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- Art. 74 FC
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- Art. 77 FC
- Art. 81 FC
- Art. 96 para. 1 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
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- Art. 130 FC
- Art. 136 FC
- Art. 164 FC
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- Art. 11 CO
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- Art. 84 CO
- Art. 97 CO
- Art. 98 CO
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- Art. 100 CO
- Art. 143 CO
- Art. 144 CO
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- Art. 146 CO
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- Art. 149 CO
- Art. 150 CO
- Art. 633 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
- Art. 808c CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
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- Art. 67 PRA
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- Art. 73 PRA
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- Art. 90 PRA
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- Art. 1 IMAC
- Art. 1a IMAC
- Art. 3 para. 1 and 2 IMAC
- Art. 8 IMAC
- Art. 8a IMAC
- Art. 11b IMAC
- Art. 16 IMAC
- Art. 17 IMAC
- Art. 17a IMAC
- Art. 32 IMAC
- Art. 35 IMAC
- Art. 47 IMAC
- Art. 54 IMAC
- Art. 55a IMAC
- Art. 63 IMAC
- Art. 67 IMAC
- Art. 67a IMAC
- Art. 74 IMAC
- Art. 74a IMAC
- Art. 80 IMAC
- Art. 80a IMAC
- Art. 80b IMAC
- Art. 80c IMAC
- Art. 80d IMAC
- Art. 80h IMAC
- Art. 80k IMAC
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- Art. 5 lit. c FADP
- Art. 5 lit. d FADP
- Art. 5 lit. f und g FADP
- Art. 6 para. 3-5 FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
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- Art. 31 para. 2 lit. e 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. 16 CCC (Convention on Cybercrime)
- Art. 18 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 27 CCC (Convention on Cybercrime)
- Art. 28 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)
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- Art. 2 para. 1 AMLA
- Art. 2a para. 1-2 and 4-5 AMLA
- Art. 2 para. 2 AMLA
- Art. 2 para. 3 AMLA
- Art. 3 AMLA
- Art. 7 AMLA
- Art. 7a AMLA
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- Art. 8a AMLA
- Art. 11 AMLA
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- Art. 29a AMLA
- Art. 29b AMLA
- Art. 30 AMLA
- Art. 31 AMLA
- Art. 31a AMLA
- Art. 32 AMLA
- Art. 33 AMLA
- Art. 34 AMLA
- Art. 38 AMLA
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
CRIMINAL CODE
CYBERCRIME CONVENTION
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
FREEDOM OF INFORMATION ACT
FEDERAL ACT ON THE INTERNATIONAL TRANSFER OF CULTURAL PROPERTY
- I. Background of Art. 80k of the IMAC Act
- II. The Starting Point of the Time Limit Under Art. 80k IMAC
- III. The 30-day period
- IV. The 10-day time limit
- Bibliography
I. Background of Art. 80k of the IMAC Act
1 Art. 80k of the IMAC Act was introduced during the 1995 revision of the Act and entered into force in 1997. It arose from lengthy discussions aimed at determining how appeal procedures should be structured in the context of mutual legal assistance. During the legislative process, two main approaches were at odds: on the one hand, the so-called Zurich method, under which an appeal would have been possible only at the time of the decision to proceed, and, on the other hand, the so-called Geneva method, under which an appeal was available only at the time of the final decision, except in exceptional situations allowing for a limited appeal against interim decisions. The Geneva method gained greater support, so that today an appeal is in principle only available against the decision to close the case, with the law permitting a limited appeal under strict conditions and, for certain decisions, only against interim decisions (Art. 80e IMAC).
II. The Starting Point of the Time Limit Under Art. 80k IMAC
2 According to Art. 80k IMAC, the appeal period begins to run upon written notification of the decision. In the banking sector, which is particularly sensitive due to “dual notification” to both the bank and the entitled party resulting from the bank’s obligations under the contract binding it to the entitled party and Art. 80n of the IMAC Act, case law has developed three principles for determining the moment at which notification to the entitled party occurs, thereby triggering the appeal period.
3 First, the written notification required by Art. 80k of the IMAC Act must be interpreted in light of Art. 80m of the IMAC Act, which concerns the notification of decisions. According to this provision, the executing authority must notify its decisions to the person domiciled in Switzerland (Art. 80m para. 1 let. a IMAC), or to the person who has elected a domicile for service in Switzerland (Art. 80m para. 1 let. b IMAC cum Art. 9 OEIMP). Thus, written notification to the entitled party is necessary for the commencement of the time limit under Art. 80k IMAC only when the executing authority is subject to a notification obligation pursuant to Art. 80m IMAC. In such a case, the time limit under Art. 80k IMAC begins to run on the day following notification of the decision (Art. 80m IMAC), in accordance with the ordinary rules applicable to administrative proceedings (Art. 20(1) cum Art. 50(1) PA). Where the person is domiciled abroad, the executing authority is not required to notify the person of the decision (Art. 9 OEIMP). It is then incumbent upon the bank that receives the decisions from the executing authority (in particular those relating to the initiation of the mutual assistance procedure or any orders for deposit or seizure) to inform the entitled party in a timely manner, prior to the conclusion of the mutual assistance procedure, so that the entitled party may, if necessary, elect a domicile in Switzerland.
4 Second, if the entitled person has not elected domicile in Switzerland, the decision to close the proceedings is served on the bank holding the requested banking documentation or the seized assets. Service on the bank does not constitute service on the entitled person, so the appeal period under Art. 80k IMAC has not yet begun to run. The time limit begins to run once the bank communicates the decision to the entitled party. However, notification to the bank triggers a 30-day period, at the end of which the decision becomes enforceable. When the decision is notified to the bank, the entitled party may therefore, in principle, still appeal within 30 days from the date on which they actually became aware of the decision to close the case. Conversely, if the entitled party comes forward after the decision has been enforced, they no longer have the right to appeal (Art. 80N para. 2 IMAC). In short, the absence of an election of domicile in Switzerland, even if voluntary, does not allow the entitled party to be subject to a 30-day appeal period starting from the notification of the decision to the bank, but does expose them to the risk of late intervention. According to case law, this approach is necessary not only due to the principle of expediency (Art. 17a IMAC), but also due to the principles of good faith and legal certainty. It is, however, fraught with some uncertainties. In particular, the question arises as to what steps the entitled party must take to preserve their right of appeal and suspend the enforceability of the decision notified to the bank. Since the legislature did not intend to create a “fictitious notification” when a decision is communicated to the bank, it must be held that a simple communication from the entitled party to the enforcement authority—for example, through a request for access to the mutual assistance proceedings file—is sufficient to suspend the enforceability of the decision, without it being necessary to file an appeal within 30 days of the decision’s notification to the bank.
5 Third, the time of the entitled party’s actual knowledge does not apply when the entitled party has entered into a “bank deposit” agreement with the bank. In this case, the decision is deemed to have been served on the entitled party when it is filed by the bank in the “bank deposit” file. The appeal period therefore does not begin to run at the time the decision was actually communicated to the account holder, but rather on the day following the decision’s filing in the file. The time at which the bank communicates with its client or the time at which the client actually becomes aware of the decision is not decisive.
6 When an account has been closed, the bank-holding agreement concluded prior to the account’s closure is no longer enforceable against the entitled party. Notification to the bank therefore does not constitute notification to the entitled party. The appeal period begins to run only upon the entitled party’s actual knowledge of the decision, in accordance with the principles set forth supra N. 4.
III. The 30-day period
7 The 30-day period applies to the decision to close the case (Art. 80k, para. 1, IMAC). A decision to close the case is one that terminates the mutual legal assistance proceedings and by which the executing authority rules on the granting and scope of assistance (Art. 80d, IMAC).
8 The seizure of assets (or the continuation of the measure), a decision of an incidental nature, may, in certain specific circumstances, be subject to a 30-day appeal period. This is the case when the transmission of banking documentation to the requesting State took place through a simplified procedure (Art. 80c IMAC) and was not the subject of a final decision. The same applies when the appeal is directed against a decision to refuse the lifting of the seizure, whereas the seizure has already been in place for a “relatively long” period of time.
9 The 30-day time limit for appealing the closure decision under Art. 80k IMAC applies only at the first instance, before the Complaints Chamber of the Federal Criminal Court (Art. 25(1) IMAC). In the second instance, before the Federal Supreme Court, the time limit for appealing a decision to close the proceedings is 10 days (Art. 100(2)(b) LTF).
10 There are no court recesses in mutual legal assistance proceedings (Art. 12(2) IMAC and Art. 46(2)(d) LTF).
IV. The 10-day time limit
11 The 10-day time limit applies to interim decisions (Art. 80k, para. 2 of the IMAC), which may be appealed (as court recesses do not apply to mutual legal assistance proceedings; supra N. 10). This is the case for the seizure of objects or assets (Art. 80e para. 2 let. a IMAC) or the presence of persons participating in the proceedings abroad (Art. 80e para. 2 let. b IMAC). The same applies to decisions not expressly mentioned in Art. 80e(2) IMAC but which may exceptionally be the subject of an independent appeal because they involve the transmission of information to the foreign authority prior to the issuance of the final decision.
12 The 10-day deadline applies only if the interim decision is challenged independently. If the appellant challenges the interim decision together with the final decision, the 30-day deadline from the written notification of the final decision applies (Art. 80k, para. 1, IMAC). In the second instance, before the Federal Supreme Court, the time limit for appealing the interim decision is also 10 days (Art. 100(2)(b) LTF).
Bibliography
Ludwiczak Glassey Maria/Moreillon Laurent (édit.), Loi sur l’entraide internationale en matière pénale, Petit Commentaire, Bâle 2024.
Niggli Marcel Alexander/Heimgartner Stefan (édit.), Internationales Strafrecht, IRSG, GwÜ, Basler Kommentar, Bâle 2015.
Wyss Rudolf, Die Revision der Gesetzgebung über die internationale Rechtshilfe in Strafsachen, RSJ 1997.