Mutual Assistance Act (IMAC)
English is not an official language of the Swiss Confederation. This translation is provided for information purposes only and has no legal force.
Chapter 1 Conditions
Art. 32 Foreign nationals
Foreign nationals may be surrendered to another State for prosecution or enforcement of a sentence involving deprivation of liberty for acts which come under its criminal jurisdiction if that State requests extradition or if it accepts the Swiss request to prosecute the offence or enforce the judgment.
Art. 33 Persons under 20 years of age
1 Children and juveniles as defined in the Swiss Criminal Code whose extradition is requested shall, if possible, be repatriated by the juvenile authorities. The same applies to persons between the ages of 18 and 20 if extradition could endanger their mental development or social rehabilitation. 2 Repatriation shall have the effects of an extradition.
Para. 1 — SR 311.0
Art. 34
Repealed by No I of the FA of 4 Oct. 1996, with effect from 1 Feb. 1997 (AS 1997 114; BBl 1995 III 1).
Art. 35 Extraditable offences
1 Extradition is permitted if, according to the documents supporting the request, the offence: a. is punishable by deprivation of liberty for a maximum period of at least one year or a more severe sentence both under the law of Switzerland and under the law of the requesting State and b. is not subject to Swiss jurisdiction. 2 In determining whether an act is an offence under Swiss law, the following are not considered: a. its specific degrees of guilt and conditions for criminal liability; b. the conditions relating to the personal and time-related application of the Swiss Criminal Code and the Swiss Military Criminal Code of 13 June 1927 with regard to the criminal provisions on genocide, crimes against humanity and war crimes.
Para. 2 let. b — SR 311.0 Para. 2 let. b — SR 321.0 Para. 2 let. b — Amended by No I 4 of the FA of 18 June 2010 on the Amendment of the Federal Act in Implementation of the Rome Statute of the International Criminal Court, in force since 1 Jan. 2011 (AS 2010 4963; BBl 2008 3863).
Art. 36 Special cases
1 As an exception, the defendant may be extradited for an offence which comes under Swiss jurisdiction if special circumstances, especially the possibility of better social rehabilitation, justify it. 2 If one of two or more offences is extraditable (Art. 35 para. 1), extradition may be granted for all offences.
Art. 37 Denial
1 Extradition may be denied if Switzerland can assume responsibility for the prosecution of the offence or the execution of the foreign criminal judgment and if this appears to be appropriate with regard to the social rehabilitation of the defendant. 2 Extradition shall be denied if the request is based on a verdict issued in the absence of the defendant and if the minimum rights of the defence to which a defendant is recognised to be entitled were not respected in the proceedings preceding the verdict; this rule does not apply if the requesting State gives sufficient assurances to guarantee the defendant the right to new court proceedings where the rights of the defence are respected. 3 Extradition shall also be denied if the requesting State fails to guarantee that the defendant will not be sentenced to death, that an already pronounced death penalty will not be carried out, or that he will not be subjected to treatment that will impair his physical integrity.
Para. 2 — Amended by No I of the FA of 4 Oct. 1996, in force since 1 Feb. 1997 (AS 1997 114; BBl 1995 III 1). Para. 3 — Inserted by No I of the FA of 4 Oct. 1996, in force since 1 Feb. 1997 (AS 1997 114; BBl 1995 III 1).
Art. 38 Conditions
1 The defendant may be extradited only on condition that the requesting State: a. neither prosecutes nor sentences nor re-extradites him to a third State for any offence committed prior to his extradition and for which extradition was not granted; b. does not deprive him of his liberty on any other ground that existed before his extradition; c. does not bring him before an extraordinary court; and moreover d. sends the Swiss authorities, at their request, an officially certified copy of the decision which concludes the criminal proceedings. 2 The conditions of paragraph 1 letters a and b no longer apply if: a. the defendant or extradited expressly waives them; or b. the person extradited: 1. in spite of being advised of the consequences has not left the territory of the requesting State within forty-five days of his conditional or final release despite having the opportunity to do so, or if, after leaving that territory, he has returned, or 2. has been returned by a third State.
Para. 1 let. b — Amended by No I of the FA of 4 Oct. 1996, in force since 1 Feb. 1997 (AS 1997 114; BBl 1995 III 1). Para. 1 let. c — Amended by No I of the FA of 4 Oct. 1996, in force since 1 Feb. 1997 (AS 1997 114; BBl 1995 III 1). Para. 2 let. b let. 2 — Amended by No I of the FA of 4 Oct. 1996, in force since 1 Feb. 1997 (AS 1997 114; BBl 1995 III 1).
Art. 39 Extension
If the extradited person is charged with other offences, the State to which he was extradited may be permitted, on making a new request, to prosecute these offences as well.
Art. 40 Requests by more than one State
1 If two or more States request extradition for the same offence, extradition shall be granted as a rule to the State where the offence was committed or principally perpetrated. 2 If extradition is requested by more than one State for different offences, the decision shall be made having due regard to all circumstances, especially the seriousness of the offences, the place of commission, the chronological order in which the requests were received, the nationality of the defendant, the better prospect of social rehabilitation and the possibility of extradition to another State.
Chapter 2 Procedure
Section 1 Requests
Art. 41 Documents supporting the request
In addition to the documents specified in Article 28 paragraph 3, the following shall be enclosed with the request: the original or an officially authenticated copy of an enforceable judgment, of an arrest warrant or of any other document issued in accordance with the regulations of the requesting State and having the same effect.
Art. 42 Request for tracing and arrest
Requests for tracing and arrest with a view to extradition shall contain, in addition to the items of information specified in Article 28 paragraphs 2 and 3 letter a, references to the following: a. the existence of a valid arrest warrant, its date of issue and the name of the issuing authority; b. the intention of the competent authority to make a request for extradition.
Art. 43 Consideration of the request
The FOJ shall decide whether and under what conditions it will consider the request.
Section 2 Provisional Measures
Art. 44 Arrest
Foreign nationals may be arrested with a view to extradition on the basis of a request by an Interpol National Central Bureau or the Ministry of Justice of another State or on the basis of an international alert in a police search system. Article 52 paragraphs 1 and 2 apply by analogy.
Amended by No I of the FA of 4 Oct. 1996, in force since 1 Feb. 1997 (AS 1997 114; BBl 1995 III 1).
Art. 45 Seizure of objects
1 At the time of arrest, objects and assets which can serve as evidence in foreign criminal proceedings or which originate from an offence shall be seized. 2 The cantonal authorities may, if necessary, order that the arrested person or the rooms be searched.
Art. 46 Notice of execution. Duration of measures
1 Arrest and seizure shall be reported to the FOJ. 2 They shall continue until a decision concerning the detention awaiting extradition is issued but at the latest until the third workday after the arrest.
Section 3 Detention awaiting Extradition and Seizu
Art. 47 Arrest warrant and other rulings
1 The FOJ shall issue an arrest warrant with a view to extradition. It may decline to do so, especially if the defendant: a. will probably not elude extradition and will not endanger the criminal investigation; or b. can prove without delay that he was not at the place of the offence when it was committed. 2 If the defendant is unfit to remain in detention or if there are other valid reasons, the FOJ may order measures other than detention to ensure his presence. 3 At the same time the FOJ shall rule on which objects and assets will remain seized or must be seized.
Art. 48 Content
1 Rulings under Article 47 shall contain: a. information, provided by the foreign authority, concerning the identity of the defendant and the offence alleged against this person; b. the name of the office which made the request; c. the confirmation that extradition will be requested; d. the notice regarding the right of appeal under paragraph 2 and the right to appoint a legal adviser. 2 An appeal against these rulings may be filed with the Appeals Chamber of the Federal Criminal Court within ten days of the serving of the written arrest warrant with a view to extradition. Articles 379–397 CrimPC apply by analogy to the appeal procedure.
Para. 2 — SR 312.0 Para. 2 — Amended by Annex 1 No II 13 of the Criminal Procedure Code of 5 Oct. 2007, in force since 1 Jan. 2011 (AS 2010 1881; BBl 2006 1085).
Art. 49 Execution
1 The execution of rulings under Article 47 is a matter for the cantonal authorities. 2 The arrest warrant with a view to extradition may not be executed while the defendant is held in detention awaiting trial or is serving a sentence. 3 The defendant may neither be released nor deported from Switzerland without the consent of the FOJ.
Para. 2 — Amended by No I of the FA of 4 Oct. 1996, in force since 1 Feb. 1997 (AS 1997 114; BBl 1995 III 1).
Art. 50 Release from detention
1 The FOJ shall order the release of the person concerned from detention 18 days after arrest if the request for extradition and the documents supporting it have not been received. This period may be extended for special cause by up to 40 days. 2 If the defendant is already detained, the period shall start when he is detained with a view to extradition. 3 By way of exception, the person concerned may be released from detention with a view to extradition at any stage of the proceedings if this is appropriate in the circumstances. The defendant may lodge a petition for release at any time. 4 In addition, Articles 238–240 CrimPC apply by analogy to release from detention.
Para. 1 — Amended by No I of the FA of 4 Oct. 1996, in force since 1 Feb. 1997 (AS 1997 114; BBl 1995 III 1). Para. 4 — SR 312.0 Para. 4 — Amended by Annex 1 No II 13 of the Criminal Procedure Code of 5 Oct. 2007, in force since 1 Jan. 2011 (AS 2010 1881; BBl 2006 1085).
Art. 51 Continuation and renewal of detention
1 If the request and its enclosures are received in time and if extradition is not obviously inadmissible, detention shall continue throughout the proceedings without special ruling. 2 If the defendant has been released, detention with a view to extradition may be ordered again.
Section 4 Preparation of the Extradition Decision
Art. 52 Right to be heard
1 The request and the documents supporting it shall be submitted to the defendant and to his legal adviser. When formally presenting the defendant with the arrest warrant with a view to extradition, the cantonal authority shall ascertain if the defendant is identical with the person mentioned in the request. It shall explain to him the conditions of extradition and of simplified extradition and advise him of the right to appeal, to appoint a legal adviser or to have a legal adviser officially appointed. 2 The defendant shall be questioned briefly about his personal circumstances, and especially his nationality and relationship with the requesting State, and asked if and for what reasons he raises objections to the arrest warrant or his extradition. His legal adviser may assist in this hearing. 3 If the extradited person is to be prosecuted for other offences or re-extradited to a third State, the FOJ shall arrange for him to be questioned on the record in accordance with paragraph 2 by
Para. 1 — Amended by No I of the FA of 4 Oct. 1996, in force since 1 Feb. 1997 (AS 1997 114; BBl 1995 III 1).
Art. 53 Alibi evidence
1 If the defendant claims to be able to prove that he was not at the scene of the offence when it was committed, the FOJ shall make the necessary investigations. 2 Extradition shall be denied in clear cases. In other cases, the exculpatory evidence shall be submitted to the requesting State which shall be asked to declare within a short time whether it wishes to continue with its request.
Art. 54 Simplified extradition
1 If the defendant places on the record before a judicial authority that he waives the requirement of extradition proceedings, the FOJ shall order his surrender unless there are special considerations prohibiting it. 2 This waiver may be revoked provided the FOJ has not ordered the surrender. 3 Simplified extradition shall have the effect of extradition and is subject to the same conditions. The requesting State shall be given notice thereof.
Art. 54 — Amended by No I of the FA of 4 Oct. 1996, in force since 1 Feb. 1997 (AS 1997 114; BBl 1995 III 1).
Section 5 Decision on Extradition
Art. 55 Competence
1 After setting the defendant and the third party objecting to the handing over of objects an appropriate deadline for stating their position, the FOJ shall rule on the extradition of the defendant and the handing over of objects and assets seized. 2 If the defendant claims that he is being charged with a political offence or if the investigation reveals serious grounds to believe that the offence is of a political nature, the Appeals Chamber of the Federal Criminal Court shall decide the case. The FOJ shall send the file to this Court, together with its proposal. The defendant shall be given the opportunity to state his position. 3 The procedure for an appeal under Article 25 applies by analogy.
Para. 1 — Amended by No I of the FA of 4 Oct. 1996, in force since 1 Feb. 1997 (AS 1997 114; BBl 1995 III 1). Para. 2 — Amended by Annex No 30 of the FA of 17 June 2005 on the Federal Administrative Court, in force since 1 Jan. 2007 (AS 2006 2197; BBl 2001 4202). Para. 3 — Amended by Annex No 30 of the Federal Act of 17 June 2005 on the Federal Administrative Court, in force since 1 Jan. 2007 (AS 2006 2197; BBl 2001 4202).
Art. 55a Coordination with asylum proceedings
If the defendant has applied for asylum under the Asylum Act of 26 June 1998, the FOJ and the appellate authority shall consult the files from the asylum proceedings when deciding on extradition.
Art. 55a — Inserted by No I 3 of the FA of 1 Oct. 2010 on the Coordination of Asylum and Extradition Procedures, in force since 1 April 2011 (AS 2011 925; BBl 2010 1467). SR 142.31
Section 6 Execution
Art. 56 Executability
1 Extradition may be executed if the defendant: a. expressly requests his own immediate extradition; or b. does not give notice within five days of the issue of the ruling that he will file an appeal. 2 If extradition is refused, the FOJ shall release the person concerned from detention with a view to extradition.
Art. 57 Extradition
1 The FOJ shall issue the necessary rulings in agreement with the cantonal authorities. 2 It shall notify the requesting State of the decision as well as of the date and place of extradition.
Art. 58 Postponement. Provisional surrender
1 Extradition may be postponed provided the person to be extradited is being prosecuted in Switzerland for other offences or if he has to serve a sentence involving deprivation of liberty. 2 However, provisional surrender of the defendant may be granted if: a. this will not be prejudicial to the Swiss criminal proceedings; and b. the requesting State has guaranteed to keep the defendant in custody during his stay in that State and will return him regardless of his nationality.
Art. 59 Handing over of objects and assets
1 If the conditions set for the extradition are met, objects and assets shall also be handed over which: a. can serve as evidence; or b. derive from the offence. 2 If an authority, or a third party with rights acquired in good faith, or the victim who lives in Switzerland asserts rights over the objects or assets which can serve as evidence, their handing over shall be subject to the condition that the requesting State guarantees their return without costs after the conclusion of its proceedings. 3 The objects or assets which derive from the offence include: a. instruments which served to commit the offence; b. products or profits of the offence, their replacement value and any unlawful advantage; c. gifts and other benefits which served to instigate the offence or recompense the perpetrator for the offence, as well as their replacement value. 4 The objects or assets which derive from the offence may be retained in Switzerland if: a. the victim is habitually resident in Switzerland and
Art. 59 — Amended by No I of the FA of 4 Oct. 1996, in force since 1 Feb. 1997 (AS 1997 114; BBl 1995 III 1). Para. 8 — SR 312.4 Para. 8 — Inserted by Annex No 2 of the FA of 19 March 2004 on the Division of Forfeited Assets, in force since 1 August 2004 (AS 2004 3503; BBl 2002 441).
Art. 60 Fiscal lien
1 If objects or assets are handed over and their return is waived, the customs lien or any other real liability under Swiss customs or tax law shall not be claimed if the owner who suffered loss as a result of the offence does not personally owe the duty or tax. 2 The waiver of such a fiscal lien may be made dependent on reciprocity.
Art. 61 Time limit for taking over
If the requesting State does not take the necessary steps to take over the person to be extradited within ten days of notification of the execution order, he shall be released. This time limit may be extended up to 30 days in response to a justified request from the requesting State.
Art. 62 Costs
1 In the event of extradition to a foreign country, the Swiss Confederation shall pay the costs of detention and transportation provided that it is customary in international relations for the requested State to pay such costs. 2 The personal property of the defendant may be used to cover the costs provided it does not have to be handed over to the requesting State.