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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
MEDICAL DEVICES ORDINANCE
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
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
- I. General
- II. History
- III. The entitled parties
- A. General
- B. Party status
- C. Procedural consequences of party status
- IV. Right to inspect files
- A. Duty to keep records as a prerequisite
- B. Scope of the right to inspect files
- C. Modalities of the right of access to the file
- D. Time of granting access to the files
- E. Appeals procedure
- V. 'Right to participate'
- A. Right to make representations in advance
- B. Differentiation from Art. 65a IMAC
- VI. Restrictions
- A. Reasons for restriction (Art. 80b para. 2)
- B. Limits to the refusal of access
- C. Procedural issues
- Bibliography
- Materials
I. General
1 The parties to the proceedings concerning accessory legal assistance shall have the right to a hearing in court, in particular to the issuing of rulings, to inspect files, to express their views in advance and to the grounds for the rulings. These party rights are typical of administrative proceedings under special legislation. In addition to the IMAC and IMACO, they are enshrined in the APA, which applies as subsidiary procedural law (Art. 12 para. 1 IMAC), although a large part of current practice has developed on a caseby-case basis.
2 Art. 80b para. 1 IMAC regulates one aspect of the right to a fair hearing, namely the right of access to documents and the right to participate. Art. 80b paras. 2 and 3 IMAC contain provisions restricting the right of access to documents. Art. 80b IMAC is supplemented and specified by Art. 26, 27, 28 and 30 APA.
3 With regard to the 'right to participate' stipulated in Art. 80b para. 1 IMAC, it should be noted that case law essentially derives the right to make a statement from this and thus does not mean the right to participate in the foreign criminal investigation.
4 The procedural provisions of Art. 80b IMAC are directed at the executing authorities – in particular the cantonal public prosecutors (Art. 55 para. 1 CrimPC), the Office of the Attorney General of Switzerland or administrative penal authorities (Art. 17 para. 4 and Art. 79 para. 2 IMAC) and the Federal Office of Justice in the cases under Art. 79a IMAC. These are responsible for granting the right to be heard. The holder of the rights, however, is the party to the mutual assistance proceedings (“the entitled party”).
5 Art. 9 BG-RVUS contains an identical provision for mutual assistance with the USA. Art. 52 and 55 para. 1 IMAC apply to extradition proceedings within the scope of the IMAC.
II. History
6 Article 80b IMAC was included in the Act as part of the revision of the IMAC of 4 October 1996 (which came into force on 1 February 1997) and its wording has remained unchanged since then.
7 The right to participate was not explicitly regulated in the version of the IMAC that came into force on January 1, 1983. The right to inspect files, on the other hand, was enshrined in Art. 79 para. 3 IMAC. With regard to the right to inspect files, the former Art. 76 para. 3 IMAC stipulated that Art. 6, 26 and 27 APA also apply to its exercise in cantonal proceedings and that the request for legal assistance and the associated documents may be inspected by the person entitled to do so insofar as this is necessary to safeguard his interests. The accused, who was not personally affected by the legal assistance measure, should only be entitled to inspect the files if he was habitually resident in Switzerland, and then 'only in the interest of safeguarding his rights of defense in foreign criminal proceedings' (Art. 79 para. 3 p. 2 and 3 IMAC in the version in force until February 1, 1997).
III. The entitled parties
A. General
8 The right to inspect files and the right to participate within the meaning of Art. 80b para. 1 IMAC are granted to the entitled parties. According to established practice, the entitled party under Art. 80b para. 1 IMAC is the party to the mutual assistance proceedings. Unlike the APA and the CrimPC, however, neither the IMAC nor the IMACO define who is a party in mutual assistance proceedings. According to the practice of the Federal Supreme Court, a party is someone who is personally and directly affected by a mutual assistance measure and has a legitimate interest in its revocation or amendment. Consequently, party status is based on the right of appeal within the meaning of Art. 80h let. b IMAC. This is no different in the scope of application of the APA: the definition of a party in Art. 6 APA refers to the right to appeal under Art. 48 APA.
B. Party status
9 Unlike in a criminal investigation, the focus of the proceedings in a case of minor legal assistance is not on the accused, but on evidence and assets. Accordingly, party status depends on the relationship to the evidence or asset. Generally speaking, the party in the legal assistance proceedings is the person against whom a criminal procedural measure has been ordered or carried out. Consequently, the question of party status in mutual assistance proceedings must be examined separately for each mutual assistance measure. Due to the restrictive standard, only one person can have party status per mutual assistance measure.
10 The requesting state does not have party status in the mutual assistance proceedings.
11 The following are examples of the persons who are considered to be parties – and thus entitled parties within the meaning of Art. 80b para. 1 IMAC – in the case of specific legal assistance measures:
In the case of measures concerning a bank account, in principle only the account holder, or in the alternative, the so-called “beneficial owner” and, in exceptional cases, the bank managing the account.
In the case of house searches (Art. 244 CrimPC), the person who has the actual power of disposal over the searched premises. This can be either the tenant or the owner.
In the case of measures concerning motor vehicles, the vehicle owner.
In the case of disclosure orders (Art. 265 CrimPC), the person obliged to disclose.
In the case of the search of persons (Art. 249 f. CrimPC), the searched person.
In the case of the surrender for forfeiture or restitution, in addition the bona fide third party (Art. 74a para. 4 let. c IMAC).
In the case of interrogations under mutual assistance (Art. 142 ff. CrimPC), a distinction is made depending on the function of the person to be interrogated: the accused and the person providing information in accordance with Art. 178 let. d CrimPC are always granted party status. By contrast, witnesses only have the status of a party if their own statements also concern them or to the extent that they can invoke a right to refuse to testify.
12 The above also have the status of a party in principle if they had to submit to the corresponding criminal procedural measure in the context of Swiss criminal proceedings and the evidence collected in this regard is included in the legal assistance proceedings.
C. Procedural consequences of party status
13 If a person is a party to the legal assistance proceedings, this means that they are entitled to inspect the files and have the right to participate in the proceedings in accordance with Art. 80b para. 1 IMAC.
14 In principle, granting party status and party rights does not require a formal decision, but refusal does. The decision by which the executing authority denies the party status of a litigant and thus refuses the right of access to the case-file and the right to participate is to be treated procedurally as a final decree with regard to that person, which can be challenged by means of an appeal to the Appeals Board of the Federal Criminal Court.
15 In assessing the party status, the executing authority has a discretionary scope. In particular, it may also grant the rights of a party in the event of a questionable party status and is not necessarily obliged to order the exclusion of the party seeking justice.
16 The right to inspect files and to express oneself is subject to the requirement of having one's domicile/registered office or address for service in Switzerland.
IV. Right to inspect files
17 The right to inspect files under Art. 80b para. 1 IMAC should enable the party to the mutual assistance proceedings to inform themselves about the case files at the latest before the formal conclusion of the mutual assistance proceedings (final ruling under Art. 80d IMAC or simplified execution under Art. 80c IMAC), in particular to enable them to exercise their right to be heard in a manner that is relevant to the case.
A. Duty to keep records as a prerequisite
18 The right to inspect records implies the duty of the legal assistance authorities to keep records. The legal assistance authorities are specifically obliged to include in the records everything that is relevant to the case and may be decisive for the decision. Typical records in a legal assistance case include:
the (translated) request for legal assistance incl. enclosures;
any requests for additional information;
the mutual assistance rulings issued;
the delegation ruling from the Federal Office of Justice;
the evidence intended for disclosure;
party submissions; and
the correspondence with the requesting authority relevant to the decision.
19 The following are not to be considered relevant: internal administrative files created in connection with the execution of the legal assistance proceedings, in particular notes in the executing authority's files, copies of e-mails between authorities or notes of telephone conversations.
20 In the context of international cooperation between law enforcement authorities, so-called coordination meetings are held time and again in advance of or in the course of executing a request for mutual assistance. Within the scope of the CrimPC, the Federal Supreme Court has ruled that international meetings between law enforcement authorities that are limited to purely coordinating matters are not covered by the obligation to keep minutes and thus do not find their way into the criminal files. This principle also applies to mutual assistance proceedings without further ado.
21 The question of whether or not a so-called spontaneous transmission under Art. 67a IMAC that forms the basis of a later request for mutual assistance should be included in the procedural files of a mutual assistance procedure was essentially answered in the negative in the case law of the Federal Supreme Court. If the report under Art. 67a IMAC is not or never added to the mutual assistance files, however, there is – in effect – no legal protection in connection with the unsolicited transmission. This contradicts the older supreme court case law, according to which possible violations of Art. 67a IMAC can in principle be challenged in the final decree. According to the view presented here, spontaneous transmissions under Art. 67a IMAC are only rarely essential to the legal assistance proceedings. This is because they regularly do not contain any information for the legal assistance proceedings that goes beyond the request for legal assistance. Due to the unclear legal situation described above, the executing authorities should nevertheless include reports in accordance with Art. 67a IMAC in the legal assistance files in case of doubt. A restriction of the inspection of files in this regard can still be examined based on Art. 80b para. 2 IMAC.
22 In practice, the executing authorities usually open one mutual assistance procedure per mutual assistance request and create the files accordingly. Alternatively, it is possible to open one mutual assistance procedure per piece of evidence/asset. This makes particular sense if a large number of criminal procedural measures are carried out in the context of a mutual assistance request, affecting different parties.
B. Scope of the right to inspect files
23 The right of a party to mutual assistance proceedings to inspect files is by no means all-encompassing. In particular, it is limited in personal terms to those procedural files that are relevant to the party in question. Consequently, there is no right of access to investigative actions or evidence collected for which the person seeking justice does not have party status. The corresponding information in this regard can also be made unrecognizable by the executing authority in the request for legal assistance. The same applies to facts that are not relevant for this party.
C. Modalities of the right of access to the file
24 The executing authority is responsible for maintaining the records and granting access to the records. It decides what belongs in the case file and the extent to which the party may inspect the records. Those seeking justice can be confident that only those parts that are not subject to the right of access to records have actually been removed or redacted.
25 Access to the files is granted upon request and usually takes place at the offices of the executing authority. There is no right to the disclosure or delivery of original files or copies. Nevertheless, many public prosecutor's offices provide the parties or their legal representatives with the procedural files in digital form. In certain cases, original files may be disclosed to an authorized attorney. If the party agrees, the legal assistance authority may send the files electronically for inspection in accordance with Art. 26 para. 1bis APA. However, there is no general right to electronic delivery.
D. Time of granting access to the files
26 Access to the files must be granted at the latest before the conclusion of the mutual assistance proceedings (final ruling under Art. 80d IMAC or simplified execution under Art. 80c IMAC).
27 The right to access to the files under Art. 80b para. 1 IMAC exists as long as it is necessary to safeguard the interests of the party to the mutual assistance proceedings. Accordingly, the party no longer has the right to inspect the files if the mutual assistance proceedings have been legally concluded (see also Art. 80m para. 2 and 80n para. 2 IMAC).
E. Appeals procedure
28 For the purposes of conducting the appeal proceedings, the Appeals Court of the Federal Criminal Court may request the executing authority to submit the case file on the basis of Art. 57 para. 1 APA. The submission of the case file is an official duty in the context of administrative assistance.
29 However, the executing authority's obligation to hand over the files to the Complaints Board of the Federal Criminal Court applies only to those documents on which the contested decision is based, i.e. those files for which the party has a right of access. According to practice, only these files are to be made available to the Complaints Board of the Federal Criminal Court in the corresponding form (i.e. with any covers removed). Consequently, the court of appeal does not carry out any triage (e.g. by party).
30 If procedural documents that are essential for the decision are missing, the Complaints Board of the Federal Criminal Court will, as a matter of practice, contact the executing authority. If the executing authority again fails to provide the relevant documents to the court, this constitutes a violation of the right to be heard, according to the case law of the Federal Criminal Court.
V. 'Right to participate'
31 The case law essentially derives the right to make representations in advance from the 'right to participate' mentioned in Art. 80b para. 1 IMAC.
32 Further 'participation rights' in mutual assistance proceedings also arise in particular from the provisions of the IMAC and the CrimPC.
A. Right to make representations in advance
33 The right to make a statement in advance (Art. 80b para. 1 IMAC in conjunction with Art. 30 APA) is the core element of the right to be heard. In the case of minor legal assistance, this right exists only with regard to the final ruling (Art. 80d IMAC). It is safeguarded if the party is invited to submit a written statement before the conclusion of the legal assistance proceedings, listing the evidence/assets intended for handover. This gives the party the opportunity to comment on the legal assistance proceedings, to submit requests and, if necessary, to submit evidence. In practice, the executing authority sets a deadline for the party to submit its statement and at the same time asks whether it irrevocably agrees to the simplified procedure under Art. 80c IMAC. The deadline for the statement should not be shorter than 10 days. When setting the deadline, the complexity of the legal assistance proceedings and the volume of the case file must be taken into account. In certain circumstances, the executing authority can extend the deadline. However, there is no right to an oral hearing.
34 The following party rights in legal assistance proceedings correlate with the right to make a statement in advance or have an auxiliary function in this regard:
the right to be informed of rulings (Art. 80m IMAC and Art. 34 para. 1 APA);
the right to inspect files (Art. 80b para. 1 IMAC and Art. 26 et seq. APA);
the right to the grounds for the ruling (Art. 80a and 80d IMAC and Art. 35 para. 1 APA);
right to representation and free legal aid (Art. 21 IMAC and Art. 29 para. 3 FC).
B. Differentiation from Art. 65a IMAC
35 The rights of the parties in the mutual assistance proceedings must be distinguished from the rights to participate in the gathering of evidence in the foreign criminal investigation on which the mutual assistance proceedings are based.
36 If the requesting state requests, based on its procedural law, that the accused, a co-accused or the private claimant or their legal counsel, for example, be present in Switzerland during the taking of evidence, the executing authority may grant this request on the basis of Art. 65a IMAC or analogous treaty provisions. In terms of the subject matter, the right to participate primarily concerns interrogations (Art. 142 et seq. CrimPC). It would also be conceivable to participate in inspections (Art. 193 CrimPC) and in the collection of expert opinions (cf. Art. 185 CrimPC). However, the parties to the foreign criminal investigation do not have the status of parties to the legal assistance proceedings.
VI. Restrictions
37 The right to be heard is not absolute. It is limited in particular by overriding public interests or the legitimate interests of third parties. With regard to the right to inspect files, Art. 80b para. 2 IMAC governs the grounds that justify a restriction, and Art. 80b para. 3 IMAC specifies the principle of proportionality in this context.
38 With regard to the right to make prior representations, it is not clear to what extent the provisions of Art. 80b paras. 2 and 3 IMAC could be relevant.
39 The provisions of Art. 80b paras. 2 and 3 regarding restrictions only apply if there is a right of access to the file: i.e. the specific piece of file material is in the case file (and is therefore particularly crucial) and it is of relevance to the person requesting access to the file. In addition, the claim must also exist in terms of time, which means that the legal assistance proceedings must in principle be nearing their formal conclusion.
A. Reasons for restriction (Art. 80b para. 2)
40 The alternative grounds for restriction of the right of access to files are set out in Art. 80b para. 2 let. a–e IMAC. However, this very generally formulated list is not exhaustive: in particular, according to case law, the right of access to files can also be restricted on the basis of Art. 27 APA.
1. In the interests of the requesting state (lit. a and b)
41 The right to inspect files can be restricted in the interests of the requesting state, namely “in the interests of foreign criminal proceedings” (Art. 80b para. 2 let. a IMAC) or “to protect an essential legal interest, provided that the requesting state requests it” (Art. 80b para. 2 let. b IMAC).
42 As Heimgartner has already correctly recognized, both alternatives require at least an implicit request by the requesting authority to restrict the right to inspect files. In the case of these alternatives, which cannot be clearly distinguished, the restriction can ultimately only relate to certain sections of the request for mutual assistance or its enclosures. Reasons for a request by the requesting authority to limit the right to inspect files could include, in particular:
risk of collusion in the foreign criminal investigation;
internal and external security of the requesting state;
security of persons involved in the foreign criminal investigation (witnesses, informants, suspects, experts, translators and members of law enforcement authorities or their relatives);
private interests such as medical files or manufacturing, business and patent secrets in the requesting state.
43 When considering the restriction of the right to inspect files, particular account must be taken of the fact that the principle of trust applies under international law, i.e. that in principle the accuracy of statements made by the requesting authority can be trusted. Thus, the requested authority is not required in principle to check whether, for example, there is actually a risk of collusion in the foreign criminal investigation.
2. Nature or urgency of the measure to be taken (c)
44 Art. 80b para. 2 let. c IMAC states that the right to inspect files may be restricted due to the nature or urgency of the measures to be taken. According to the message, this variant should in particular make it possible to restrict a party's access to the file in the run-up to seizure (Art. 263 et seq. CrimPC) and confiscation (Art. 69 et seq. SCC). In contrast, legal doctrine associates the provision with secret surveillance measures (Art. 269 et seq. CrimPC).
45 According to the view presented here, Art. 80b para. 2 let. c IMAC is a dead letter, since no constellations can be identified in which the scope of application could take effect: on the one hand, in the run-up to criminal procedural measures such as seizure, observation and the surveillance of postal and telecommunications traffic, there is no right to inspect files anyway. On the other hand, the rights of the parties must be granted in advance of the final decree. It is no coincidence that there is no relevant case law on the provision.
3. Protection of essential private interests (lit. d)
46 The right of access to files may also be restricted in order to protect important private interests (Art. 80b para. 2 let. d IMAC). The protection of private confidentiality interests is concerned with safeguarding the private and secret spheres. This may include medical files or manufacturing, business and patent secrets.
4. In the interests of Swiss proceedings (let. e)
47 If criminal investigations are being conducted in Switzerland and in the requesting state that are factually connected, the inspection of files in the legal assistance proceedings may be restricted in the interests of the Swiss criminal investigation (Art. 80b para. 2 let. e IMAC). In this context, particular consideration should be given to the risk of collusion in the Swiss criminal proceedings or the safety of persons involved in the Swiss criminal investigation (witnesses, respondents, experts, translators and members of the prosecuting authorities or their relatives).
5. Significant public interests of the Confederation or the cantons (Art. 27 para. 1 let. a APA)
48 The implementing authority may also refuse access to the file if significant public interests of the Confederation or the cantons, in particular the internal or external security of the Confederation, require confidentiality (Art. 27 para. 1 let. a APA). According to the Federal Criminal Court, there is a particular interest in ensuring the safety of informants and contacts and in not disclosing the manner in which the Swiss authorities and their missions abroad obtain information. In practice, this has mainly involved statements by the Federal Department of Foreign Affairs for the attention of the Federal Office of Justice regarding the institutions of the requesting state.
B. Limits to the refusal of access
49 Access may only be refused for specific items for which there are reasons of secrecy (Art. 80b para. 3 IMAC). Consequently, the refusal is to be limited to the strict minimum required, and the remaining and thus non-secret content of the files or the relevant file piece is to be made accessible in a suitable form (by singling out, covering the passages to be kept secret, the names and identifying information of authors and contact persons, etc.).
C. Procedural issues
50 Art. 80 para. 2 IMAC is a so-called discretionary provision. The executing authority thus has a margin of discretion in deciding whether – under the given conditions – a restriction of the access to the records should be made.
51 According to case law, the executing authority may not base its final ruling on secret parts of the records that are inaccessible to the parties. If it wishes to rely on a secret document to the detriment of a party, it must give that party oral or written notice of the essential content of the secret document and the opportunity to comment on it.
52 A restriction of access to the file under Art. 80b para. 2 IMAC can only be challenged in the context of the final ruling.
The author is a federal prosecutor in the field of international mutual assistance in criminal matters. His legal opinion is independent of that of his employer. The author is a research associate at the University of Zurich. Terms in the text that refer to persons apply equally to women and men.
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Stelzer-Wieckowska Marta, Die kleine Rechtshilfe in Strafsachen: grundrechtliche Stellung der betroffenen Person, Zürich 2022.
Seethaler Frank/Plüss Kaspar, Kommentierung zu Art. 57 VwVG, in: Waldmann Bernhard/Weissenberger Philippe (Hrsg.), Praxiskommentar Verwaltungsverfahrensgesetz, 2. Aufl., Zürich 2016.
Waldmann Bernhard/Bickel Jürg, Kommentierung zu Art. 30 VwVG in: Waldmann Bernhard/Weissenberger Philippe (Hrsg.), Praxiskommentar Verwaltungsverfahrensgesetz, 2. Aufl., Zürich 2016.
Patrick Sutter, Kommentierung zu Art. 30 VwVG, in: Auer Christoph/Müller Markus/Schindler Benjamin (Hrsg.), VwVG – Bundesgesetz über das Verwaltungsverfahren: Kommentar, 2. Aufl., Zürich 2019.
Waldmann Bernhard/Oeschger Magnus, Kommentierung zu Art. 26 VwVG, in: Waldmann Bernhard/Weissenberger Philippe (Hrsg.), Praxiskommentar Verwaltungsverfahrensgesetz, 2. Aufl., Zürich 2016.
Zimmermann Robert, La coopération judiciaire internationale en matière pénale, 5. Aufl., Bern 2019.
Materials
Botschaft betreffend die Änderung des Rechtshilfegesetzes und des Bundesgesetzes zum Staatsvertrag mit den USA über gegenseitige Rechtshilfe in Strafsachen sowie den Bundesbeschluss über einen Vorbehalt zum Europäischen Übereinkommen über die Rechtshilfe in Strafsachen vom 29.3.1995, BBl 1995 III 1 ff., abrufbar unter BBl 1995 III 1 - Botschaft betreffend die Änderu... | Fedlex (admin.ch), besucht am 4.4.2024 (zit. Botschaft IRSG)