Expansion of the state treaty framework with regard to international mutual assistance in criminal matters

Greater mobility and new technologies are making crime more international. Often, evidence or suspects are not in the jurisdiction of the competent prosecuting authorities. This means that the success of any national investigations can be jeopardised if other states do not provide support. Mutual assistance between prosecuting authorities is therefore becoming increasingly important.

Furthermore, in many cases, it is not possible to hold criminal proceedings in a particular state or to enforce judicial decisions in the state in which the judgment was given. The prosecuting and enforcement authorities dealing with such circumstances are thus also dependent on cooperation with other countries.

Areas of international mutual assistance in criminal matters

International cooperation in criminal matters is divided into the following areas:

• Extradition
• Minor or accessory legal assistance
  (in particular with regard to interviewing witnesses or the accused, serving summonses or judgments, gathering evidence or handing over assets)
• Prosecution by one state, acting for another
• Enforcement of judicial decisions
  (including the deportation of convicted persons to their country of origin).

Reasons for drawing up a treaty

Under the terms of the Federal Act on International Mutual Assistance in Criminal Matters (Bundesgesetz über internationale Rechtshilfe in Strafsachen, IRSG), Switzerland can cooperate with other countries even in the absence of a treaty under international law. Legal assistance treaties must often be concluded nonetheless.

Some of the reasons for this include:

• States not being able to offer legal assistance without a treaty
• The only way to solve problems with legal assistance is a bilateral solution
• The large scale of legal assistance, or especially close ties, demand that legal assistance procedures be simplified
• National standards are to be harmonised or laid down more efficiently in multilateral treaties.

Tasks of the International Treaties Unit

The main task of the Unit is to expand Switzerland's treaty framework with regard to international mutual assistance in criminal matters. It examines the draft treaties submitted to Switzerland or draws up its own state treaty drafts.

The framework is being expanded around the globe. In addition to continental European countries, Switzerland is in negotiations with countries with Anglo-American systems of law (e.g. USA, Canada, Australia), and with countries from South America (e.g. Peru and Ecuador), Asia (e.g. Hong Kong and the Philippines) and Africa (e.g. Egypt and Morocco). A list of priorities has been drawn up to help determine which countries should be approached for negotiations in the future.

In addition to state treaties, there are other instruments under international law that can be used, such as an exchange of notes or correspondence, and political memoranda of understanding. These instruments are exercised at governmental level and do not need to be approved by the Swiss parliament. They are becoming an increasingly viable option, especially in relation to countries which are not yet ready to initiate formal treaty negotiations. They often constitute the preliminary stage of a state treaty and, as such, are a tangible expression of the desire to expand cooperation.

In addition to expanding the bilateral treaty framework, the Unit is involved in drawing up multilateral legal assistance instruments and case-specific agreements under criminal law that contain legal assistance provisions. It monitors all issues related to international legal assistance in criminal matters, especially those discussed within the Council of Europe, the European Union and the United Nations.

Yet the Unit's remit extends beyond treaties to legislative projects related to international mutual assistance in criminal matters. It handles these projects from their inception through to their adoption by the Swiss parliament. Examples of such time-intensive legislation include amendments to the Federal Act on International Mutual Assistance in Criminal Matters (Bundesgesetz über internationale Rechtshilfe in Strafsachen) or the drafting of the federal resolution on participation in international courts for the prosecution of grave violations of international human rights, as well as the Federal Law on Cooperation with the International Court of Justice (Bundesgesetz über die Zusammenarbeit mit dem International Strafgerichtshof).

Bilateral treaties

• The initiative for negotiations on a bilateral treaty comes from an individual state. If the Unit wishes to negotiate a treaty, it must first apply to the Head of Department for authorisation. Formal mandates are not usually issued where legal assistance is concerned. If the subject of negotiations has not yet been finalised, there will first be exploratory talks which will also establish whether or not a treaty is at all possible. Often the first step is for the state interested in negotiations to present a proposal as a basis for discussion, after informal contact with its target partner. In some cases, the second party will present a counter-proposal.
• The first round of negotiations discusses the proposal and counter-proposal, as well as any further proposals. Differences are rarely eliminated entirely in the first round, so further rounds of negotiation are required. These are held alternately in the two countries involved. Once the two parties have agreed on a joint treaty text, the leaders of the two delegations will generally initial each page of the treaty. It will be formally signed once the text has been approved by the government. In Switzerland, treaties also require the authorisation of the Federal Council. The treaty signing often takes place as part of an official visit by a member of the Federal Council or a representative of the foreign government.
• Once the treaty has been signed, the signatory states will institute the domestic approval procedure. This involves the text of the treaty being translated into all official languages and the drafting of an opinion that the Federal Council adopts and submits to the Swiss parliament. Only once the National Council and Council of States have approved the treaty can it be ratified through the exchange of instruments of ratification or notification that domestic approval procedures have been completed.

Multilateral treaties

Multilateral treaties are initiated by various international organisations, frequently by means of a resolution by the United Nations General Assembly or by a proposal to the Council of Europe. The draft treaty provided by the organisation itself or by one or more individual states is finalised in several rounds of negotiation. All states are entitled to submit proposals and outline their position. The final text of the treaty is generally adopted formally at a ministerial conference. Within the Council of Europe, this is the task of the Committee of Ministers, which meets twice a year. Once adopted, the treaty must pass through the signature, approval and ratification process.

For the complete documentation see the pages in German, French or Italian.