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.
The 2019–2023 Legislature Planning (BBl 2020 1777 ff. esp. 1857) set as its goal the effective combating of crime and terrorism. This includes expanding the state treaty framework for international mutual legal assistance in criminal matters, as provided for in the FDJP’s strategy regarding this.
1. Areas of international mutual assistance in criminal matters
International cooperation in criminal matters is divided into the following areas:
- 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 a 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, to Latin America, Asia and North Africa, and more recently to emerging financial centres and economic powers including in the Asian, Arab and African regions (e.g. Indonesia, Kenya and Qatar).
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 recently concluded legislative initiatives include amendments to the Federal Act on International Mutual Assistance in Criminal Matters within the framework of the terrorism package (dynamic mutual assistance; joint investigation teams) and on mutual assistance to international criminal justice institutions.
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 the Bahamas
- Negotiations have been launched
Mutual legal assistance treaty with Japan
- Exploratory talks
Mutual legal assistance treaty with Kosovo
- Negotiations closed
Mutual legal assistance treaty with Panama
- Exploratory talks
Mutual legal assistance treaty with Singapore
- Negotiations opened
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
Initiative to establish a multilateral mutual legal assistance instrument for the prosecution of genocide, crimes against humanity and war crimes (MLA Initiative)
- Preparatory conferences 2018, 2019
- Informal consultations since 2020
- Diplomatic conference planned for 2023
Protocol amending the Additional Protocol to the Convention on the Transfer of Sentenced Persons
- The protocol is not yet in force. Ratified by Switzerland on 21 November 2019. Provisional application since 1 January 2020 in relation to states that have made a similar declaration.
For the complete documentation see the pages in German, French or Italian.
Last modification 01.03.2022