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- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
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- 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
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- 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
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- Art. 52 PRA
- Art. 53 PRA
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- Art. 55 PRA
- Art. 56 PRA
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- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
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- Art. 67 PRA
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- Art. 75 PRA
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- 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
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- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
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- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
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- Art. 42 FADP
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- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
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- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
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- Art. 63 FADP
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- 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. General information
A. The transfer of sentenced persons
1 The transfer of sentenced persons is a more recent area of international mutual assistance in criminal matters, compared with mutual legal assistance and extradition. For reasons of national sovereignty, criminal sanctions used to be enforced on the territory of the State that imposed the sanction. The ever-increasing ease with which people can travel between different States means that some of them commit offences in a State other than their State of nationality and/or residence, and have to undergo a custodial sentence in an unfamiliar environment, far from their family and social ties. However, the aim of criminal law enforcement is also to socially reintegrate the person convicted of an offence, once the sentence has expired. Such social reintegration is not possible, or is made more difficult, if the person serves his or her sentence abroad. What's more, enforcing a criminal sanction in a state other than the one of nationality and/or residence can lead to discrimination against convicted offenders who do not speak the language, or who may be restricted in certain ways from serving their sentence, e.g. because of a greater risk of absconding. As a result, the transfer of sentenced persons has become an increasingly common practice on the international scene.
2 The transfer of sentenced persons refers to the case where a person has been sentenced in a state other than that of his or her nationality and/or residence, but would be transferred to the latter to serve the custodial sentence to which he or she has been sentenced. The sentenced person does not, however, have a right to be transferred. They can express their wish to be transferred to either the sentencing or the enforcing state, but it is these two states which then decide on the transfer.
3 The main purpose of a transfer is humanitarian, enabling the sentenced person to be better reintegrated into society. Enforcing a custodial sentence in the State of nationality and/or residence gives a better prospect of reintegration following the sentence, since it enables the person to maintain his or her family and social network, for example, and relieves the sentencing State of the costs of a person who in principle should not remain in the sentencing State on release. This is particularly the case when the convicted person has lost his residence permit as a result of his conviction. Serving a sentence in the territory of a State from which the person will subsequently be expelled offers virtually no possibility of reintegration.
B. Legal bases
4 The transfer of sentenced persons is governed mainly by international agreements. The IMAC does contain a few provisions relating to the enforcement of decisions (art. 94ss). Enforcement of decisions, however, concerns cases where a person has been sentenced abroad but is still in Switzerland. In contrast, the transfer of sentenced persons is not regulated in detail in the IMAC. It involves not only the enforcement of the decision, but also a change in the place where the sentence is to be served, and therefore in the convicted person's place of residence. The transfer of sentenced persons therefore contains elements of both sentence enforcement within the meaning of art. 94 ff. of the IMAC and extradition within the meaning of art. 32 ff. Because of this second dimension, i.e. the physical transfer of the person, it is important for the two States involved to agree on the surrender of the person and on the terms and conditions thereof, and this requires the conclusion of an international agreement. The CTPC Message also specifies that the transfer of Swiss nationals sentenced abroad can only take place in very limited cases, on the basis of national law. In most cases, therefore, the transfer of sentenced persons requires an international, bi- or multilateral treaty between Switzerland and the sentencing or executing state.
5 For Switzerland, the CTPC is the main instrument for the transfer of sentenced persons. It was adopted in the early eighties, much later than the conventions on extradition and mutual legal assistance (adopted in the late fifties), and is open to ratification by non-member states of the Council of Europe (hereafter: CoE). It has been widely ratified by non-member states of the CoE: 23 non-member states have ratified it, for a total of 69 ratifications. Switzerland ratified it on May 1, 1988, and supports non-member states wishing to join the CoE. Thanks to its widespread ratification, the CTPC has acquired a special status as the most widely ratified international instrument on the transfer of sentenced persons. The Organization of American States (OAS) has adopted the Inter-American Convention on the Enforcement of Decisions Rendered by Foreign Criminal Courts. Like the CTPC, it was adopted within the framework of a regional organization, but is also open to ratification by non-member states. Switzerland, however, is not a party. The number of states that have ratified the OAS instrument is also more limited, with 24 states having done so. The CTPC is therefore the standard applicable in Switzerland for transfers.
6 Other instruments also contain transfer provisions. These include the United Nations Convention against Transnational Organized Crime, Art. 17 of which states that States may consider concluding bilateral or multilateral agreements on this subject, the United Nations Convention against Corruption, Art. 45 of which states that States may consider concluding bilateral or multilateral agreements on this subject, and other international instruments in their respective fields of application. The provisions of these instruments are not very detailed, however, and encourage States to conclude bi- or multilateral treaties. The exception is the Ljubljana-Hague Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity, War Crimes and Other International Crimes, adopted on May 26, 2023 in Ljubljana. The latter, not yet in force, contains a detailed chapter on the transfer of sentenced persons (Chapter V, art. 66 ff). However, this chapter is largely inspired by the principles of the CTPC.
7 As mentioned above, Switzerland generally encourages States to accede to the CTPC. However, in cases where the State does not do so, the only possibility of transferring a Swiss national sentenced to a long custodial sentence abroad is to negotiate a bilateral agreement, since the Swiss authorities must in principle be bound by a treaty with each State with which a transfer is envisaged. As a result, several transfer agreements have had to be concluded.
II. Background
8 Following ratification of the CTPC, Switzerland mainly carried out transfers on the basis of this instrument. However, humanitarian considerations led Switzerland to conclude bilateral agreements with certain States for which ratification of the CTPC was not a prerequisite. In 1997, for example, Switzerland concluded a transfer treaty with Thailand, followed by one with Morocco in 2002.
9 However, these agreements required the approval of the Federal Assembly. The parliamentary procedure can be lengthy, as the Federal Assembly has to be consulted for each treaty, even though their content is similar and corresponds to CTPC standards. However, time is of the essence when it comes to adopting these treaties, as they are often negotiated on the basis of a specific case, such as a Swiss person sentenced to a long custodial sentence in a country where detention conditions do not necessarily correspond to Swiss standards. The sooner the treaty enters into force, the sooner the person should be able to be transferred.
10 In order to facilitate the procedure, and to avoid repeatedly involving the Federal Assembly in accepting similar texts, the content of which it has already decided upon, Art. 8a has been adopted. It allows the Federal Council to adopt transfer treaties on its own, provided they are based on the CTPC. This article was submitted to the Federal Assembly in parallel with the approval of the treaty with Morocco. Art. 8a IMAC came into force on November 1, 2002.
III. Scope of application
11 Art. 8a IMAC provides that the Federal Council may conclude bilateral transfer treaties on its own, if these are based on the CTPC. This is a delegation of competence (A.) which implies the fulfilment of various conditions (B.).
A. Delegation of competence
12 Art. 8a IMAC is a regulation delegating competence. Under Swiss law, it is in principle the Federal Assembly which is competent to approve international treaties (art. 166 para. 2 first part Cst.). This stems from the fact that important legislative acts must be approved by parliament, and underpins the principle of legality. The Federal Assembly may, however, delegate this power to the Federal Council by means of a law or treaty (art. 166 para. 2 second part Cst.). This possibility of delegating authority is specified in art. 7a LOGA. It must be based on a law or treaty approved by the Federal Assembly, and be sufficiently limited and precise. It is particularly common if the treaties are, for example, technical and similar, in order to avoid overloading the work of the Federal Assembly. The Federal Council may then conclude a treaty, but only within the framework of this delegation of powers. If the treaty goes beyond what is permitted by the delegation, the approval of the Federal Assembly is required.
13 With regard to the transfer of sentenced persons, as mentioned above, Switzerland must, in principle, have a treaty in place in order to transfer a sentenced person. If Switzerland encourages states to join the CTPC, it must conclude bilateral agreements with those that do not. This could lead to the conclusion of a large number of bilateral agreements similar in content to the CTPC. In order to relieve the Federal Assembly and facilitate the adoption of such treaties, an amendment to the IMAC has been proposed. Art. 8a IMAC has been added.
B. Conditions
14 As prescribed by art. 166 para. 2 Cst and art. 7a LOGA, art. 8a IMAC constitutes a norm of delegation of competence. Several conditions must be met before the Federal Council can conclude an agreement without the approval of the Federal Assembly.
15 The first is that the treaty covered by this provision must be a bilateral treaty between Switzerland and another state. Multilateral treaties remain the responsibility of the Federal Assembly, and must be approved by the latter before they can be ratified by the Federal Council.
16 The second condition is that the treaty deals with the transfer of sentenced persons. Other matters governed by the IMAC are not affected by this delegation of competence. Thus, treaties dealing with international mutual assistance in criminal matters, extradition or the delegation of criminal prosecution remain within the competence of the Federal Assembly. Treaties concerning the enforcement of other criminal decisions which do not involve the transfer of convicted persons, such as the enforcement of financial sanctions, must also be approved by the Federal Assembly.
17 The third condition is that the treaties concluded by the Federal Council must be inspired by the principles laid down in the CTPC. As mentioned above, the CTPC is of particular value in Switzerland and on the international scene, as it is an instrument that enjoys widespread ratification and to which Switzerland acceded many years ago. In addition, the CTPC was the subject of a parliamentary procedure during which the Federal Assembly was able to express its opinion on its content, and accepted its ratification. As a result, the principles enshrined in the Convention have been the subject of a democratic process in Switzerland, and are now part of Swiss law. Insofar as the Federal Assembly has already been consulted on them, a new consultation for each treaty that incorporates the principles of this instrument can be seen as superfluous.
18 It should be pointed out, however, that only the principles laid down in the CTPC can be included in treaties which the Federal Council is empowered to conclude alone. If the treaty includes principles from the Additional Protocols to the CTPC, it must be approved by the Federal Assembly. For example, bilateral treaties which provide for "forced" transfer, i.e. transfer without the consent of the sentenced person, as provided for in the Additional Protocol to the CTPC, must be submitted to the Federal Assembly. This is the case for the treaty with Kosovo, which was concluded in 2012 and approved by the Federal Assembly in 2013.
19 Finally, the message also specifies that the treaty must not be subject to an optional referendum. Treaties on the transfer of sentenced persons adopted prior to this delegation of competence were not subject to referendum (neither the treaty with Thailand nor that with Morocco were subject to referendum, nor indeed the CTPC). However, these treaties were approved prior to the amendment of art. 141 Cst and the addition of para. 3 to letter d., which stipulates that treaties containing important provisions establishing rules of law must be submitted to a referendum. General and abstract provisions of direct application which create obligations, confer rights or allocate powers are deemed to establish rules of law (art. 22 para. 4 LParl). Moreover, the Federal Assembly appears to interpret this rule restrictively, and to require a referendum even where treaties are similar in terms of content. Transfer treaties adopted after the constitutional amendment would, in our view, be subject to an optional referendum. This is the case with the treaty between Switzerland and Kosovo, which was subject to such a referendum.
20 In our opinion, however, this condition should not be mentioned, as it is not a condition in itself. Indeed, the optional referendum can only be requested for acts that have been approved by the Federal Assembly, and the very purpose of the delegation provided for in Art. 8a is that treaties falling within the scope of this delegation of competence should not be approved by the Federal Assembly. They will therefore not be subject to an optional referendum, by virtue of art. 8a IMAC.
C. Practice
21 Following the entry into force of art. 8a IMAC, Switzerland has concluded several bilateral treaties making use of this delegation of competence. Agreements have been concluded with Peru, Paraguay, the Dominican Republic, Cuba, Brazil and Barbados. These agreements, insofar as they are inspired by the principles of the CTPC, were concluded directly by the Federal Council without being submitted to the Federal Assembly.
22 In contrast, the treaty with Kosovo, as mentioned above, provides for transfer without the consent of the person concerned. It goes further than the CTPC, since it incorporates standards contained in the Additional Protocol to the CTPC. It has therefore been approved by the Federal Assembly, as it falls outside the scope of the delegation of competence.
The opinion expressed reflects the personal opinion of the author and is not binding on the Federal Office of Justice.
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