I. General

1 The principle of reciprocity in international mutual assistance in criminal matters, enshrined in Art. 8 IMAC, is a condition for the granting of mutual assistance. However, it only applies in the absence of an international cooperation agreement or treaty in criminal matters between the states concerned, in which case requests for mutual assistance are governed exclusively by Swiss law and the general principles of public international law.

2 The principle of reciprocity may also apply in exceptional cases where there is a bilateral or multilateral treaty on international mutual assistance in criminal matters, in particular where the offense covered by the request for assistance is not covered by the treaty. Therefore, in order for mutual assistance to be granted beyond the scope of the treaty, the principle of reciprocity must be guaranteed. Consequently, an international agreement on mutual legal assistance does not preclude the obtaining of an assurance for an area not covered by it.

3 The guarantee of the principle of reciprocity must not be considered in a given situation but rather as a practice between States granting mutual assistance in criminal matters. The requested State, granting mutual assistance in accordance with the principle of reciprocity, expects the requesting State to provide the same assistance in a similar situation. The principle of reciprocity may arise from treaty negotiations, previous practice between States, or the granting of an assurance by the requesting State.

II. Historical background

4 The principle of reciprocity is a general rule of international law which allows a State to make the advantage it grants to another State conditional on the absolute assurance that it will obtain the same advantage if necessary. The principle of reciprocity is generally based on customary international law. The condition of reciprocity is an expression of the sovereignty of a State, which considers the granting of mutual assistance to another State to be a political act and not a legal act. With the evolution of the understanding of state sovereignty and criminal policy objectives, the condition of reciprocity is tending to become more flexible, due to a broad interpretation of the grounds for exception, resulting from various factors, such as the evolution of state sovereignty, respect for human rights, the rise of international conventions, and the mutual recognition of judicial decisions of other states. The competent authorities have broad discretion in this area. The principle of reciprocity may be subject to political considerations; the text above should therefore be followed, which means that the promotion of international cooperation must be weighed against the preservation of sovereignty and other interests mentioned above.

5 In accordance with Art. 8 para. 1 IMAC, mutual assistance in criminal matters is subject to the principle of reciprocity, in particular depending on the circumstances, including the seriousness of the offense. However, the law provides for exceptions to reciprocity (Art. 8 para. 2 IMAC): simple notification, the nature of the act committed or the fight against certain forms of crime (letter a), improvement of the situation of the person being prosecuted or their chances of social rehabilitation (letter b) and, finally, the clarification of an act directed against a Swiss citizen (letter c). Only the Federal Council is competent to guarantee reciprocity to other states (Art. 8 para. 3 IMAC).

III. Principle of reciprocity in the IMAC

A. Requirement of reciprocal guarantees (para. 1)

1. General

6 In accordance with Art. 8 para. 1 IMAC, Switzerland shall only grant a request for mutual assistance from a foreign state if that state grants reciprocal guarantees. This is a principle of international law which allows the requested State to make the granting of mutual assistance conditional on the requesting State guaranteeing it, where appropriate, the same advantage, i.e. the same type of judicial assistance for the same purposes (do ut des).

7 Reciprocity is therefore a principle that is “essential to the granting of mutual legal assistance, extradition, delegation of prosecution and the enforcement of decisions.” Consequently, mutual assistance cannot be granted if the requesting State does not grant reciprocity and there are no grounds for exception within the meaning of Art. 8 para. 2 IMAC.

8 The principle of reciprocity plays an essential role, but only when cooperation is based on the Mutual Assistance Act (IMAC): reciprocity plays a very limited role in international mutual assistance agreements, since these are, in accordance with the principle of pacta sunt servanda (Article 26 of the Vienna Convention on the Law of Treaties), binding on the States party to the treaty, subject to a fundamental breach (Article 60 of the Vienna Convention on the Law of Treaties).

9 The requirement of reciprocity as a prerequisite for mutual legal assistance is primarily in the interest of the State and not of the person concerned by the request for assistance. Nevertheless, under Swiss law, the latter may invoke it when it is in their favor. For this reason, the reduction in the importance of reciprocity or the broad interpretation of the exceptions in Art. 8 para. 2 IMAC play de facto to its disadvantage by allowing the scope of mutual assistance to be extended.

10 The provision of Art. 8 IMAC deals with incoming requests, but Switzerland has a symmetrical system for outgoing requests under Art. 30 para. 1 IMAC, which reads as follows:

“The Swiss authorities may not make a request to a foreign State which they would not be able to comply with under this Act.”

2. Guarantee of reciprocity

11 As mentioned above, the principle of reciprocity is based on mutual expectations between States to grant each other the same advantages for the same purposes; these may result from contractual negotiations, previous practice or assurances given to that effect. The OEIMP specifies that the condition of reciprocity is also fulfilled when mutual assistance can be obtained from the foreign State without the involvement of its authorities (Art. 1 OEIMP). Each situation must be analyzed to determine whether or not reciprocity is lacking in the case in question.

12 The granting of reciprocity does not pose any difficulty when the requesting State has already granted Switzerland the same mutual assistance that it is requesting. This can be defined as mutual assistance where the purpose and content of the cooperation are identical, in particular with regard to the offense in question. Thus, reciprocity is presumed with regard to States with which Switzerland cooperates regularly and is based on the principle of trust and international good faith.

13 In cases where the requesting state has never granted similar mutual assistance, it is necessary to analyze the state's behavior, taking into account its national legislation on mutual assistance and, more broadly, its practice in cases with a similar purpose and content with Switzerland but also, where applicable, with other states. It follows that if the requesting State generally grants the mutual assistance it has requested, reciprocity is deemed to exist, whereas if it does not grant mutual assistance in similar situations, mutual assistance should not be refused de facto but should be made subject to a declaration of reciprocity. The Federal Office of Justice (FOJ) of the Federal Department of Justice and Police (FDJP) has the authority to assess whether a declaration of reciprocity should be requested in its capacity as central authority. Thus, in accordance with the wording of Art. 8 para. 1 in fine IMAC, “the FOJ shall request a guarantee of reciprocity if the circumstances so require.” It therefore has broad discretion in this matter. The FOJ is competent to examine the validity of the guarantee of reciprocity provided by the requesting State. It should be noted that this guarantee must be given before Switzerland decides on the granting of mutual assistance, in accordance with the ordinary rules on international guarantees. In accordance with the principle of trust that underpins relations between states, the Swiss authorities are not required to verify that the declaration of reciprocity complies with the formal requirements of foreign law or that the authority issuing the declaration of reciprocity is competent to do so, except in cases of manifest abuse. In cases of manifest abuse, the Swiss authorities may refuse to recognize the declaration of reciprocity made by the requesting State, which constitutes an exception to the principle of trust. Consequently, a case of manifest abuse suspends the presumption of validity attached to state declarations and reestablishes review by the FOJ. In such a case, the FOJ may refuse to grant mutual assistance, request clarification, or demand a new declaration of reciprocity.

3. Scope

14 The requested state may require the requesting state to provide a guarantee of reciprocity whereby it undertakes to grant mutual assistance in the future to the same extent and under the same conditions as that granted to it. By this guarantee, the requesting state undertakes to grant mutual assistance to the requested state for a specified period. It may do so in the form of an individual guarantee or global guarantees.

15 The scope of the guarantee must at least cover the purpose and content of the mutual legal assistance requested: in this case, it is an individual guarantee. The individual guarantee has the legal nature of a unilateral act whose binding nature is attributed, in public international law, to the protection of trust. However, it is subject to the condition that the requested mutual legal assistance is granted.

16 It is also possible for the guarantee to cover an entire area, such as extradition in general, but to be limited to aspects of the offense, such as the threat of a minimum penalty: in this case, we speak of comprehensive guarantees. Global guarantees fall within the scope of reciprocity in the broad sense and have the characteristics of a treaty under public international law, often constituting a minimum prior mutual legal assistance agreement, which may, however, be of a certain duration.

17 The guarantee of reciprocity is not subject to any particular formal requirements, but it must be in writing. It may, for example, take the form of an exchange of letters. The national law of the requesting State determines who is competent to grant the guarantee of reciprocity. In Switzerland, in accordance with Art. 8 para. 3 IMAC, the Federal Council is responsible for guaranteeing reciprocity to other states. The FOJ has the power to assess whether it is appropriate to request a declaration of reciprocity in its capacity as central authority. In practice, it is the International Mutual Assistance Division of the FOJ that requests a guarantee of reciprocity if circumstances so require. The Federal Department of Foreign Affairs (FDFA), in particular the Directorate of International Law (DIL), may be consulted if political or diplomatic considerations so warrant.

18 It is clear that the requesting state, which agrees to provide a guarantee of reciprocity, is bound by it only if the requested state accepts it. Acceptance is preceded by an examination to determine whether the declaration guarantees reciprocity at least to the extent of the request for assistance. Acceptance depends on the form and content of the requesting State's declaration, but also on its reliability and the political context.

19 As the FOJ is responsible for determining whether a guarantee is necessary, it is also responsible for examining it in accordance with Art. 80p IMAC and, if necessary, accepting it.

B. Exceptions to guarantees of reciprocity (para. 2)

20 In certain exceptional cases, Switzerland may grant mutual assistance even if reciprocity is lacking, in accordance with Art. 8 para. 2 IMAC. Reciprocity is not required for simple notifications. Nor is it required where the execution of the request is in the interest of criminal prosecution, in the interest of the person being prosecuted, or even where it serves to clarify an act directed against a Swiss citizen.

21 The FOJ is responsible for determining whether the request for assistance can be exempted from the guarantee of reciprocity because it falls within the scope of Art. 8 para. 2 IMAC. In doing so, it also has broad discretion. The opinion of the person concerned by the request for assistance has limited weight in the assessment of reciprocity, since this requirement is primarily in the interest of the state, not of the person concerned by the request. The person concerned cannot demand that a guarantee of reciprocity be provided, but may invoke its absence when it is favorable to them, in particular to challenge the legality of the mutual assistance. However, they cannot oppose the granting of mutual assistance on the sole ground that reciprocity is ensured but would be unfavorable to them.

22 Reciprocity is not necessary where the execution of the request appears to be required by the nature of the act committed or by the need to combat certain forms of crime, the prosecution of which is in the international public interest. This exception applies in particular to the suppression of organized crime and economic crime, money laundering and corruption, as well as international crimes. In other words, in certain cases, Switzerland has an interest in granting mutual legal assistance for certain offenses because of their serious nature. These offenses undermine the peace, security, or fundamental values of the international community. According to Popp, these must be offenses that are subject to international criminal prosecution and must be criminalized by international conventions, such as genocide, racial discrimination, hostage-taking, terrorism, slavery, counterfeiting, trafficking in children and women, or money laundering.

23 Reciprocity may also be excluded where the execution of the request is in the interest of the person being prosecuted or their prospects for reintegration. An improvement in the situation of the person being prosecuted is only conceivable in the context of minor mutual assistance and is limited to evidence that is exculpatory. Whereas the situation in which the execution of the request for mutual assistance is likely to improve the chances of social rehabilitation of the person being prosecuted refers to the execution and may extend to extradition. This corresponds in particular to the content of Art. 100(b) IMAC, which provides that:

" The execution of a Swiss criminal decision may be delegated to a foreign state if the delegation is likely to improve the social rehabilitation of the convicted person or if Switzerland cannot obtain extradition."

24 Finally, reciprocity is not necessary when the purpose of the request is to investigate an offense against a Swiss citizen. This category of exception may apply to minor mutual assistance and extradition. The provision also appears to extend to the prosecution of offenses committed against legal persons domiciled in Switzerland. This exception is based on the desire to protect the fundamental interests of Switzerland and its nationals, whether natural or legal persons. However, in an international context marked by the proliferation of international mutual legal assistance treaties and the affirmation of principles of cooperation and mutual recognition, unilateral recourse to mutual assistance without reciprocity could be perceived as a weakening of the principle of reciprocity, a pillar of equality between states.

Bibliography

Ludwiczak Glassey Maria, Commentaire de l’article 8 EIMP, in : Ludwiczak Glassey Maria/Laurent Moreillon, Petit Commentaire, Loi sur l’entraide pénale internationale, Bâle 2024

Ludwiczak Glassey Maria, Entraide judiciaire internationale en matière pénale, Bâle 2018

Maeder Stefan, Commentaire de l’article 8 EIMP, in : Niggli Marcel Alexander/Heimgartner Stefan (Hrsg.), Internationales Strafrecht, IRSG, GwÜ, Basler Kommentar, Bâle 2015

Moreillon Laurent (éd), Entraide internationale en matière pénale, Commentaire romand, Bâle 2004

Popp Peter, Gründzüge der internationalen Rechtshilfe in Strafsachen, Bâle/Genève/Munich 2001

Sager Christian, Der Gegenrechtsgrundsatz im Rechtshilferecht – ein alter Zopf?, AJP 2014, p. 224 s.

Zimmermann Robert, La coopération judiciaire internationale en matière pénale, 6^e éd., Berne 2024