Federal Office of Justice
Extradition
Extradition
Extradition means the surrender by force of a wanted person by the requested state to the requesting state. The purpose of an extradition is
- Prosecution
Example: The investigating authorities make inquiries about a person suspected of committing several white-collar crimes. The person concerned does not appear for a hearing, so they are put on the wanted list at home and abroad. If this person is arrested abroad, their extradition may be requested with a view to concluding prosecution and to bringing them to court for trial. - or the execution of a custodial sentence.
Example: A drug dealer, convicted and sentenced to several years in prison, does not return from leave. He is then put on the wanted list at home and abroad. If arrested abroad, extradition may be requested in order that the drug dealer can serve the remainder of his prison sentence.
Extradition should be distinguished from expulsion and deportation:
- Expulsion is the strictest measure that can be ordered by the immigration authorities against a foreigner, and means that they are no longer permitted to remain on Swiss territory. The person concerned is expelled in the interests of the security of the country in which they were staying. Their expulsion is ordered without a request by a third state.
- If a foreigner whose expulsion has been ordered does not comply with his duty to leave the country, he may be deported; i.e. the police will organise and supervise the ordered departure from Switzerland.
2. Extradition Proceedings in Switzerland
Search and arrest
An extradition case in Switzerland generally begins with a request from another state for a wanted person to be located. This request will take the form of a notice in the Schengen Information System (SIS), or be sent via a national Interpol bureau or a ministry of justice. The Federal Office of Justice (FOJ, Extradition Unit) then examines whether or not the request contains all the necessary information and extradition is actually possible in the case in question. If the individual's abode in Switzerland is known, the FOJ will order the competent police force directly to arrest the wanted person. If their abode is not known, the FOJ will have the person entered in the RIPOL automatic search system for arrest (unless the person concerned is already entered in the SIS).
When the wanted person is arrested, the cantonal authorities will seize evidence and goods acquired as a result of the offence, and will also inform the FOJ immediately that the arrest has taken place. The cantonal authorities will give the detainee a legal hearing to respond to the foreign country's request, and will inform them of their right to contact the representatives of their home country in Switzerland, as well as to appoint a lawyer of their choice.
Simplified proceedings apply if the wanted person declares at the hearing that they agree to be extradited immediately. Provided the wanted person gives their consent, the FOJ may approve the extradition immediately and arrange for its execution. If all goes smoothly, a simplified extradition may be completed within hours.
Regular extradition procedure
If the wanted person opposes their extradition, the FOJ will issue an extradition warrant. At the same time, it will also invite the requesting state to submit a formal extradition request. As a rule, the requesting state must submit the formal extradition request to the FOJ within 18 days. This time limit may be extended up to 40 days. If the formal extradition request is received by the FOJ in due time, the wanted person remains in detention pending extradition until the corresponding proceedings have been concluded. Otherwise, the detainee is released.
The cantonal authorities dealing with the wanted person will issue an extradition warrant on behalf of the FOJ and give the person concerned a legal hearing to respond to the extradition request. The wanted person may appeal against the extradition warrant to the Federal Criminal Court, and appeal against its decision in turn to the Federal Supreme Court. They may also make a petition for release from custody at any time.
Based on this hearing and any statement made by the wanted person's lawyer, the FOJ may take an extradition decision in its capacity as a court of first instance. The FOJ will examine whether or not the formal and material conditions for extradition are fulfilled. Specifically, it will clarify whether the offence that the request alleges has been committed would also be punishable under Swiss law. Questions of guilt and facts are not examined as part of extradition proceedings, i.e. the FOJ does not examine whether or not the wanted person actually committed the offence.
The wanted person may lodge an appeal with the Federal Criminal Court within 30 days of the extradition decision being served. The Federal Criminal Court will rule on the appeal after the FOJ has stated its position. In particularly important cases, an appeal against the decision of the Federal Criminal Court may be lodged with the Federal Supreme Court.
Execution
The FOJ will order the extradition to be carried out if the extradition decision has become legally enforceable or if the wanted person has not given notice of an appeal against the decision within five days of it being served. In the case of neighbouring countries, the wanted person will generally be handed over at the border. Extraditions to other countries will take place by air. Evidence or goods acquired as the result of an offence may be handed over at the same time.
Especially in complex cases of white-collar crime and when all possible appeals are used, regular proceedings may take up to a year or more.
The FOJ will submit Swiss search requests to other countries upon application by cantonal or federal prosecution or enforcement authorities. These requests will take the form of a notice in the SIS, or be submitted via Interpol or direct to the competent ministry of justice.
If the wanted person is arrested, the formal extradition request must be submitted to the requested state within the prescribed time. These time periods generally vary between 18 and 40 days. The FOJ makes the Swiss request upon application by that authority that is responsible for the content of the request. In drawing up the request, it acts in an advisory capacity and may also function as an intermediary with foreign authorities.
The extradition request consists of: the FOJ’s letter to the foreign ministry of justice, the Swiss arrest warrant or the legally valid and enforceable judgement, a presentation of the facts of the case and the applicable provisions under Swiss penal law. Depending on the country concerned, the request may have to be submitted via diplomatic channels. Many common law (Anglo-Saxon) countries also request, in the case of individuals who have not yet been found guilty, a file of evidence, containing witness statements and other evidence that gives good grounds to find the wanted person guilty.
Extradition proceedings abroad are governed by the law of the state in question. Major differences exist in this regard: while extradition proceedings in some states are handled from start to finish by a court, in other states the responsibility is held jointly by the courts and the political/administrative authorities.
Swiss extradition proceedings are governed by the Federal Act on International Mutual Assistance in Criminal Matters (IMAA, SR 351.1). Switzerland has concluded bilateral or multilateral extradition treaties with most European and many non-European States. The IMAA also allows extradition without a treaty obligation, however.
Old extradition treaties contain a list of offences for which provision for extradition is made. More modern treaties, however, such as the European Convention on Extradition, provide for extradition if the alleged offence is punishable by a custodial sentence of a certain minimum duration (one year), or if a sentence of a certain minimum duration (four months) has been imposed.
To qualify as extraditable, the actions of the perpetrator must be punishable in both states (principle of dual criminality). However, the offence does not have to be defined in the same terms in both states: for example, what is classified as theft abroad may be regarded under Swiss law as embezzlement.
Under the principle of speciality, the extradited person may be prosecuted, held in custody or extradited on to a third state only for those criminal offices that were committed prior to their extradition and on the basis of which the extradition was approved. Once extradition has taken place, the requested state may nonetheless approve further prosecution on the basis of a subsequent application. Many states also permit the wanted person to waive the principle of speciality.
If the same person is pursued by several states, extradition may be granted to all of them, provided that the requirements are fulfilled. The extradition treaties do not lay down any clear rules on priority. The requested state must take into account the seriousness of the offence(s), where the offence(s) was(were) committed, the dates of the extradition requests and the possibility of onward extradition. The offender’s native country is last if it does not extradite its own nationals.
Switzerland does not grant extradition for political offences, such as membership of an illegal party. Genocide, the hijacking of aircraft or the taking of hostages are not considered as political offences. Extradition is also refused if proceedings abroad contradict the principles of the European Convention on Human Rights, or if they are carried out to prosecute or punish a person on account of their political opinion, their membership of a certain social group or nationality, their race or religion. Although the possibility of political persecution is examined in extradition proceedings, the asylum authorities must decide on any application for asylum in separate proceedings.
Purely military offences are also excluded from extradition. Military offences are, for example, insubordination or desertion. An ordinary criminal offence (such as rape) committed by a member of the armed forces is not considered a military offence.
As a general rule, extradition is also refused for fiscal offences which were committed with the aim of paying lower taxes or custom duties. Subsidy fraud, where illegal payments are obtained from the state by false pretences, for example, is not considered as a fiscal offence. The terms of cooperation under the Schengen Agreement provide for extradition owing to offences in the realm of consumer taxes, value-added tax and customs duties. However, it is permitted only if the offence on which the request is based is subject to a custodial sentence of at least twelve months.
Like most European states, Switzerland reserves the right to refuse to extradite its own nationals.
As a rule, criminal proceedings that are already pending in the requested state for the same offence take precedence over extradition. Furthermore, an existing conviction for the same offence in the requested state rules out extradition, in accordance with the "non bis in idem" principle. Extradition will be granted in the case of prosecution or sentence execution relating to offences for which the statute of limitations has already expired only if corresponding provision is made in the treaty between the two countries concerned.
Last modification: 22.03.2010