Taking evidence
Whereas borders do not create barriers for criminals, they do present obstacles to prosecuting authorities. A foreign judge may not, for example, order a bank in Switzerland to freeze a fraudster's account and hand over the relevant banking documents as evidence. Sovereignty precludes the carrying out of an official act in a foreign state. However, the instrument of international mutual assistance in criminal matters makes it possible for states to help and support each other in the fight against international crime. If a judge has to investigate a case abroad, he will ask the judicial authorities of the country concerned to handle the case on his behalf. The requested state will lend legal assistance by undertaking on its territory the official acts that have been requested, and by forwarding the findings to the requesting state in a specific criminal case. Specifically, mutual assistance comprises the interviewing of witnesses and suspects, securing and handing over of evidence and documents as well as objects and assets, the search of premises and seizure of property, identity parades and the service of summonses, judgements and other court documents.
Active legal assistance, a Swiss judge may pass on information or evidence which they have gathered during their own criminal investigations to a foreign prosecuting authority without being requested to do so. However, he may not pass on evidence which is private and confidential (banking documents, for example). That said, a Swiss judge may pass on even confidential information if it is of such a nature as to enable his foreign counterpart to make a request for mutual assistance to Switzerland.
There is a difference between the mutual assistance between judicial authorities and the exchange of information between police forces, as no coercive measures are applied in the latter case, and it is simply information that is supplied (for example, interview of informants by police, supplying extracts from public records and the criminal register, information about telephone subscribers, the holders of post office boxes, owners of vehicles, the identity of persons or enquiries regarding addresses).
2. Principles of Mutual Assistance
Mutual assistance is conditional upon criminal proceedings being in progress in the requesting state. Switzerland may grant direct legal assistance to any state on the basis of the Swiss Federal Act on International Mutual Assistance in Criminal Matters (IMAC). If Switzerland has not concluded a mutual assistance treaty with the requesting state, then the request will generally be granted only if the requesting state guarantees reciprocity.
Coercive measures may be ordered in the execution of a mutual assistance request (search of premises, seizure of evidence, summons to appear with a warning of arrest in the event of non-appearance, the interviewing of witnesses and the lifting of legal confidentiality obligations), if the offence described in the request is also punishable in Switzerland (principle of dual criminality). Swiss banking confidentiality regulations are not absolute. They do not afford a suspected criminal any protection in, for example, a case of corruption in which bank documents (account statements) are to be supplied to the requesting authority.
Mutual assistance will not be granted if the subject of the investigation or proceedings is an act which is regarded by Switzerland as a political offence. Under the IMAC, the term "political offence" does not cover any crime that might be regarded as genocide or as particularly reprehensible (aircraft hijacking, hostage taking). Neither will a request be granted if it concerns military offence (insubordination, desertion).
Legal assistance will also be refused if there are serious shortcomings in the foreign proceedings (violation of the European Convention on Human Rights or the International Covenant on Civil and Political Rights). It will also be denied if the proceedings abroad are carried out to prosecute or punish a person on account of their political opinions, their belonging to a certain social group, their race, religion or nationality.
Legal assistance is no longer possible for the same offence if the suspect has been acquitted or served a sentence in either Switzerland or in the state where the offence was committed (non bis in idem - the principle of double jeopardy).
As a rule, Switzerland can grant legal assistance for fiscal offences only if the case described in the request constitutes tax or duty fraud under Swiss law. No legal assistance can be given in cases involving tax evasion, however. In cases of doubt, the Federal Office of Justice will ask the Federal Tax Administration for advice. However, the terms of cooperation under the Schengen Agreement also provide for legal assistance owing to offences in the realm of consumer taxes, value-added tax and customs duties.
- Tax evasion is where a person does not reveal information in their tax return in order to avoid a tax assessment or to ensure that this is incomplete. In Switzerland, tax evasion is regarded as a misdemeanour and is punished by a fine.
- Tax fraud, meanwhile, refers to the provision of forged, falsified or untrue documents – such as business ledgers, balance sheets, profit and loss accounts and salary statements – in order to evade tax and deceive the tax authorities. Duty fraud refers to where a person fraudulently withholds a duty, fee or other payment to the public authority, or otherwise impairs its assets. Tax and duty fraud are regarded in Switzerland as crimes and are punished by imprisonment.
Mutual assistance is granted on the provision that the authorities of the requesting state will use the findings of investigations for further investigations or as evidence only in cases for which mutual assistance is admissible (principle of speciality). Also excluded is the indirect use of the results obtained through mutual assistance in the form of unofficial tip-offs from prosecuting authorities to tax or customs authorities.
Mutual assistance proceedings are governed by the principle of proportionality. However, this does not mean that a foreign state may seek assistance only after it has exhausted its own internal means of investigation. Mutual assistance proceedings are intended to assist criminal proceedings in the requesting state; therefore all documents are to be handed over if a connection with the charges that have been brought cannot be excluded.
Objects and assets that derive from a criminal offence (proceeds of crime) may be surrendered to foreign authorities so that they can be seized by a foreign court or handed over to the foreign authorities to be returned to their rightful owners. As a rule, a legally valid and enforceable ruling must have been made by a criminal, civil or administrative court in the requesting state. In exceptional cases, Switzerland may waive this requirement if the criminal source is obvious, as in the Abache case.
3. Mutual Assistance Procedure in Switzerland
There are a number of different channels for the transmission of mutual assistance requests to Switzerland:
- Member states of the European Convention on Mutual Assistance in Criminal Matters (ECMA) send their requests directly or via their corresponding ministry to the Federal Office of Justice (FOJ).
- If no treaty has been signed, then diplomatic channels are the rule. The representative of the foreign state in Switzerland sends the request directly to the FOJ.
- Direct contact between the foreign authority and the competent Swiss authority is provided for in the Second Additional Protocol to the ECMA, in the Convention implementing the Schengen Agreement, in the Additional Treaties to the ECMA for requests from Germany, Austria, France and Italy, and from other states in urgent cases.
Treaties to the ECMA for requests from Germany, Austria, France and Italy, and from other states in urgent cases.
If there is no provision for direct contact, Swiss authorities transmit their requests to the relevant foreign authority via the FOJ.
Form and Contents of Mutual Assistance Requests
Requests for mutual assistance must contain the following information:
- Name of the authority making the request
Requests are generally made by judicial authorities. In common-law countries, requests for mutual assistance are made by the police, as there is no system of examining magistrates (investigating judges), and the public prosecutor deals with a criminal case only after a charge has been brought. - The object of the foreign proceedings and the reason for the request
(description of the official acts requested) - Identifying data of the person who is the object of the criminal proceedings
- Legal evaluation of the facts in the requesting state
- Description of the essential facts (place, time and circumstances)
The requesting authority does not have to prove that its description is accurate. It must only present reasonable grounds for suspicion. The requesting authority may not be required to explain what precisely it wishes to establish via its request. "Fishing expeditions", however, are heavily frowned-upon. Evidence may not be collected at random and without material clues (for example the freezing of all assets in Switzerland and the handover of the banking documents without information on the whereabouts of these assets).
Handling of Mutual Assistance Requests
The FOJ (International Mutual Assistance unit) conducts a summary examination of whether or not the request for mutual assistance meets the applicable formal requirements. If not, the FOJ asks the requesting authority to rectify or amend the request. In urgent cases, the FOJ may order provisional action (such as the freezing of accounts or seizure of assets) as soon as notice of a request has been given. The FOJ then fixes a time limit within which the requesting state must submit the formal request.
If the request meets the requirements and if mutual assistance is not obviously inadmissible (in the case of military offences, for example), the FOJ will forward the request to the competent cantonal judicial authority for execution. If investigations are required in several cantons, the FOJ may appoint one of these cantons to take charge (the lead canton). In practice, most requests for mutual assistance are executed by the cantons. However, the FOJ may also delegate the execution of a request to the federal authority which would be competent had the offence been committed in Switzerland. Examples of such authorities include the Office of the Federal Public Prosecutor of Switzerland (in cases of acts of terrorism or corruption of federal officials) and the Federal Customs Administration (in cases of violation of the Federal Customs Act). If several cantons are involved, if the canton does not render a decision within the appropriate time, or if the case is complex or of particular importance, the FOJ itself may take charge of executing the request for mutual assistance.
The executing authority examines whether the substantive requirements to grant mutual assistance have been met and orders the mutual assistance measures that were requested and which are admissible in the form of a decree to enter into the case. This sets the mutual assistance proceedings in motion. They are generally followed through until their conclusion. Once all measures have been taken and the proceedings have been concluded, the execution authorities will issue their final ruling. This will contain a detailed, in-depth statement of the legality of mutual assistance in the case in question. It will also state the extent to which mutual assistance was provided, i.e. which documents or assets may be handed over to the requesting state. Mutual assistance proceedings may be executed in a simplified procedure without a final ruling if the holders of documents or assets consent in writing to their being handed over to the requesting state.
The parties involved in the foreign proceedings (police officers, examining magistrates, defendants, legal representatives) may be allowed to attend action taken in response to a request for mutual assistance, provided that the law of the requesting state would admit the evidence obtained by mutual assistance only if those persons were present (common-law practice) or if their presence would make successful criminal proceedings in the requesting country considerably more likely. Their presence simply means that the parties to the foreign proceedings may be present at the execution of the request. They are not allowed to officiate themselves, however; official acts are the sole prerogative of Swiss officials.
No appeal may be lodged against the decree to enter into the case. In principle, appeals may only be made against the final ruling. Appeals against any interim rulings may also be lodged only at the end of the proceedings, together with the appeal against the final ruling. Therefore, legal remedies are not available to the persons affected by mutual assistance measures until the end of the corresponding proceedings. An exception is made for those interim rulings which – because they involve the seizure of assets and valuables or the presence of foreign officials during execution – place the person concerned under an immediate and irreparable disadvantage, e.g. where a company has to close because a bank account has been frozen. The rulings of the authorities providing mutual assistance may be challenged before the Federal Criminal Court. Furthermore, an appeal against the decision of the Federal Criminal Court may be lodged with the Federal Supreme Court if that decision concerns the seizure or release of objects or assets or the transmission of confidential information, and the case in question is a particularly important one. Mutual assistance to the requesting state is granted as soon as the final ruling has become absolute.
The only parties entitled to lodge an appeal are the FOJ, in its capacity as the federal supervisory authority in matters of mutual assistance, and persons who are personally and directly affected by a mutual assistance measure. As such, a bank that was required to surrender account documents relating to a specific person has no right of appeal. Only the account holder has that right. The deadline for the appeal against the final ruling is 30 days (Federal Criminal Court) or 10 days (Federal Supreme Court).
Last modification: 22.03.2010