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

Helping to combat cross-border crime more efficiently


Greater mobility and new technologies are making crime more international. Often, evidence or suspects are to be found beyond the jurisdiction of the competent prosecuting authorities. This means that the success of 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. In circumstances like these, the prosecuting and enforcement authorities are also dependent on cooperation with other countries.

This is why the Federal Council has made expanding the state treaty framework for international mutual legal assistance in criminal matters a security policy priority. Stepping up cross-border cooperation on criminal law is one of the goals of Switzerland's legislative planning programme for both the 2007-2011 (Federal Gazette 2008, 753ff, esp. 794f) and 2011-2015 (Federal Gazette 2012, 481ff, esp. 561f) periods.

1. 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).

2. Reasons for drawing up a bilateral mutual assistance instrument

Under the Federal Act on International Mutual Assistance in Criminal Matters (Bundesgesetz über internationale Rechtshilfe in Strafsachen, IRSG), Switzerland may cooperate with other countries even in the absence of a treaty under international law. Nevertheless, it is often advisable to conclude a legal assistance treaty or a Memorandum of Understanding (MoU).

Some of the reasons for this include:

  • Other states may not be able to offer legal assistance without a treaty;
  • A bilateral solution being the only way to solve problems with legal assistance;
  • The large scale of the case in question or especially close ties make simplified legal assistance advisable;
  • National standards being harmonised or laid down more efficiently in multilateral treaties.

3. 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 requests from abroad submitted to Switzerland and makes its own drafts.

On the one hand, traditional state treaties can be concluded, providing a legally-binding framework for cooperation. But there are also other instruments under international law that may be used, such as an exchange of notes or correspondence, and political memoranda of understanding. These instruments are agreed at government level and do not need to be approved by the Swiss parliament. They are becoming an increasingly viable option, especially in relation to states 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.

The framework is being expanded around the globe. In an initial phase, Switzerland conducted negotiations with European countries. Later attention was turned to states with Anglo-American systems of law, and more recently to Latin America (e.g. the treaties recently concluded with Brazil, Argentina, Peru, Columbia and Ecuador), Asia (e.g. Hong Kong and the Philippines) and Africa (e.g. Egypt, Morocco and Algeria). A list of priorities has been drawn up to help determine which countries should be approached for negotiations in the future. In the coming years, emerging financial centres and economic powers, including those in the Asiatic regions and Arab world, will be given suitable attention.

In addition to expanding the bilateral treaty framework, the Unit is involved in drafting multilateral legal assistance instruments and offence-specific agreements that contain legal assistance provisions. Examples include treaties drawn up by the UN or the Council of Europe to combat terrorism, corruption, international organised crime and cybercrime. The Unit 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, and brings the Swiss perspective to the negotiating table.

The Unit's remit also extends to national 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. As the specialist service within the FDJP, it acts as an adviser in parliamentary discussions (preparing draft legislation and Federal Council dispatches to parliament. Examples of current legislative initiatives include amendments to the Federal Act on International Mutual Assistance in Criminal Matters. This is particularly relevant at present with regard to mutual assistance in fiscal matters. The Unit has also been involved in drafting the federal decree – and later the federal act – on cooperation with international courts on the prosecution of serious violations of international human rights, as well as the Federal Act on Cooperation with the International Criminal Court (Bundesgesetz über die Zusammenarbeit mit dem International Strafgerichtshof).

4. How does an international mutual assistance instrument come about?

4.1 Bilateral instruments

  • The initiative for negotiations on bilateral treaties, intergovernmental agreements, and MoUs comes from an individual state. Formal mandates are not usually issued where legal assistance is concerned. If the subject of negotiations has not yet been finalised, exploratory talks are first held which will also establish whether or not a treaty is possible at all or whether only an MoU is required at first. 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 other 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 foreign visit by a member of the Federal Council or a visit by a representative of the foreign government to Switzerland. 
  • Once the treaty has been signed, the signatory states begin 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 when the National Council and Council of States have approved the treaty can it be ratified through an exchange of instruments of ratification or notification that domestic approval procedures have been completed.

4.2. 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.

5. Current projects

Mutual legal assistance treaty with Japan

  • Exploratory talks

Mutual legal assistance instrument with China

  • Talks are being held at task force level with the aim of gaining knowledge and experience

Mutual legal assistance treaty with the Bahamas

  • Negotiations have been launched

Mutual legal assistance treaty with Kosovo

  • Exploratory talks

Mutual legal assistance treaty with Indonesia

  • Passed by the Federal Council on 14 September 2018
  • Treaty signed on 4 February 2019 (media release)
  • The agreement will come into force as soon as each country’s domestic legal requirements have been met. In Switzerland, Parliament must approve the agreement.

Transfer treaty with Brazil  

  • Passed by the Federal Council on 5 June 2015 (Medienmitteilung)
  • Treaty signed on 23 November 2015
  • Ratification by Brazil still pending

Protocol amending the Additional Protocol to the Convention on the Transfer of Sentenced Persons

  • Passed by the Federal Council on 11 October 2017
  • Treaty signed on 22 November 2017
  • Federal Council opinion (media release)

Extension of mutual legal assistance in the area of fiscal matters

  • Several legislative projects

 

Note

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

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