Abstract
The Swiss Federal Constitution (Bundesverfassung [BV]) guarantees access to the courts in two articles. Article 29a BV, adopted by popular vote (Referendum) on 12 March 2000, bestows on individuals the right to have their case in a legal dispute determined by a judicial authority. The older Art. 30 para. 1 BV specifies that any person whose case needs to be judicially decided has the right to have their case heard by a legally constituted, competent, independent and impartial court. It explicitly prohibits ad hoc courts. These articles extend to all kinds of legal disputes. They are broader than Art. 13 of the European Convention on Human Rights (ECHR) in the sense that judicial protection must be provided by a court.
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Notes
- 1.
Art. 29a BV—Guarantee of access to the courts: In a legal dispute, every person has the right to have their case determined by a judicial authority. The Confederation and the Cantons may by law preclude the determination by the courts of certain exceptional categories of case.
- 2.
Art. 30 BV—Judicial proceedings: 1. Any person whose case falls to be judicially decided has the right to have their case heard by a legally constituted, competent, independent and impartial court. Ad hoc courts are prohibited.
- 3.
Meyer (2020a), para. 253, 261, 263.
- 4.
Art. 2 IMAC—Foreign proceedings: A request for cooperation in criminal matters shall not be granted if there are reasons to believe that the foreign proceedings a. do not meet the procedural requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, or the International Covenant on Civil and Political Rights of 16 December 1966; b. are being conducted so as to prosecute or punish a person on account of his political opinions, his belonging to a certain social group, his race, religion, or nationality; c. could result in aggravating the situation of the defendant for any of the reasons mentioned under letter b; or d. have other serious defects; Federal Office of Justice (2009), pp. 17–18.
- 5.
Meyer (2020a), para. 248.
- 6.
It is a much more complicated question whether all individuals and entities affected by MLA measures are actually entitled to appeal these rulings.
- 7.
Strikingly, arrest warrants for the purpose of extradition are issued by an administrative agency. While the requested person must be presented before a district court following his arrest, the power to order deprivations of liberty during this phase rests with the BJ.
- 8.
Coercive measures require authorisation by a special court (Zwangsmassnahmegericht/compulsory measures court [official translation]) which issues search or surveillance warrant upon request by law enforcement agencies.
- 9.
A notable difference is that Switzerland follows the Vollstreckungsmodell (execution model) instead of the Umwandlungsmodell (transformation model).
- 10.
By virtue of Art. 25 para. 1 IMAC first instance rulings by cantonal and federal authorities are subject to an appeal directly to the Appeals Chamber of the Federal Criminal Court unless the IMAC stipulates otherwise.
- 11.
By virtue of Art. 80h IMAC any person who is personally and directly affected by a mutual assistance measure and has a legitimate interest in that measure being annulled or modified (lit. b) is entitled to exercise this right to appeal.
- 12.
Art. 52 IMAC contains a specific guarantee of the right to be heard in the extradition process. In the area of mutual assistance notification requirements are not very expansive; for instance, persons living abroad will be notified only if they have nominated a domestic recipient or receive word from their domestic bank or wealth manager in cases of seizures of financial information. Overall, many persons whose privacy or property rights might be affected must not be informed under federal law which raises concerns with respect to the ECHR-compliance of the present system.
- 13.
The decision to invoke the fundamental interests-clause rests with the Federal Department of Justice and Police, which highlights the political high-level nature of this limitation, Art. 17 para. 1 cl. 1 IMAC.
- 14.
See Meyer (2020a), para. 286.
- 15.
This would apply to prison conditions or fair trial standards unless the requested person corroborates his assertions convincingly.
- 16.
States with mature democratic traditions, which do not give rise to human rights concerns, states, for which violations cannot be excluded, but are presumed to provide sufficient guarantees and protections against violations as state parties to the ECHR, and states with increased risk of torture and mistreatment, which generally exclude cooperation.
- 17.
E.g. Art. 30 IMAC- Swiss requests: 1. Swiss authorities may not address to another state requests which they themselves could not grant under this Act.
- 18.
Art. 25 IMAC - Appeal: (…) 2. An appeal against a Swiss request to another state is only admissible if that state is requested to assume responsibility for the criminal proceedings or the execution of a criminal judgment. In this case, only defendants who are habitually resident in Switzerland are entitled to appeal.
2bis. An appeal against a Swiss request for transferring responsibility for the execution of a criminal judgment in connection with a transfer under Article 101 paragraph 2 is admissible.
- 19.
Meyer (2020b), para. 873.
- 20.
Meyer (2020a), para. 303–305.
- 21.
For instance, witnesses enjoy a right to appeal but not third parties who are personally affected by the subject of the testimony or whose activities were revealed during questioning; this exclusion is a serious strain on the rights of actual and potential defendants. In the same vein, ultimate beneficial owners are not authorised to challenge the seizure and transfer of bank accounts.
These cases need to be distinguished from situations that involve the disclosure and transfer of protected data of third parties though courts have not established clear-cut bright-line rules in this regards. For instance, third parties could lodge appeals against MLA measures not addressing them personally if they have reason to fear that personal data, banking information, professional and business secrets that enjoy protection under federal and cantonal law could be revealed unlawfully. Legal entities might therefore be entitled to challenge the seizure and transfer of company documents or documents that contain company secrets even if those documents are not in the possession of the company or its legal representatives. Companies, which keep documents on behalf of third persons, are equally not entitled to challenge MLA measures in their own name. There is wealth of, sometimes quite obscure, case law on these matters.
- 22.
For instance, inability to perform contractual obligations, risk of bankruptcy, risk of losing business opportunities, loss of regulatory permits.
- 23.
Federal Supreme Court of Switzerland (Bundesgericht), BGer, decision of 22 March 2007 – 1A.335/2005, E. 1; Federal Criminal Court of Switzerland (Bundesstrafgericht), BStGer, decision of 29 April 2019 – RR.2018.250, E. 2.3.3.
- 24.
Compare BStGer, decision of 27 February 2019 – RR.2018.275, E. 6.4.; BStGer, decision of 14 December 2017 – RR.2017.243, E. 4.4.
- 25.
Art. 25 para. 4 IMAC contains a similar provision for all rulings in MLA matters.
- 26.
Art. 53 IMAC—Alibi evidence: 1. If the defendant claims to be able to prove that he was not at the scene of the offence when it was committed, the Federal Office shall make the necessary investigations. 2. Extradition shall be denied in clear cases. In other cases, the exculpatory evidence shall be submitted to the requesting state which shall be asked to declare within a short time whether it wishes to continue with its request.
- 27.
Reciprocity is another potential example; see Federal Office of Justice (2009), p. 26.
- 28.
See further Meyer (2020a), para. 298.
- 29.
For more case law see Bussmann (2015), Art. 80h IMAC para 45 et seq.
- 30.
See also Meyer (2020a), para. 259; Popp (2001), §12 para. 304 et seq., para. 339 et seq. Documents or information must not be used (Verwendungsverbot) in proceedings for crimes or purposes other than those originally authorised unless subsequent permission is given, Fiolka (2015b), Art. 67 IMAC para 19, 25: not even as starting point for investigations. Interestingly, in extradition matters, speciality protection constitutes a bar of trial (Verfahrenshindernis), BGE 117 IV 222 (223 et seq.); Fiolka (2015a), Art. 39 IMAC para. 33. The subsequent extension of the original granting decision is, therefore, treated as an indispensable precondition to proceed (Prozessvoraussetzung).
- 31.
Art. 140 StPO—Prohibited methods of taking evidence: 1. The use of coercion, violence, threats, promises, deception and methods that may compromise the ability of the person concerned to think or decide freely are prohibited when taking evidence. 2 Such methods remain unlawful even if the person concerned consents to their use.
Art. 141 StPO—Admissibility of unlawfully obtained evidence: 1 Evidence obtained in violation of Article 140 is not admissible under any circumstances. The foregoing also applies where this Code declares evidence to be inadmissible. 2 Evidence that criminal justice authorities have obtained by criminal methods or by violating regulations on admissibility is inadmissible unless it is essential that it be admitted in order to secure a conviction for a serious offence. 3 Evidence that has been obtained in violation of administrative regulations is admissible. 4 Where evidence that is inadmissible under paragraph 2 has made it possible to obtain additional evidence, such evidence is not admissible if it would have been impossible to obtain had the previous evidence not been obtained. 5 Records relating to inadmissible evidence shall be removed from the case documents, held in safekeeping until a final judgment has concluded the proceedings, and then destroyed.
- 32.
- 33.
Because the granting decision only concerns the bilateral relationship between two sovereign states.
- 34.
Riedi (2018), pp. 132–138.
- 35.
Available online at: https://www.edoeb.admin.ch/edoeb/de/home/datenschutz/dokumentation/musterbriefe/-schengen%2D%2Dund-ihre-personendaten.html (23 January 2020).
- 36.
Also, Fedpol decisions of this kind do not fall under the exception clause in Art. 32 VGG, see BVerwG, decision of 21 June 2016, A-1736/2016, E. 1.
- 37.
See Art. 11b IMAC about the right to information on pending mutual assistance proceedings; for the restrictions of this right concerning extraditions requests see Art. 11c IMAC.
- 38.
See also the new Art. 11d IMAC about the right to have personal data collected or deleted for persons that are objects of a mutual assistance request.
- 39.
Husi-Stämpfli (2015), p. 196.
- 40.
- 41.
Procedural standards, nature of the offence, jurisdiction, ne bis in idem, dual criminality, speciality, reciprocity, good faith. Art. 2 lit. a IMAC requires that foreign proceedings ought to meet the procedural requirements of the ECHR and the ICCPR. Lit. b and lit. c exclude cooperation in case of discriminatory prosecution, punishment and treatment of defendants on account of his political opinions, his belonging to a certain social group, his race, religion, or nationality. Lit. d contains a so called ordre public-clause which in fact prohibits cooperation in any case of serious human rights violations or risks thereof. Art. 3 IMAC excludes cooperation for offences of a predominantly political or (with the exception of tax fraud) fiscal nature or offences that appear to be directed against the national security or military defence of the requesting state. Art. 5 IMAC bundles several situations in which the right to prosecute has lapsed or become extinct, namely ne bis in idem, statute of limitations, impossibility of enforcement. Art. 9 IMAC adds a protection of privacy by reference to legal privileges recognised in criminal procedure.
- 42.
Non-refoulement, risk of death penalty (Art. 37 para. 3 IMAC); application of foreign law, presence of foreign authorities, rules facilitating rehabilitation.
- 43.
Chances of success are slim; compare BStGer, decision of 15 July 2016 – RR.2016.42, E. 5; BStGer, decision of 22 July 2016 – RR.2016.45, E. 7.2; see exceptionally BStGer, decision of 17 July 2018 – RR.2017.338, E. 3.9.
- 44.
Lit. a orders that foreign proceedings ought to meet the procedural requirements of the ECHR and the ICCPR. Lit. b and lit. c address discriminatory prosecution, punishment and treatment of defendants on account of his political opinions, his belonging to a certain social group, his race, religion, or nationality. Lit. d contains a general clause which is often cited as ordre public-caveat but goes further than that. It is interpreted and applied as a placeholder for all other human rights standards not specifically addressed in Art. 2; namely those that flow from the ECHR and the ICCPR.
- 45.
See BGE 123 II 511, E. 4a.
- 46.
Art. 26 Vienna Convention on the law of treaties.
- 47.
BGE 134 IV 146, E. 6.10.
- 48.
European Court of Human Rights (ECtHR), judgment of 17 January 2012, Application no. 8139/09 (Othman [Abu Qatada] v. The United Kingdom), para. 183 et seq.
- 49.
This means that the assurance must be binding not only for the state as an international legal subject but also for the domestic institutions that pose the risk or that are in charge of containing and remedying that risk.
- 50.
BStGer, decision of 23 November 2011 – RR.2011.260, E. 3.3.
- 51.
BGE 134 IV 156, E. 6.3.
- 52.
BGE 134 IV 156, E. 6.8.
- 53.
Zimmermann (2019), para. 314.
- 54.
See for instance guarantees concerning unimpeded access to and communication with the defender or the right of Swiss diplomats to visit detainees (without surveillance) and attend court hearings, BGE 134 IV 156, E. 6.14, 6.3; BGE 133 IV, 76 E. 4.5; BGE 122 II 373, E. 2d; see also Schaffner (2013), p. 177.
- 55.
Schaffner and Kühler (2015), Art. 80p IMAC para. 42.
- 56.
Kiener et al. (2018), § 8 para. 1, based on Art. 29a BV, Art. 13 and 6 para 1 ECHR.
- 57.
Ibid. at § 8 para. 7; art. 82 et seq. and 113 et seq. BGG; see also for instance BGer, decision of 21 March 2016 – 6B_456/2015, E. 2.4.5 (prison conditions).
- 58.
BGer, decision of 20 July 2004, 1a_149/2004, E. 4.3; also Garré (2015), Art. 37 IMAC para. 13, who assumes that the current practice is effective.
- 59.
That is, whether the BJ correctly determined that the assurance was sufficient or not; Schaffner and Kühler (2015), Art. 80p IMAC para. 67.
- 60.
Because of the focus on the final rulings, persons whose privacy rights might be impinged during the execution phase will often not be informed about the measure at the time when it would be most pertinent to protect their rights.
- 61.
E.g. ECtHR, judgment of 07 July 2015, Application no. 28005/12 (M.N. and Others v. San Marino).
- 62.
BGE 106 lb 405, E. 8; BGE 90 IV 121, E. D.1.; Riedi (2018), p. 138.
- 63.
BGE 133 I 234_25, E. 26 points out obiter dictum that the maxime ex iniuria ius non oritur is of highest significance in every criminal proceeding. Ziegler and Bergmann (2008), p. 50 (53 f.) interpret this vague statement as an indication for a procedural bar of trial (Haft- und Prozesshindernis). Swiss courts may not investigate and convict lawfully when the trial originated in a serious violation of international law.
- 64.
However, the newly proposed Art. 80dbis IMAC commands in para. 4 lit. c that the requesting agency must oblige itself to remove evidence and information from its case file if the request is denied ultimately.
- 65.
BGE 134 IV 156.
- 66.
BGE 129 II 274 et seq.
References
Bussmann A (2015) Art. 80h IMAC. In: Niggli M A, Heimgartner S (eds) Basler Kommentar, Internationales Strafrecht. Helbing Lichtenhahn, Basel
Fabbri A (2013) Geheime Beweiserhebung in der Schweiz im Rahmen der internationalen Strafrechtskooperation: 39–66. In: Breitenmoser S, Gless S, Lagodny O (eds) Rechtsschutz bei Schengen und Dublin. Dike, Zurich
Federal Office of Justice (2009) International Mutual Assistance in Criminal Matters, Guidelines, 9th edn. 2009 (Case law as of May 2010), Bern, available online at: https://www.rhf.admin.ch/dam/data/rhf/strafrecht/wegleitungen/wegleitung-strafsachen-e.pdf (23 January 2020)
Fiolka G (2015a) Art. 39 IMAC. In: Niggli M A, Heimgartner S (eds) Basler Kommentar, Internationales Strafrecht. Helbing Lichtenhahn, Basel
Fiolka G (2015b) Art. 67 IMAC. In: Niggli M A, Heimgartner S (eds) Basler Kommentar, Internationales Strafrecht. Helbing Lichtenhahn, Basel
Frei L (2018) Grundlagen und Grenzen der Observation. Schulthess, Zurich
Garré R (2015) Art. 37 IMAC. In: Niggli M A, Heimgartner S (eds) Basler Kommentar, Internationales Strafrecht. Helbing Lichtenhahn, Basel
Heimgartner S (2015) Art. 30 IMAC. In: Niggli M A, Heimgartner S (eds) Basler Kommentar, Internationales Strafrecht. Helbing Lichtenhahn, Basel
Husi-Stämpfli S (2015) Was lange währt, wird endlich gut? Das Schengener Informationssystem der zweiten Generation: 185–206. In: Breitenmoser S, Gless S, Lagodny O (eds) Schengen und Dublin in der Praxis. Dike and Nomos, Zurich/St. Gallen
Kiener R, Kälin W, Wyttenbach J (2018) Grundrechte, 3rd edn. Stämpfli, Bern
Meyer F (2020a) Besonderheiten Schweiz, 1. Hauptteil Grundlagen. In: Ambos K, König S, Rackow P (eds) Rechtshilferecht in Strafsachen, 2nd edn. Nomos, Baden-Baden
Meyer F (2020b) Besonderheiten Schweiz, 4. Hauptteil Sonstige Rechtshilfe. In: Ambos K, König S, Rackow P (eds) Rechtshilferecht in Strafsachen, 2nd edn. Nomos, Baden-Baden
Popp P (2001) Grundzüge der Internationalen Rechtshilfe in Strafsachen. Helbing & Lichtenhahn, Basel
Riedi C (2018) Auslandsbeweise und ihre Verwertung im schweizerischen Strafverfahren. Schulthess, Zurich
Schaffner D (2013) Das Individuum im internationalen Rechtshilferecht in Strafsachen. Helbing Lichtenhahn, Basel
Schaffner D, Kühler A (2015) Art. 80p IMAC. In: Niggli M A, Heimgartner S (eds) Basler Kommentar. Helbing Lichtenhahn, Basel
Ziegler A R, Bergmann C (2008) forumpoenale 1:50–54
Zimmermann R (2019) La coopération judiciaire internationale en matière pénale, 5th edn. Stämpfli, Bern
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Meyer, F. (2021). Country Report “Switzerland”. In: Böse, M., Bröcker, M., Schneider, A. (eds) Judicial Protection in Transnational Criminal Proceedings. Legal Studies in International, European and Comparative Criminal Law, vol 5. Springer, Cham. https://doi.org/10.1007/978-3-030-55796-6_9
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