this standard prior to its abolition was very limited.
C. Paragraph 3 - Requirements for criminal proceedings pending in Switzerland
23 According to para. 3 of art. 74 IMAC, the evidentiary surrender abroad of objects seized in Switzerland may be postponed if the objects, documents or assets are required for criminal proceedings pending in Switzerland. This may be the case, for example, if the Swiss criminal proceedings are already well advanced, or if the main part of the offence took place in Switzerland. In this context, the judge must take into account the respective needs of his investigation and that conducted abroad, as well as the nature of the disputed objects, by weighing up the interests involved. For example, in a case involving quantitatively and culturally significant archaeological artefacts, the Federal Court noted that, in view of the risks involved in transporting the artefacts, it could be justified not to hand over the artefacts, but rather to authorize the foreign investigators to travel to Geneva to examine them. However, this is not always possible, particularly when there is a large number of items to be examined, as it is too costly for the foreign state.
24 When the links between the disputed facts and Switzerland are tenuous, when the alleged offenders do not reside in Switzerland and are not likely to be extradited there, and when Switzerland is involved solely because the disputed objects are located on its territory, it may be appropriate for the Swiss authority to facilitate the progress of the foreign investigation by granting the surrender of the seized objects, or even to delegate criminal prosecution abroad within the meaning of art. 88 et seq. of the IMAC. If the proceedings are delegated abroad, art. 90 IMAC provides for the handover of the exhibits together with the criminal case file. This is the logical consequence of the transfer of jurisdiction: The requesting State must hand over to the requested State everything that may be useful for the prosecution of the delegated offences, in order to enable it to carry out its mission... The notion of "evidence" within the meaning of art. 90 IMAC corresponds to that of "means of proof" within the meaning of arts. 74 and 59 IMAC. The Swiss authority may not delegate proceedings in order to allow the transmission of objects which the conditions of art. 74 and 74a IMAC would not allow. Finally, the rules necessary to protect the rights of third parties (cf. para. 2 above) are applicable by analogy in the case of surrender of objects within the meaning of art. 90 IMAC.
D. Paragraph 4 - Rights of lien in favor of the tax authorities
25 Paragraph 4 of Art. 74 IMAC refers to Art. 60 IMAC, which governs the right of lien in favor of the tax authorities in extradition cases. According to this provision, if the objects or valuables are handed over without reservation of restitution, the customs lien or any other real guarantee instituted by Swiss customs or tax law cannot be invoked, unless the owner who has suffered damage as a result of the offence is himself liable to pay. Waiver of this right of lien may be subject to reciprocity. In this context, it is also necessary to take into account art. 23 OEIMP, which specifies the circumstances in which rights of lien in favor of the tax authorities may be invoked, while at the same time designating (para. 2) the Directorate General of Customs as the authority competent to waive rights of lien within the meaning of art. 60 IMAC.
26 The FOJ points out that this issue is of little practical importance.
Bibliography
Aepli Michael, Kommentierung zu Art. 74 IRSG, in: Niggli Marcel Alexander/Heimgartner Stefan (Hrsg.), Basler Kommentar, Internationales Strafrecht, IRSG, GwÜ, Basel 2015.
Boilat Marie, 2012, La coopération judiciaire internationale en matière pénale / Chapitre IV : Les moyens de coopération judiciaire internationale en matière pénale prévus par l’EIMP, in Trafic illicite de biens culturels et coopération judiciaire internationale en matière pénale, 2012 EDA - Etudes en droit de l'art, pp. 189 et ss.
Bomio Giorgio, L'entraide judiciaire internationale dans le domaine des biens culturels, EDA 2011, pp. 23 et ss.
Donatsch Andreas/Heimgartner Stefan/Meyer Frank/Simonek Madeleine, Internationale Rechtshilfe, unter Einbezug der Amtshilfe im Steuerrecht, 2. Aufl., Zürich 2015.
Gless Sabine, Internationales Strafrecht, Grundriss für Studium und Praxis, 3. Aufl., Basel 2021.
Harari Maurice, Remise internationale d’objets et valeurs : réflexions à l’occasion de la modification de l’EIMP, Etudes en l’honneur de Dominique Poncet, Georg, Genève 1997, pp. 167 et ss.
Harari Maurice, Corminboeuf Harari, Entraide internationale en matière pénale et transmission anticipée à l’Etat requérant, in : Mélanges en l’honneur de Claude Rouiller, Helbing Lichtenhahn, Bâle 2016, pp. 77 et ss.
Lubishtani Kastriot, Monod Hadrien, Gauderon Ryan, De l’exception à la règle avec l’art. 80dbis EIMP, in Revue de l’avocat 2021, p. 27 et ss.
Lugentz Frédéric, Rayroud Jacques et Turk Michel, L’entraide pénale internationale en Suisse, en Belgique et au Grand-Duché de Luxembourg, Editions Larcier, Bruxelles 2014.
Ludwiczak Glassey Maria, Entraide judiciaire internationale en matière pénale, Précis de droit suisse, Basel 2018.
Moreillon Laurent (Hrsg.), Entraide internationale en matière pénale, EIMP - TEJUS - LTEJUS - TEXUS, Commentaire romand, Basel 2004.
Office fédéral de la Justice, L’entraide judiciaire internationale en matière pénale, Directives, 9ème édition, 2009 (https://www.rhf.admin.ch/rhf/fr/home/strafrecht/wegleitungen.html).
Pavlidis Georgios, L’entraide judiciaire à des fins de confiscation en droit suisse, in Confiscation internationale: instruments internationaux, droit de l'Union européenne, droit suisse, Genève 2012, pp. 262 et ss.
Stelzer-Wieckowska Marta, Die kleine Rechtshilfe in Strafsachen: grundrechtliche Stellung der betroffenen Person, in ZStStr 2022, pp 157 à 184.
Zimmermann Robert, La coopération judiciaire internationale en matière pénale, 5. Aufl., Bern 2019.