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- Art. 3 FC
- 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. 73 PRA
- Art. 73a 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. Background
- II. General information
- III. Delimitations
- IV. Paragraph 1 - Surrender
- V. Para. 2 - Objects and assets
- VI. Para. 3 - Time of surrender
- VII. Para. 4 - Grounds for refusal to surrender
- VIII. Para. 5 - Suspension of surrender
- IX. Paragraph 6 - Tax liens
- X. Para. 7 - Division of confiscated assets
- XI. Legal remedies
- Bibliography
I. Background
1 The IMAC, adopted on March 20 1981, was amended on October 4 1996. The aims of this amendment were, on the one hand, to combat economic crime effectively and, on the other, to remedy the weaknesses of the legal system previously in place by simplifying and accelerating the procedure for executing requests for mutual assistance. The Pemex and Marcos cases highlighted certain weaknesses in the law, such as the length of the execution procedure. This proved to be excessive, both because of the numerous appeals available, and because the procedure varied widely from one canton to another.
2 This revision led in particular to the modification of art. 74 IMAC and the addition of a new art. 74a IMAC, previously combined with art. 74a IMAC. This makes it possible to distinguish between the surrender of evidence to the requesting state, now governed by art. 74 IMAC, on the one hand, and the surrender of objects or valuables for the purpose of their confiscation or restitution to the rightful owner in the requesting state, now governed by art. 74a IMAC , on the other.
3 Art. 74a IMAC also clarifies the procedure to be followed in the event of surrender of objects and assets seized in Switzerland, and replaces a complex body of case law which previously required foreign confiscation or restitution orders to be subject to an exequatur procedure. Under the new provision, all that is required is a summary review of the foreign decision, based on a finding of compliance with fundamental procedural rights.
4 In the parliamentary debate, the National Council adopted the proposed Art. 74a without discussion. The Council of States accepted the proposal to introduce, in para. 3, the words “as a general rule”; however, it declined to amend this provision so as to make the surrender of the proceeds of crime conditional in all cases on the existence of a final and enforceable judgment in the requesting state. The National Council endorsed this solution.
II. General information
A. Procedure
5 The 1996 revision of the IMAC made a distinction between evidentiary seizure, which concerns only means of proof, and precautionary seizure, which concerns objects or assets for the purpose of confiscation. Seizure may only be aimed at the restitution of objects or assets to the rightful owner or injured party (which may be the requesting State), or at their confiscation or destruction. In the case of restitution, the consequence is to re-establish the previous situation of the entitled party. Art. 74a IMAC thus allows, at the request of the requesting state, the surrender of goods seized in Switzerland for confiscation or restitution to the rightful owner in the requesting state.
6 Surrender for the purpose of restitution can now take place in principle at all stages of foreign proceedings, provided that the requesting state issues a final and enforceable decision (art. 74a para. 3 IMAC). The principle of trust between States leads us to accept that, as a general rule, there should be nothing to prevent the surrender of objects or valuables once the requesting State has rendered a decision, and that there is therefore no need to proceed with the exequatur of this decision, within the meaning of art. 94 et seq. of the IMAC.
7 The expression “as a general rule” was used by the legislator in order to allow, on an exceptional basis, a swift and unbureaucratic procedure in cases where restitution is clearly required, for example when there is no doubt as to the illicit origin of the seized assets and the merits of returning them to the rightful owner (cf. paras. 42 and 47 below ).
8 Prior to delivery by way of mutual assistance with a view to confiscation or restitution, the competent authority must be in possession of the objects and assets to be returned. To this end, it may order provisional measures within the meaning of art. 18 IMAC, such as protective sequestration. The objects or valuables may finally be handed over to the requesting state following a final and enforceable decision within the meaning of art. 80d. The surrender of objects and assets within the meaning of art. 74a IMAC - unlike the surrender of evidence - is final, and the foreign state may dispose of the surrendered objects or assets. Once transferred, Switzerland loses all control over them.
9 Art. 74a IMAC is supplemented by art. 33a OEIMP , which governs the duration of seizure.
10 The surrender of objects and assets with a view to their confiscation or restitution constitutes a serious infringement of the fundamental rights of the person concerned. In contrast to art. 74 IMAC, the infringement of fundamental rights is more serious, as the objects and assets are definitively handed over to the person concerned. Among the fundamental rights affected are the guarantee of property (art. 26 Cst.), economic freedom (art. 27 Cst.) and the protection of privacy (art. 13 Cst. and 8 ECHR). A surrender decision based on art. 74a IMAC must therefore comply with the conditions of art. 36 Cst.
B. Discretion of the enforcement authorities
11 This is a potestative provision (Kann-Vorschrift), unlike art. 59 and 74 IMAC. The Swiss enforcement authority must therefore assess all the circumstances of the case in order to determine whether and when a surrender should take place; in doing so, it has broad discretionary powers. If this power does not allow it to question - subject to a violation of public policy - the content of the foreign decision, the executing authority is obliged to examine whether the requested collaboration remains within the framework authorized by art. 74a IMAC. In this way, the requested authority can ensure that the assets for which restitution is requested do indeed correspond to the objects described in art. 74 para. 2 letters a to c IMAC, i.e. that they are indeed the instrument or proceeds of the offence, or even the reward awarded to the perpetrator. The foreign proceedings must also satisfy the general guarantees of the ECHR or the UN Covenant II. The claims of the injured party, an authority or bona fide third-party purchasers, as well as the requirements of criminal proceedings in Switzerland, must also be taken into account under art. 74a para. 4 IMAC.
12 If necessary, the Swiss enforcement authority may ask the requesting state for further information (art. 80o IMAC ). It can also make the granting of mutual assistance subject to conditions when the foreign procedure has certain shortcomings that can be remedied by guarantees from the foreign state (art. 80p IMAC ). These conditions may include an undertaking to comply with procedural rules, in particular those laid down in international instruments, to guarantee the independence and impartiality of the judging authority, or to comply with the principle of speciality. These guarantees can be obtained a posteriori. However, such guarantees should be treated with caution. Even if possible, the application of art. 80p IMAC to the surrender of property to the requesting state is to be relativized, since a surrender based on art. 74aIMAC is in principle only possible on the basis of a final and enforceable decision in the foreign state. Otherwise, mutual assistance should be refused.
13 The TF has repeatedly stressed the need to take account of the rights of persons harmed by the offence in question, and to ensure that surrender to the requesting state under art. 74a IMAC is not to their detriment. This being the case, the TF has so far only restrictively accepted a surrender based on art. 74a IMAC with specific conditions. The case concerned the early surrender to the Philippines, prior to the pronouncement of a confiscation judgment, of assets belonging to the former Philippine head of state Ferdinand Marcos and his family. At the time, the TF left open the possibility for victims of human rights violations committed by Ferdinand Marcos and his regime to claim compensation from the funds to be handed over to the Philippine state. He also stressed the need to interpret art. 74a IMAC in the light of (i) the principles underlying the IMAC, including the respect for human rights enshrined in art. 2 IMAC, and (ii) Switzerland's international obligations, including in particular the guarantee of rights under the UN Covenant II and the UN Convention against Torture, including the right to a fair trial and the right to compensation. Insofar as the requesting state is unable to implement these rights, Switzerland should take them into account, notably by making mutual assistance conditional on specific undertakings by the requesting state, as permitted by art. 80p IMAC . However, the Federal Court emphasized that, even if the Philippine State was bound by its international obligations to make reparation to the victims, the mutual assistance requested should enable it to decide on the fate of the assets in question, thus recalling the sovereignty of the requesting State over the assets to be handed over.
C. Interaction with international agreements
14 Under art. 1 para. 1 IMAC, international laws or agreements take precedence over the IMAC. Treaty provisions take precedence over the domestic law governing the matter, i.e. the IMAC and the OEIMP, which are applicable in the case of questions not explicitly or implicitly regulated by treaty law and when domestic law is more favorable to mutual assistance. Indeed, according to the principle of favoritism, the law most favorable to mutual assistance must apply. The existence of a treaty thus does not deprive Switzerland of the option of granting mutual assistance under any broader rules of its domestic law, since mutual assistance treaties are intended to foster international cooperation; they do not therefore preclude a broader grant of such assistance under Swiss law. Among the international treaties relevant to art. 74a IMAC are the following:
The European Convention on Extradition of December 13, 1957, which entered into force in Switzerland on March 20, 1967, allows the surrender of objects liable to seizure or confiscation, but only on condition of restitution (art. 20 al. 3 CEExtr) and subject to the rights of the requested State or third parties over these objects (art. 20 al. 4 CEExtr).
The European Convention on Mutual Assistance in Criminal Matters of April 20, 1959, which entered into force in Switzerland on March 20, 1967, does not deal directly with the surrender of objects and valuables. It is, however, provided for in art. 122e p.a. CEEJ.
The Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime of November 8, 1990, which entered into force in Switzerland on September1, 1993. This is a special convention supplementing the European Convention on Mutual Assistance in Criminal Matters of April 20, 1959, in accordance with art. 26 para. 2 and para. 3 of the ECCJ.
The CBI is an important instrument of international cooperation for regulating the investigation and confiscation of the instruments and proceeds of a criminal offence (art. 7 CBI). It lays down a minimum standard of measures to be taken at national level (chap. II) and establishes the principle of the widest possible cooperation at all stages of criminal proceedings (chap. III). These various measures are ordered in accordance with domestic law, the latter also being applicable where it lays down more favourable conditions for mutual assistance. Article 13 imposes an obligation on the requested State to confiscate the proceeds of crime, either in execution of a foreign confiscation order, or by instituting domestic proceedings. Swiss law, through art. 74a para. 2 IMAC and 94 ff IMAC concerning respectively the surrender of instruments and proceeds of crime and the enforcement of foreign decisions, thus complies with the requirements of the present Convention. The TF emphasized that the IWC does not permit the establishment of modes of cooperation not provided for under national law.
Different arrangements between States parties to the Convention remain reserved, for example by providing for the sharing of confiscated proceeds between cooperating States.
The United Nations Convention against Corruption of October 31, 2003, which entered into force in Switzerland on October 24, 2009, is a global instrument in the fight against corruption. It devotes an important chapter to the recovery of assets of illicit origin (chap. V). It is the first international instrument to establish, at multilateral level, the principle of the restitution, under certain conditions, of illicitly acquired assets (art. 57). At the time of its adoption, the Federal Council considered that the UNCAC did not entail any changes to domestic law, since Switzerland had already transposed the principles set out in the UNCAC into its legislation, particularly with regard to the confiscation of assets already governed by art. 70 ff of the Swiss Penal Code and art. 74a of the IMAC . In the case of embezzlement of public property, art. 57 par. 3 let. a UNCAC provides for an obligation to hand over confiscated property to the requesting state when confiscation has been executed in accordance with art. 55 UNCAC and on the basis of a final judgment rendered in the requesting state, a requirement which the requested state may waive. In other cases, notably those covered by art. 57 par. 3 let. b and c UNCAC, there is no automatic right in favor of the requesting state. In cases where the requesting State cannot assert overriding rights over confiscated assets, other solutions will have to be found, notably in favor of the victims of corruption.
Unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of November 14, 1970, which entered into force in Switzerland on January 3, 2004. Its aim is to improve the protection of cultural property in States Parties, and to safeguard the cultural heritage of mankind through international cooperation. It lays down the minimum legal and administrative standards that States Parties must apply to curb the illicit trade in cultural property. Its main thrusts are the fight against theft, clandestine excavations and the illegal import and export of cultural property. The Convention also calls for the restitution of stolen cultural property and the return of illegally exported goods. The 1970 Unesco Convention is not directly applicable, however, and requires States Parties to legislate for its implementation. This is what Switzerland has done with the LTBC, which came into force on June1, 2005. Art. 7 of the Unesco Convention stipulates that States Parties shall take appropriate measures to seize and return stolen property at the request of the country of origin, “provided that the requesting State pays fair compensation to the person who is the bona fide purchaser”. Art. 13 of the Unesco Convention completes this provision, requiring states parties to admit actions for the return of lost or stolen cultural property.
The 1970 Unesco Convention makes no provision for the restitution or return of stolen or illegally exported cultural property, while respecting the rights of the bona fide purchaser. This is why, in 1984, the International Institute for the Unification of Private Law (UNIDROIT) was asked by Unesco to draw up a convention to regulate these matters, resulting in the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of June 24, 1995. Switzerland signed the Convention on June 26, 1996, but has not yet ratified it. Under the UNIDROIT Convention, stolen cultural property (or that which has been illegally excavated) is subject to a right of restitution for 50 years (75 years in exceptional cases) (art. 3); similarly, illegally exported cultural property, the export of which harms important cultural or scientific interests, is subject to a right of return for 50 years (art. 5). If the cultural property has been acquired in good faith, the purchaser is entitled to fair compensation (art. 4 and 6).
III. Delimitations
A. Delimitation with art. 59 IMAC
15 Art. 74a IMAC is the counterpart to art. 59 IMAC, which applies to extradition. Art. 59 IMAC does not create a separate surrender procedure from that provided for in art. 74 and 74a IMAC . It does, however, allow objects or valuables in the possession of the person to be extradited to be handed over to the requesting authority at the time of extradition.
B. Delimitation with art. 70 ff of the Swiss Penal Code
16 While art. 70 et seq. of the Swiss Criminal Code sets out the conditions for the confiscation of assets in Swiss criminal proceedings, art. 74a IMAC lists the cases in which Switzerland, as the requested State, may withhold the objects or assets in question or suspend their delivery to the requesting State, in particular if the objects or assets are required for criminal proceedings pending in Switzerland or are liable to confiscation in Switzerland (art. 74a para. 4 let. d IMAC).
C. Delimitation with art. 94 ff IMAC
17 Art. 74a IMAC and art. 94 ff IMAC are two separate procedures for the enforcement of foreign confiscation orders. In Bottinelli's terms, art. 74a, which allows assets to be handed over to the foreign authority “with a view to confiscation or restitution to the rightful owner”, constitutes an extradition procedure: the assets are delivered to the foreign state so that it can enforce its domestic confiscation order against them; conversely, the exequatur provided for under art. 94 ff IMAC amounts to transforming the foreign confiscation order into a Swiss confiscation order. These procedures therefore have a different center of gravity: in the case of art. 74a IMAC , the center of gravity will be in the requesting state, which will operate according to its domestic law, whereas in the second case, the center of gravity will be in Switzerland, where the foreign decision will have to be implemented.
D. Delimitation with the Privacy Act
18 The Privacy Act is an innovative law that governs the freezing, confiscation and restitution of assets of politically exposed persons abroad or their close relatives, where there is reason to assume that these assets have been acquired through acts of corruption or disloyal management, or through other crimes. It follows on from the Federal Council's practice of freezing potentate assets, which was previously based on art. 184 para. 3 of the Swiss Constitution and then codified in the Federal Act on the Restitution of Assets of Illicit Origin of Politically Exposed Persons of October1, 2010 (Restitution of Illicit Assets Act, aLRAI), which the Privacy Act replaces and supplements. The LVP provides for a dual mechanism for freezing assets: preventive freezing with a view to mutual legal assistance (art. 3 LVP) and freezing with a view to confiscation if mutual legal assistance fails (art. 4 LVP). Preventive freezing aims to support criminal investigations and international legal assistance by freezing assets so as not to make their future restitution to the state of origin impossible. Confiscatory freezing only comes into play at a later stage in the proceedings, when restitution through international legal assistance has proved impossible. The LVP is therefore a subsidiary system to the international mutual assistance provided for under the IMAC, which can only be activated in specific and limited cases.
19 The confiscatory freeze LVP is in principle followed by a confiscation procedure (art. 14-16 LVP), or a restitution procedure (art. 17-19 LVP). Art. 14 para. 4 PVG expressly provides for the subsidiary nature of a confiscation based on the PVG in relation to the remission and confiscation mechanisms provided for under the IMAC.
IV. Paragraph 1 - Surrender
20 According to art. 74a para. 1 IMAC, at the request of the competent foreign authority, objects or assets seized for safekeeping may, at the end of the mutual assistance procedure (art. 80d IMAC), be handed over for confiscation or restitution to the rightful owner. Generally speaking, seizure is intended to ensure the execution of the requested acts of assistance and necessarily entails a subsequent decision. Para. 1 reiterates that the ultimate purpose of seizing objects or assets in the context of mutual assistance proceedings is to hand them over to the requesting state, which then orders the confiscation or restitution of the property seized in domestic proceedings.
21 In principle, the requesting state will ask for the seizure to be carried out before or with its request for surrender. However, if the requesting state does not expressly make such a request, it is accepted that the request for surrender from the requesting state also includes a request for precautionary measures, i.e. an implicit request for seizure. Case law even goes so far as to authorize Switzerland to freeze potentially embezzled funds if the requesting state is likely to ask for them to be handed over in accordance with art. 74a IMAC. The executing authority may thus proceed with the protective sequestration in the absence of an express request, especially if there is a risk of collapse (art. 18 al. 2 IMAC). In this case, it must ask the requesting authority to clarify this point.
22 Conversely, an express request for restitution from the requesting state is required for Switzerland to surrender the goods and assets, as a request for seizure is not in itself equivalent to a request for surrender. Surrender to the requesting state is normally effected on the basis of a final and enforceable judgement which rules on confiscation or surrender to the rightful owner (cf. paras. 42 and 47 below ).
23 Art. 33a OEIMP specifies that objects and valuables remain seized until receipt of a final and enforceable decision from the requesting State, or until the requesting State makes it known that such a decision is no longer possible under its own law, notably due to prescription. In particular, the Federal Court ruled that sequestration must be maintained even if the mutual assistance procedure is suspended. Switzerland will return the objects and valuables notwithstanding the occurrence of the statute of limitations under Swiss law, provided that the statute of limitations had not expired at the time of the seizure.
24 The duration of a sequestration must, however, respect the principle of proportionality and cannot be maintained indefinitely. In the case of administrative proceedings initiated at the request of a foreign state, practice is generally more tolerant of sequestration periods than in criminal proceedings. However, case law has repeatedly recognized that this system can lead to unacceptable situations. As a result, after a certain period of time, the Swiss authorities may be obliged to lift the sequestration or refuse to grant mutual assistance. The private interest of the owners of sequestered assets must be weighed against the public interest of the requesting state and the private interest of the victims in obtaining the handover of assets for confiscation or restitution, as well as against Switzerland's duty to fulfil its international obligations and not to serve as a safe haven for funds of criminal origin.
25 The proportionality of the measure is assessed in particular according to the conduct and progress of the proceedings in the requesting state. Depending on the circumstances, the executing authority may need to keep abreast of developments in the foreign proceedings. The analysis of the proportionality of contested seizures must also be based on the degree of complexity of the case. When neither the requesting state nor the executing authority can be blamed for any particular delay, the duration of the sequestration is not in itself sufficient to justify lifting the measure or refusing legal assistance. Different criteria may also be taken into account in the analysis of proportionality, depending on the specificities of the case, such as the adoption of a new confiscation law which would require the reintroduction of a request in the requesting state on the basis of these new provisions, the fact that the accused is on the run, making it difficult to carry out an investigation abroad, or the need of the person concerned by the mutual assistance measure to have access to the blocked funds.
26 On the basis of these criteria, the Federal Court ruled in the Marcos case involving mutual assistance with the Philippines that the principle of proportionality had not been violated, even though fifteen years had elapsed since the sequestration, with a final deadline of five years for the requesting authorities to issue a first-instance decision confiscating assets that had been seized for more than twenty years. Conversely, in the Duvalier case, it rejected a Haitian request for mutual assistance thirteen years after a sequestration order had been issued, as the requesting State had failed to respond to requests for information demonstrating that it still had an interest in executing the request.
27 Proceedings based on art. 74a IMAC inevitably lead to several years elapsing between the seizure and the handover of assets, not least because of the procedural requirements of the requesting state. What's more, certain offences or confiscation measures are subject to very long statutes of limitation in some countries, or are even imprescriptible. Maintaining the sequestration of objects and valuables during this period thus creates the risk of a disproportionate restriction of the fundamental rights of the persons concerned, in particular the guarantee of ownership provided for in art. 26 para. 1 of the Swiss Constitution, or the obligation to act promptly enshrined in art. 29 para. 1 of the Swiss Constitution. For these reasons, some legal scholars consider that art. 33a OEIMP (cf. supra para. 23) does not constitute a sufficient legal basis to justify the serious infringement resulting from a sequestration with a view to surrender under art. 74a IMAC . On the contrary, this serious restriction of fundamental rights requires a formal legal basis.
28 The freezing or surrender of objects and valuables must also comply with the principles laid down in art. 2 let. a IMAC, which provides that a request for mutual assistance must be refused if the proceedings abroad do not respect certain fundamental procedural guarantees. Art. 2 let. a IMAC applies first and foremost to extradition and to cases where the accused is on the territory of the requesting state and can assert a concrete risk of violation of his procedural rights. In the TF's view, the surrender of objects and valuables must be equated with extradition insofar as it confers on the requesting state control over the accused, or his property, which justifies the application of art. 2 let. a IMAC in such cases.
29 Measures of constraint imposed in mutual assistance proceedings must still respect the principle of double criminality. The Swiss authorities may therefore only hand over objects or assets to the requesting authority with a view to confiscation or restitution to the rightful owner, provided that confiscation or restitution to the rightful owner complies with art. 70, respectively art. 73 of the Swiss Criminal Code.
30 Lastly, surrender to the requesting state cannot take place before the entry into force of a decision to close the Swiss mutual assistance procedure (art. 80d IMAC), which will take place at the end of an ordinary or simplified procedure (art. 80cIMAC ) if the person concerned consents.
V. Para. 2 - Objects and assets
31 Art. 74a para. 2 IMAC sets out the nature of the objects and assets to be handed over. The list in art. 74a para. 2 IMAC is identical to that in art. 59 para. 3 IMAC, and reflects the definitions in art. 70 ff. of the Criminal Code. The list in art. 74a IMAC should be considered exhaustive.
32 In the first instance, they include the instruments used to commit the offence (instrumenta sceleris, let. a). These are objects that compromise personal safety, morality or public order, such as weapons, machines used to mint counterfeit money or forged cheques.
33 They then include the proceeds of the offence (producta sceleris, let. b ab initio) and the results of the offence (quaesita sceleris or fructa sceleris, let. b ab initio). The former refers to the objects and values obtained through the commission of the offence, such as the stolen painting or the sum of money involved in the swindle, while the latter refers to objects and values that have been produced as a result of the offence, such as the forged painting, counterfeit money or bribes. The funds removed from an enforcement measure also constitute the result of the offence.
34 The same applies to unlawful advantage (let. b in fine), which includes any increase in the perpetrator's assets as a result of his unlawful conduct. This advantage need not be pecuniary or at the expense of others. Typical examples are interest earned on stolen money deposited in a bank. Profits from transactions carried out using funds of criminal origin are assimilated to illicit advantages.
35 These may also include gifts and other benefits which were used or intended to be used to decide or reward the offender (praetium sceleris, let. c).
36 Finally, if the illicit proceeds, results or advantages obtained as a result of the offence (let. b) or the gifts and other advantages that served or were intended to serve to decide or reward the offender (let. c) are no longer available, the remission may relate to the replacement values (let. b and c in fine) acquired in exchange for them. These assets remain confiscable as long as their movement can be reconstructed in such a way as to establish their link with the offence.
37 These objects and assets must necessarily be connected with the offence. This relationship is given when there is a causal link between the offence and the obtaining of the objects and assets, such that the latter appears to be the direct and immediate consequence of the former. In other words, the offence must be the essential and adequate cause for obtaining the assets to be confiscated. This is the case when the original product of the offence can be identified with certainty and documented, i.e. as long as its “paper trail” can be reconstructed in such a way as to establish a link with the offence. This rule is also based on the principle of speciality. Assets whose acquisition was only facilitated by an offence, without any connection with it, are therefore not subject to confiscation.
38 The question of the admissibility of seizure to satisfy a compensatory claim is not expressly addressed in art. 74a para. 2 IMAC. Following the adage that “crime does not pay”, some authors consider that this is a gap that should be filled by case law. In particular, they invoke art. 71 al. 3 CP, which would be applicable through the general reference in art. 12 IMAC. However, another part of the doctrine argues, and in our view rightly so, for qualified silence. It justifies its position by arguing that art. 74a para. 2 IMAC requires a connection between the offence committed on the one hand and the objects or assets seized on the other, which is lacking with the compensatory claim. Moreover, the institution of the compensatory claim was known at the time of the revision of the IMAC, so that the legislator knowingly decided not to include it in the mechanism of art. 74a IMAC . Moreover, there is no other provision in the field of small-scale mutual assistance that would authorize seizures for the payment of a compensatory claim. Moreover, handing over funds to the foreign state for the purposes of a compensatory claim would confer an unjustified preferential right from the point of view of debt collection law, insofar as no such preferential right exists under domestic law (art. 71 para. 3 StGB). Lastly, remission with a view to payment of a compensatory claim would not ensure sufficient protection and equality of creditors, as is the case with the procedure provided for in art. 71 PC. In any case, foreign judgments awarding compensatory claims can be enforced in Switzerland on the basis of art. 94 ff IMAC (enforcement of judgments). The position of the courts has long been confused. The case law of the TPF has fluctuated considerably, sometimes admitting the delivery of securities for the purposes of a compensatory claim, sometimes excluding it from the scope of art. 74a IMAC. After detailed reasoning, the Federal Court definitively followed the latter approach, holding that the omission of the compensatory claim from art. 74a IMAC constituted a qualified silence on the part of the legislator. It follows that any remittance of assets in execution of a foreign decision imposing a penalty corresponding to a compensatory claim in Switzerland can only be considered in application of art. 94 ff IMAC. In this respect, the terminology used by the foreign state is of little importance. What is decisive is whether, in the case in point, the Swiss authorities would have ordered a confiscation or a compensatory claim.
39 These developments are, however, limited by art. 7 ch. 2 let. b CBI, by which Switzerland has undertaken to implement a legal basis allowing the remittance of funds for the payment of a compensatory claim. This provision is not yet directly applicable and has not yet been transposed into Swiss law. De lege ferenda, however, art. 74a para. 2 IMAC should expressly mention the compensatory claim.
40 Where the foreign request concerns the surrender of funds derived from the activities of a criminal organization, the rule set out in art. 72 of the Swiss Criminal Code applies to the surrender within the meaning of art. 74a para. 3 of the IMAC. Art. 72 PC provides for the confiscation of assets over which a criminal organization has power of disposal, combined with a reversal of the burden of proof on the person having participated in or supported such an organization. The Federal Court has used this provision to confiscate assets considered to belong to potentates. In particular, it described the entourage of former Nigerian president Sani Abacha as a criminal organization within the meaning of art. 260ter of the Swiss Criminal Code, and found that the structure set up by Abacha was intended to embezzle funds from the Central Bank of Nigeria for private purposes, as well as to profit from corruption operations. Consequently, funds belonging to a criminal organization are presumed to be of criminal origin, unless the holders can prove otherwise. If they fail to rebut the presumption set out in art. 72 CP, second sentence, surrender is ordered under art. 74a para. 3 IMAC, without further examination of the origin of the funds claimed.
41 Finally, art. 74a para. 2 IMAC refers only to objects and assets that are within the perpetrator's power of disposal. Immediate possession is not required, however, so that it is permissible to seize assets deposited in the hands of third parties, such as bank balances.
VI. Para. 3 - Time of surrender
42 According to Art. 74a para. 3 IMAC, surrender no longer has to wait until the end of foreign criminal proceedings. It can take place at any stage of the foreign criminal proceedings, as a general rule when the requesting state has issued a final and enforceable confiscation or restitution order. It is therefore not necessary for the accused to have already been convicted by a final judgment, and the presumption of innocence is no obstacle to surrender. In practice, confiscation or restitution of seized valuables or objects is often only possible once the foreign criminal and seizure proceedings have been concluded, and in principle only in the presence of an enforceable confiscation order.
43 The foreign order may be issued by a criminal, civil or administrative authority. Art. 74a IMAC requires only that the confiscation (or restitution) relates to objects or assets obtained by criminal means (art. 74a para. 2 IMAC) and that it is ordered by a court. An independent confiscation order already suffices (by analogy with art. 376 of the Swiss Criminal Code).
44 The confiscation or restitution order issued by the requesting state determines the unlawful origin of the objects and assets seized and their rightful owner, and orders their confiscation or restitution to the rightful owner. It clarifies the facts and constitutes a binding decision under the law of the requesting state, on the basis of which the authorities of the requested state can generally order the return of the confiscated objects or assets without further action. At the same time, the requirement of an enforceable decision enables the requested state to check a posteriori that the decision complies with the rule of law.
45 During the consultation procedure, several voices were raised in favor of making the surrender of objects or valuables by Switzerland subject to an exequatur procedure for the foreign decision, to enable the latter's validity to be verified. However, the Federal Council took the view that the principle of trust between States, which is particularly important in the field of mutual assistance, did not authorize Switzerland to review the merits of decisions taken by a sovereign foreign judicial authority, provided that these decisions did not manifestly violate Swiss public policy or the fundamental principles of the ECHR. Moreover, a foreign confiscation or restitution order should not be the subject of an exequatur order within the meaning of Part V of the IMAC, as it is not a sanction within the meaning of art. 11 IMAC.
46 Switzerland is thus not authorized to examine the merits of the decisions of an independent foreign judicial authority, unless these decisions manifestly violate Swiss public policy or elementary principles of the ECHR. It is sufficient for the enforcement authority to examine the foreign decision summarily, after ascertaining that the foreign state is a state governed by the rule of law, and that it respects the general principles mentioned. If necessary, the executing authority may call on the requesting state to obtain further information (art. 80o IMAC), or make the granting of mutual assistance subject to conditions (art. 80p IMAC).
47 By way of exception, the executing authority may also grant a request for surrender before the end of the foreign proceedings, i.e. in the absence of a final and enforceable decision, as indicated by the phrase “as a general rule”. Art. 74a para. 3 does not specify the grounds for deviating from the general rule, and thus confers broad discretionary powers on the enforcement authority. However, this discretion must not have the effect of rendering the requirement for a final and enforceable decision meaningless. In order to proceed with an advance surrender, the situation must be clear, both in terms of the identification of the objects or valuables and their criminal origin. The circumstances must be so obvious that there is absolutely no need to clarify the criminal origin, and that making surrender conditional on obtaining a confiscation order would appear disproportionate. In this respect, the executing authority must take into account all the concrete circumstances of the case and examine the particularities that justify dispensing with a final and enforceable decision. In such cases, the interest of the requested state is limited, according to the TF, to respecting the elementary guarantees of a procedure in line with the requirements of the ECHR or the UN Covenant; account must also be taken of Switzerland's essential interest, within the meaning of art. 1a IMAC, in not providing a safe haven for the considerable sums illegally embezzled by representatives of dictatorial regimes.
48 A typical example is the handing over of a clearly identifiable stolen painting, such as a painting by Piero della Francesca stolen from the Galleria dei Uffizi in Florence. For example, the Federal Court has accepted the surrender of a painting stolen from France in the absence of a final confiscation order, basing its decision on the international public interest in the protection of cultural property. It also allowed the assets of the late Ferdinand Marcos, seized in Switzerland, to be handed over in the absence of an enforceable decision, given Switzerland's interest in the immediate restitution of the assets and their manifestly criminal origin, on condition that the Philippines guarantees a restitution or confiscation procedure in compliance with UN Covenant II. ''
49 The executing authority may also waive the requirement for a final decision in the case of assets held by a criminal organization within the meaning of art. 260 StGB and art. 72 StGB if the holders of the assets are unable to prove their legitimate origin.
VII. Para. 4 - Grounds for refusal to surrender
50 Art. 74a provides for the definitive surrender of objects and assets to the requesting state (cross-reference to para. 1). To mitigate this strict regime, art. 74a para. 4 IMAC introduces safeguards that may prevent such surrender. This paragraph lists the grounds justifying the retention of objects or valuables in Switzerland, despite the request of the requesting state. These include the rights of the injured party (let. a), those of an authority (let. b) and those of third parties (let. c), or the needs of proceedings or confiscation in Switzerland (let. c). Third-party claims entail suspension of the surrender procedure until the law is known (cf. paras. 67 ff. below ).
51 Like para. 1 of this provision, art. 74apara. 4 IMAC is drafted as a potestative norm, unlike its counterpart in domestic law, art. 70 para. 2 PC, which constitutes a peremptory norm. However, the latitude enjoyed by the authority on this basis must be aimed solely at preventing abuses, and must under no circumstances lead to third parties being treated less favourably in the context of a confiscation ordered by a foreign state than in a purely domestic situation. Thus, the claims of a third party or an injured party must in principle, if they appear likely, lead to the suspension of the surrender procedure.
52 The TF has extended the circle of persons entitled to oppose surrender beyond the text of art. 74a para. 4 IMAC. They now also include (i) injured parties who do not reside in Switzerland and who are not compensated by the defendant, the requesting state or a third party; (ii) victims of human rights violations by the government of the requesting state; or (iii) financial intermediaries who are simultaneously obliged by a third state other than the requesting state to retain the assets whose surrender is requested. Any third party that does not meet the criteria of art. 74a para. 4 IMAC will have to take action before the courts of the requesting state to assert its rights to the assets in question.
A. Rights of the injured party (letter a)
53 The injured party's claims for restitution may prevent the surrender of objects and assets abroad, provided that the injured party has his habitual residence in Switzerland. Only restitution is covered by this provision, not general claims for compensation.
B. Rights of an authority (letter b)
54 Switzerland may also waive the surrender of objects or assets to the foreign authority when a Swiss authority asserts rights over them. In our view, by analogy with the rights of bona fide third parties referred to in let. c (cf. para. 55 below ), this covers rights in rem or limited rights in rem belonging to an entity governed by Swiss public law, in particular federal, cantonal or communal authorities, the Confederation, cantons or communes, vested with public power. Rights of lien for the benefit of the tax authorities and the question of objects or assets required for Swiss proceedings are dealt with separately (art. 60 IMAC, respectively art. 74a para. 4 let. d IMAC).
C. Rights of bona fide third parties (letter c)
55 Art. 74a para. 4 IMAC also protects acquisition by “ persons not involved in the offence ” acting in good faith.
56 The law does not refer to a third party, but to a person unrelated to the offence, i.e. distinct from the accused. This concept excludes, in particular, a legal entity that is entirely controlled by the accused, where the latter continues to exercise effective power over the assets resulting from the offence. On the other hand, case law does not preclude any link with the offence, and recognizes that persons who have received assets linked to the offence in good faith may oppose their surrender to the requesting state.
57 The legal text also requires a certain link with Switzerland. In order to benefit from the protection afforded by art. 74apara. 4 IMAC and to prevent surrender, the person concerned must demonstrate that he or she has acquired the rights he or she is claiming in Switzerland or, failing that, that he or she is resident in Switzerland if he or she acquired the rights abroad.
58 The rights claimed in respect of these objects or assets must be real rights or limited real rights, such as a pledge, and not mere personal rights, such as a contract. A right of retention of the goods may thus be the basis for refusal of delivery.
59 In application of the Swiss legal principle that criminal sequestration takes precedence over civil sequestration in the event of conflict, a civil sequestration does not establish any substantive lien. It is merely a provisional measure designed to secure a claim, but does not prevent the return of objects or assets to the foreign authority, as does a transfer order subsequent to the sequestration.
60 It should also be noted that objects or valuables can only be retained in Switzerland on the basis of art. 74a para. 4 IMAC if the claims of the foreigner involved in the offence are not adequately protected in the requesting state, either in the context of the current criminal proceedings or in other civil or criminal proceedings. The protection of these claims is deemed adequate in States bound by art. 6 par. 1 ECHR and subject to the subsidiary control of the Strasbourg bodies. As in the case of extradition, this presumption should in our view be rebutted if there is clear evidence that these rights are not being respected.
61 The notion of good faith under art. 74a para. 4 IMAC is understood in the criminal sense (art. 70 CP) and not in the civil sense (art. 933 ff CC). A third party acquiring assets in ignorance of the facts that would have justified confiscation is therefore considered to be acting in good faith. On the other hand, as soon as the third party is aware or cannot ignore these facts, he or she is no longer protected. This is the case in particular when the third party was aware of the nature of the reward or proceeds of the offence, or should have presumed this in the light of the case in question. All circumstances must be taken into account, such as the third party's ability to obtain information. Knowledge of the de facto and de jure organs of a company is imputed to the latter. In any event, the purchaser must have taken the most elementary precautions and must take all necessary steps in good time to ascertain the origin of the assets or object.
62 The burden of proof lies with the purchaser. The law does not require strict proof in this respect, but rather that the third party make his good faith plausible. The enforcement authority should therefore limit itself to verifying whether the purchaser's allegations are sufficiently precise and substantiated to admit the plausibility of his claims. This should not exempt the third party from proving the circumstances under which he acquired the object or assets, such as the place and date of acquisition and the identity of the seller, and from providing documentary proof of payment or remittance.
D. Need for proceedings or confiscation in Switzerland (let. d)
63 In some cases, objects or assets may be the subject of both mutual assistance and domestic criminal proceedings in Switzerland, for example in the case of money laundering offences. Art. 74a para. 4 let. d IMAC provides that Switzerland may refuse to hand over the goods to a foreign authority if it intends to confiscate them as part of a domestic criminal proceeding.
64 If the goods and assets are to be confiscated in Switzerland, confiscation in Switzerland will generally take precedence over surrender to the foreign state. For the rest, the choice of whether to favour Swiss or foreign criminal proceedings will be governed by mainly pragmatic considerations, such as the chances of success, efficiency, procedural economy, respect for the principles of Swiss law, the possibility of sharing the confiscated assets with the foreign state, or the risk of the assets being re-appropriated illegitimately in the requesting state. In principle, if the requesting authority intends to return the objects or valuables to the injured party, the Swiss authorities will order the return even if these objects or valuables are also the subject of Swiss criminal proceedings. If there is no direct victim of the offence, as in the case of drug trafficking for example, the Swiss procedure should be preferred.
65 In the event of competing foreign requests for surrender, the IMAC does not contain a rule allowing the claims of one state to be preferred to those of another. In principle, the rules set out in the previous paragraph will apply, with Switzerland again enjoying very broad discretionary powers.
66 The interests of the requesting state may be taken into account in the context of a sharing agreement (cf. art. 11 et seq. of the Swiss Civil Code, see para. 73 below ). In this respect, Switzerland has a wide margin of discretion, since apart from the particular configuration provided for in art. 57 par. 3 let. a UNCAC, Switzerland has no international obligation to hand over confiscated assets to the foreign authority. Its only obligation is to confiscate the proceeds of crime (see not. art. 7 para. 2 let. a CBI). The requesting State has no right to require Switzerland to proceed by means of a surrender within the meaning of art. 74a IMAC, rather than by domestic confiscation for the benefit of the Swiss treasury, which would be less favorable to the requesting State. However, this discretion should not be used to circumvent the rules of international law on mutual legal assistance and the resulting obligations of Switzerland. In application of the principle of good faith, the Swiss authorities must refrain from any unfair approach which would unilaterally favour Swiss interests to the detriment of foreign interests.
VIII. Para. 5 - Suspension of surrender
67 Art. 74 para. 5 IMAC states that surrender to the requesting state is suspended in the event of claims by entitled parties on the objects and assets until the law is known. The legal text does not specify the circle of rightful claimants, but in our opinion it concerns the injured party (art. 74a para. 4 let. a), including any heirs, and third parties acting in good faith (art. 74a para. 4 let. b).
68 This provision also lays down the conditions under which the seizure may be lifted and the objects or valuables handed over to these entitled parties, either if the requesting State consents (let. a), in the case of para. 4 let. b if the authority consents (let. b) or if the claim is recognized as well-founded by a Swiss judicial authority (let. c). In our view, these conditions are alternative, in accordance with the wording of the law.
69 In the majority of cases, the rightful claimant who invokes his rights to the objects or assets in question will have to present a judgment from a Swiss court (art. 74a para. 5 let. c), the hypothesis of the consent of the requesting State (art. 74a para. 5 let. a) or of the Swiss authority (art. 74a para. 5 let. b) appearing rare. If he does not already have the benefit of such a judgment, the rightful claimant should therefore in principle bring an action for determination before a Swiss court. In case of doubt, the enforcement authority must set a deadline for the beneficiary to file a civil action. The text of the law is silent on the nature of the judicial decision, and it must therefore be assumed that it includes both a final civil judgment on the merits, delivered at the end of the procedure, and a substitute, such as a judicial settlement. It is only once the Swiss courts have ruled on these rights that it is necessary to determine whether the objects and valuables should be handed over to the requesting state. In our view, a foreign judgment should also be admissible if it meets the conditions for recognition in Switzerland.
70 That said, one author rightly considers that art. 74apara. 5 let. c is formulated too absolutely, and that the competent authority should be able to decide on the release of objects or assets to the rightful claimant when the legal situation is clear, without the need for a civil judgment. This would typically be the case where the right invoked is documented, and can therefore be easily proven and evaluated. In this way, the civil judge would only intervene if there were any doubt as to the rights of the interested party. This solution would save procedural costs and possible interest charges for the various parties involved.
IX. Paragraph 6 - Tax liens
71 Pursuant to art. 60 para. 1 IMAC, applicable by reference to art. 74a para. 6 IMAC, if the objects or assets are handed over without reservation of restitution, the customs lien or any other real security established by Swiss customs or tax law cannot be enforced, unless the owner injured by the offence is himself liable to pay. Waiver of this right of lien may be subject to reciprocity (art. 60 al. 2 IMAC).
72 Art. 23 OEIMP, although relating to extradition, applies by analogy. This provision specifies the situations in which it is appropriate to invoke or waive rights of lien in favor of the tax authorities, i.e. if the objects to be handed over (a) are liable to confiscation in the requesting State or (b) belong to a requesting State which, in the opposite case, does not waive its rights of lien.
X. Para. 7 - Division of confiscated assets
73 Pursuant to art. 11 et seq. of the Swiss Criminal Code, the Confederation may conclude agreements with a foreign state on the sharing of confiscated assets. In principle, such agreements provide for a 50/50 sharing of the assets between the states (art. 12 para. 3 PCSA). Derogations are possible, notably in view of the nature of the offence, the location of the assets, the importance of the foreign state's participation in the investigation, as well as customs between Switzerland and the foreign state, the guarantee of reciprocity, the international context or the importance of damage to the interests of the foreign state (art. 12 al. 3 CPA). It is also possible to deviate from this key if one state has incurred greater costs or suffered greater damage than the other. The amount allocated to Switzerland is then shared between the various authorities in accordance with the procedures laid down by law (art. 3 ff. of the Swiss Civil Liability Act). The sharing of confiscated assets between the Confederation and foreign states is referred to as external sharing. In principle, external sharing presupposes that the foreign state grants reciprocity (art. 11 para. 2 CPA).
74 According to art. 74a para. 7, objects that devolve to Switzerland in execution of a sharing agreement based on the PCVG are not handed over. Thus, if part of the objects or valuables it hands over to the foreign authority could be assigned to Switzerland under a possible subsequent sharing agreement, the executing authority must make appropriate reservations in the operative part of the closing decision. Similarly, the executing authority may postpone the surrender if Switzerland intends to proceed with a division of the seized assets in accordance with the PCSA, provided that the funds for which surrender is requested have not yet been the subject of a final decision in the requesting state.
XI. Legal remedies
75 The decision of the Swiss executing authority on the surrender of the objects or assets to the foreign authority is a final decision which may be appealed to the Complaints Court of the TPF (art. 80e para. 1 IMAC). Anyone who is personally and directly affected by the assistance measure and who has an interest worthy of protection in its annulment or modification is entitled to appeal (art. 80h let. b IMAC). This includes the persons mentioned in para. 4 let. a-d, i.e. third parties who have a claim on the objects and assets to be handed over (cf. supra para. 50). Appeals may be lodged for violation of federal law (which in principle includes international law), including excess or abuse of discretionary powers (art. 80i para. 1 let. a IMAC) or for illegitimate or manifestly incorrect application of foreign law, in cases covered by art. 65 IMAC (art. 80i para. 1 let. b IMAC). The time limit for appeals is 30 days from written notification of the decision, subject to an appeal for denial of justice, which may be lodged at any time. An appeal against the decision to close the procedure has suspensive effect (art. 80l para. 1 IMAC).
76 The IMAC system can sometimes lead to unsatisfactory situations, as it can take several years between the seizure of assets and their handover. In such circumstances, the admissibility of the appeal is exceptionally not conditional on the existence of immediate and irreparable harm, in order to allow, for example, the holder of a bank account to have the legality or proportionality of the coercive measure reviewed by a judicial authority before the decision is taken to release the assets or hand them over to the requesting state. Seizure of objects or valuables without a decision on surrender within a reasonable time also opens the way to an appeal for formal denial of justice.
77 The decision of the TPF can only be appealed to the TF in exceptional cases, i.e. when the conditions of art. 84 FSCA are met. The case must be particularly important (para. 1). This is particularly the case when there is reason to assume that the foreign procedure violates fundamental principles or contains other serious defects (para. 2). Such a case may also be accepted when a legal question of principle arises, when the previous instance has departed from the case law of the Federal Court, or when the case is otherwise of extraordinary importance. In particular, the Federal Supreme Court held that this was the case with regard to the application of Art. 74a to the surrender of assets for the purpose of enforcing a compensatory claim, insofar as it had not yet ruled on the matter. In any case, the requirements for accepting such a case are high. The time limit for lodging an appeal is ten days from notification of the complete copy of the decision (art. 100 al. 2 let. b LTF). In principle, appeals have suspensive effect (art. 103 al. 2 LTF). Violations of fundamental rights under the ECHR may ultimately be brought before the ECtHR, subject to the conditions laid down in the Convention.
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