Extradition in Switzerland
Legal Framework for Extradition
General remarks
In Switzerland, extradition proceedings are governed by multilateral and bilateral treaties as well as by domestic law. International treaties take precedence over domestic law, whilst the latter applies both in cases where no treaty is applicable and when an applicable treaty needs to be supplemented.
Pursuant to Art. 25 para. 1 of the Federal Constitution of the Swiss Confederation1, Swiss citizens may only be extradited to a foreign authority with their consent. Should they withhold consent, they may be subject to prosecution in Switzerland for the offence(s) committed abroad (cf. Art. 6 para. 1 lit. b of the Swiss Criminal Code2 [SCC]). However, this privilege does not extend to foreign citizens.
Domestic law
The Federal Act on International Mutual Assistance in Criminal Matters of 20 March 19813 (IMAC) regulates international cooperation in criminal matters. It is subsidiary, i.e. it only applies when there are no applicable international treaties, or if the latter do not provide for certain aspects of extradition. Further, the IMAC is divided into general rules that are applicable to all measures of international cooperation (Art. 1-31 IMAC) as well as specific rules for extradition (Art. 32-62 IMAC).
In Swiss law, ordinances are issued to supplement or clarify certain national laws, as it is the case for IMAC with the Ordinance on International Mutual Assistance in Criminal Matters of 24 February 19824 (OIMAC), which supplements the IMAC.
International treaties and conventions
Switzerland is committed to respecting its international obligations in accordance with the principle of pacta sunt servanda5. This includes European conventions on extradition and judicial assistance, as well as conventions adopted under the Schengen Agreement and United Nations conventions.
The European Convention on Extradition of 13 December 19576 (ECE) obliges the contracting parties under its Art. 1 to mutually extradite persons prosecuted under criminal law or wanted for the execution of a sentence. However, contracting parties may refuse to extradite their own citizens (cf. Art. 6 sec. 1 ECE).
Additionally, there are various international conventions which include provisions on extradition, such as the United Nations Convention against Transnational Organized Crime of 20007 and the United Nations Convention against Corruption of 20038. Furthermore, Switzerland has concluded bilateral extradition treaties with several countries, including the USA9, UK10, Australia11, Canada12, and Brazil13, which establish specific conditions and procedures for extradition between the contracting states.
Conditions for extradition
General rules of international cooperation
In Switzerland, cooperation for criminal matters is subject to stringent conditions to ensure fairness and adherence to human rights. A request for cooperation will be denied if there are reasons to believe that the foreign proceedings do not meet the procedural requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 195014, or the International Covenant on Civil and Political Rights of 16 December 196615. It is also refused if the proceedings appear discriminatory or politically motivated, if they might worsen the defendant's situation for such reasons, or if there are other significant procedural defects (Art. 2 IMAC).
Cooperation is also contingent on the nature of the offence. Switzerland will not grant a request if the act in question is deemed predominantly political, related to military service obligations, or directed against the national security or military defence of the requesting state (Art. 3 para. 1 IMAC).
However, claims of political nature carry no weight in cases of genocide, crimes against humanity, war crimes, or acts involving extortion or duress that threaten lives, such as aircraft hijackings, use of mass extermination, causing catastrophes, or hostage-taking (Art. 3 para. 2 IMAC).
Furthermore, offences aimed at evading fiscal duties or taxes or breaching regulations on currency, trade or economic regulations typically do not warrant extradition. Exceptions exist for mutual assistance in cases of duty or tax fraud, or if the proceedings involve aggravated duty or tax fraud (Art. 3 para. 3 IMAC).
Cooperation shall also be denied in case of extinction of the right to prosecute. This is the case when the defendant has been acquitted or the case dismissed for material reasons in Switzerland or the state where the offence occurred. Similar limitations apply when the sentence has already been carried out, cannot be enforced, or when the statute of limitations under Swiss law has expired (Art. 5 para. 1 lit. c IMAC). Nonetheless, these limitations with exception of the statute of limitations do not apply if the requesting state presents valid grounds for a review of the case (Art. 5 para. 2 IMAC).
If an offence falls under multiple Swiss laws, cooperation is limited to those offences for which there are no reasons for inadmissibility and where there is a guarantee that the Requesting state will comply with the conditions set (Art. 6 para. 1 IMAC).
Swiss nationals cannot be extradited or surrendered without their written consent, which remains revocable until surrender (Art. 7 para. 1 IMAC). This doesn't apply to transit or return of a Swiss national who is temporarily surrendered by a third state to the Swiss authorities (Art. 7 para. 2 IMAC).
As a rule, a request in extradition shall be granted only if the requesting state guarantees reciprocity (Art. 8 para. 1 IMAC).
Specific extradition rules (Art. 32-40 IMAC)
Foreign nationals may be surrendered to another state for prosecution or enforcement of a sentence involving deprivation of liberty for acts which come under its criminal jurisdiction (Art. 32 IMAC).
Extradition is permissible when the supporting documents of the request demonstrate that the offence in question meets two key criteria:
- it must be punishable by a maximum penalty of at least one year's deprivation of liberty or a more severe sentence, according to both Swiss law and the law of the requesting state; and
- the offence must fall outside the scope of Swiss jurisdiction (cf. Art. 35 para. 1 IMAC).
When assessing whether an act constitutes an offence under Swiss law, certain elements are deliberately excluded from consideration. These include the specific degrees of guilt and the conditions required for establishing criminal liability (Art. 35 par. 2 lit. a IMAC). Additionally, the temporal and personal scope of application of the Swiss Criminal Code and the Swiss Military Criminal Code – as they pertain to the criminal provisions on genocide, crimes against humanity, and war crimes – are not taken into account (Art. 35 par. 2 lit. b IMAC).
Extradition is conditional upon the requesting state:
- not pursuing, sentencing or re-extraditing the individual to a third state for offences committed prior to his extradition and for which extradition was not granted;
- not detaining the individual for other pre-existing reasons;
- not bringing the individual before an extraordinary court; and
- providing a certified copy of the final decision to the Swiss authorities (Art. 38 para. 1 IMAC).
These conditions lapse if the defendant waives them or does not leave the requesting state within 45 days of release or if the defendant returns after leaving. If new charges arise post-extradition, the extraditing state may request to prosecute these additional offences (Art. 39 IMAC).
When multiple states seek extradition for the same or different offences, decisions are based on factors like the offence's gravity, place of commission, chronological order of the request, the defendant's nationality, prospects for rehabilitation, and the possibility of extradition to another state (Art. 40 para. 2 IMAC).
Extradition proceedings
Ordinary proceedings
In most cases, extradition proceedings start with a request from another state for a wanted person to be located, following which the wanted person will be taken into custody. The detainee is entitled to a legal hearing during which he can respond to the foreign country's search request. Should the defendant assert during the hearing that he is being accused of a political offence, or if substantial grounds arise indicating the political nature of the alleged offence, the Federal Office of Justice (FOJ) will forward the case files to the Federal Criminal Court (FCC). The FCC then decides on the political nature of the allegations.
If the individual opposes their extradition from Switzerland, the FOJ generally issues an extradition warrant and asks the requesting state to provide a formal request. This formal request must be submitted within 18 days, although an extension up to 40 days is possible. If the formal request is made within this deadline, Switzerland is obliged by international treaties to keep the individual detained until the end of the extradition process whereas failure to receive the request in due time results in the individual's immediate release. However, as with remand, the detainee can submit a request for release at any time.
The FOJ intially decides on the extradition. It assesses whether the formal and substantive conditions for extradition are met and particularly determines whether the alleged offence in the request is punishable under Swiss law. However, the FOJ does not investigate whether the defendant actually committed the offence, and therefore, does not decide on a person’s guilt.
The individual can appeal the FOJ's decision to the FCC within 30 days. In significant cases, such as those indicating major procedural irregularites in the requesting state, an appeal against the decision of the FCC can be made to the Federal Supreme Court (FSC). Once the decision becomes legally binding, the FOJ proceeds with the execution of the extradition. This whole procedure can take more than a year, especially in complex cases and when all legal remedies are exhausted.
Simplified proceedings
Simplified proceedings apply when the defendant does not oppose extradition but instead agrees to it. However, until the FOJ has ordered the defendant’s surrender, the defendant may still revoke their consent (cf. Art. 54 para. 2 IMAC). If this occurs, ordinary proceedings will be initiated instead.
If the defendant does not withdraw their consent, the FOJ may approve the extradition immediately and proceed with its execution, unless there are special considerations against the defendant’s extradition. In other words, the FOJ is required to verify that all conditions for extradition are met, regardless of the defendant’s consent. Should the FOJ determine that there are grounds of inadmissibility or other reasons that compel Switzerland to refuse the request, immediate extradition of the defendant cannot be executed. However, if the FOJ approves the extradition, an extradition request is no longer necessary, and the procedure may be completed within just a few days.
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Other Key Aspects of Swiss Extradition Law
Hearings (Art. 52 IMAC)
Upon receipt of the extradition request and the accompanying documents, these shall be duly submitted to the defendant and his legal adviser. During the formal presentation of the arrest warrant for the purpose of extradition, the cantonal authority must verify the identity of the defendant, ensuring he is indeed the individual named in the request. The authority is obliged to elucidate the conditions governing both ordinary and simplified extradition, and to inform the defendant of his rights, including the right to appeal, to appoint a legal adviser, or to request the official appointment of one.
Subsequently, the defendant shall undergo a brief interrogation regarding to his personal circumstances, with particular attention to his nationality and any connections with the requesting state. He shall be asked whether he contests the arrest warrant or his extradition, and on what grounds. Throughout this process, his legal adviser is permitted to provide assistance.
In instances where the extradited individual is subject to prosecution for additional offences or is to be re-extradited to a third state, the FOJ shall facilitate a recorded interrogation by a judicial authority from the requesting state, adhering to the procedures outlined in the preceding paragraph.
Detention
In the field of extradition, the FOJ has the authority to issue arrest warrants. This power is exercised judiciously, particularly when the defendant poses no flight risk or threat to the investigation, or can promptly establish an alibi. When detention is not appropriate, the FOJ may implement alternative measures to ensure the defendant's presence (Art. 47 para. 2 IMAC).
The FOJ may also order an arrest for extradition via telex or telephone; however, this measure must be immediately confirmed with a written arrest warrant, which is then notified to the pursued individual (Art. 19 OIMAC).
Detention typically adheres to cantonal regulations, yet the FOJ retains the prerogative to mandate alternative arrangements in collaboration with the cantons when circumstances demand it. Any relaxation of detention conditions requires the FOJ's prior approval, ensuring a balance between procedural necessity and individual rights (Art. 20 para. 1 OIMAC).
Rulings must detail the defendant's identity, the alleged offence, and the requesting authority confirming extradition will be requested. Defendants are informed of their rights, including the right to appeal, which can be pursued before the Appeals Chamber of the Federal Criminal Court within ten days (Art. 48 IMAC).
The execution of these rulings is entrusted to cantonal authorities. Importantly, an arrest warrant cannot be executed if the defendant is already detained for trial or serving a sentence, and any release or deportation necessitates the FOJ's explicit consent (Art. 49 IMAC). The FOJ, in agreement with the canton, also designates the authority responsible for monitoring the detainee's correspondence, ensuring oversight and compliance with legal standards (Art. 20 para. 2 OIMAC).
In terms of detention, the FOJ must order the release of individuals 18 days post-arrest if the extradition request and supporting documents have not been received. However, this period may be extended under special circumstances (Art. 50 para. 1 IMAC). Defendants maintain the right to petition for release at any time, allowing for procedural flexibility. This framework applies equally when extradition detention is ordered in conjunction with remand or punitive detention (Art. 20 para. 3 OIMAC).
Should the extradition request be received timely and not be evidently inadmissible, detention continues throughout the proceedings. However, if the defendant has been released, detention with a view to extradition may be reinstated if necessary (Art. 51 IMAC).
Statute of Limitations
As a general rule, a request will not be granted pursuant to Art. 5 para. 1 lit. c IMAC if its execution requires compulsory measures and the prosecution or execution of the sentence was absolutely time barred under Swiss law. However, deviating international treaties remain reserved, as the IMAC only applies subsidiarily (cf. Art. 1 para. 1 IMAC). The same rule applies if an international treaty provides that the statute of limitations under Swiss law precludes extradition. However, if an international treaty does not contain any provisions regarding the statute of limitations, a qualified silence must be assumed and the statute of limitations under Swiss law will not prevent extradition.
Conclusion
Switzerland's extradition framework exemplifies a meticulous approach to international cooperation in criminal matters, balancing its domestic legal principles with its international obligations. Governed by a combination of multilateral treaties, bilateral agreements, and domestic laws, Switzerland's extradition process is designed to ensure fairness, uphold human rights, and maintain legal integrity.
The Swiss system is characterised by its adherence to stringent conditions for extradition, reflecting a commitment to procedural fairness and the protection of individual rights. The interplay between domestic laws, such as the IMAC, and international treaties ensures that extradition requests are thoroughly scrutinised, with particular attention to human rights considerations and the nature of the alleged offences.
Switzerland's refusal to extradite its nationals without consent, alongside its rigorous assessment of extradition requests, underscores the nation's dedication to sovereignty and legal due process. Moreover, its commitment to international conventions and its respect for the principle of pacta sunt servanda highlight Switzerland’s role as a responsible global actor in the realm of extradition.
In conclusion, Switzerland's extradition laws reflect a sophisticated balance between international cooperation and domestic legal principles, fostering a legal environment that is both robust and equitable. As global challenges evolve, Switzerland's extradition framework will remain a critical component of its legal landscape, promoting justice and cooperation in an interconnected world.
