Extradition between Germany and Switzerland

In principle, extraditions in Germany are governed by the provisions of the Law on International Mutual Assistance in Criminal Matters (IRG) and in Switzerland by the Swiss Federal Law on International Mutual Assistance in Criminal Matters (IRSG). Germany and Switzerland are members of the European Convention on Extradition (EuAlÜbk), so extraditions between the two states is primarily governed by this agreement and its provisions. In addition, Germany and Switzerland concluded a supplementary treaty on 13 November 1969, which supplements the provisions of the Convention.

As a rule, extradition proceedings in Switzerland begin with a foreign search request. Such a search request usually takes the form of an alert via the Schengen Information System (SIS), via Interpol or is transmitted directly by a foreign judicial authority. The request is then examined by the Swiss Federal Office of Justice (FOJ) concerning the completeness of the information to decide whether the requested extradition would in principle be possible. Subsequently, if the wanted persons whereabouts are known, an arrest will be arranged. If the whereabouts are unknown and there is no alert in the SIS, the person is put on the wanted list.

The course of the extradition procedure itself varies, depending on whether the wanted person agrees to their extradition. If a person concerned declares their consent, the FOJ can immediately authorise the extradition and arrange for its execution, which often takes only a few days. This makes Switzerland one of the few countries where a simplified extradition procedure is possible. On the other hand, ordinary extradition proceedings can sometimes take more than a year, especially in complicated cases and if all legal remedies have been exhausted. Ordinary extradition proceedings are conducted if the requested person opposes their extradition. As a rule, the FOJ issues an extradition warrant in such cases and requests the foreign state to submit a formal extradition request. If the FOJ receives this in due time, the wanted person will generally remain in custody until the end of the extradition proceedings. If, however, the extradition request is not received in due time, the person concerned must be released.

In the context of extradition proceedings, persons concerned in Switzerland have various possibilities to appeal against the actions of the authorities. At the beginning of the proceedings, the competent cantonal authority issues the extradition warrant to the requested person and, in this context, the person concerned gets informed about the extradition request. At this point, the requested person can file an appeal against the extradition warrant with the Federal Criminal Court. If the Federal Criminal Court has ruled on the appeal, both the FOJ and the requested person again have the opportunity to challenge the decision before the Federal Supreme Court. In addition, the requested person can submit a request for release from custody for the entire duration of the extradition proceedings.

The decision on extradition is taken by the FOJ in the first instance, based on the interrogation and any statement by the requested person’s lawyer. At this point, the formal and material prerequisites for extradition and the punishability of the charges contained in the request under Swiss law must be examined. However, no actual questions of guilt and facts are examined. They are irrelevant for the extradition proceedings.

If the extradition decision has been granted, the person concerned may lodge an appeal with the Federal Criminal Court within 30 days of the decision being issued. In “particularly important cases”, a further appeal against the decision can be lodged with the Federal Supreme Court. Once an extradition decision has become final, or if the person concerned does not announce their intention to lodge an appeal within five days of the extradition decision being issued, the execution of the extradition will be initiated by the FOJ.

The extradition practice between Germany and Switzerland is decisively shaped by the principles of the European Convention on Extradition (EuAlÜbk). According to these principles, the two states are obliged to cooperate and extradite if the conditions of the agreement are met (Art. 1 EuAlÜbk). These conditions include the seriousness of the offence. The agreement only provides for extradition if the offence on which extradition is based is punishable in both states (principle of double criminality) by a custodial sentence of a maximum of at least one year (Art. 2 para. 1 EuAlÜbk). Furthermore, once extradition has taken place, the person concerned may only be prosecuted, detained or extradited to third countries for the acts for which extradition was granted (principle of speciality).

According to the provisions of the European Convention on Extradition, the general obligation to extradite does not apply to political and military offences (Art. 3, 4 EuAlÜbk) or fiscal offences (Art. 5 EuAlÜbk). Article 5 EuAlÜbk stipulates that extradition following the provisions of the Convention for fiscal offences will only be granted if it has been expressly agreed by the contracting states concerned for individual or groups of criminal offences. In extradition porceedings between Germany and Switzerland, extradition for a fiscal offence is only granted in severe cases. In addition, mutual assistance must be provided for fiscal offences in value-added taxes, excise duties and customs duties. In extradition traffic between Germany and Switzerland, it should also be noted that Switzerland, unlike Germany, distinguishes between tax evasion and tax fraud. In Switzerland, tax evasion is not punishable by imprisonment but only by a fine, which means that an offence that falls within the scope of tax evasion in Switzerland does not, in principle, fall under the extraditable offences of Art. 2 EuAlÜbk.

Moreover, proceedings already underway for the same offence in the requested state generally take precedence over extradition. A conviction that has already been handed down in the requested state for the offence on which the extradition request is based precludes extradition (“non bis in idem”, Art. 9 EuAlÜbk). According to Art. 10 EuAlÜbk, extradition is usally not granted even if the prosecution or execution of the sentence is already statute-barred according to the regulations of the requesting or requested state. However, Switzerland and Germany have abrogated this rule through their bilateral treaty supplementing the EuAlÜbk, which is why extradition between the two states can no longer be refused on the grounds of the statute of limitations.

Not only do agreements exist between Germany and Switzerland to regulate possible extradition traffic in theory, but in practice, there is also constant cooperation in international mutual legal assistance. A prominent case occurred in 2021 when Germany requested Switzerland to extradite a German banker, lawyer and tax advisor who was considered one of the brains in the Cum-Ex scandal. After a long procedure, the Federal Criminal Court in Bellinzona agreed to the extradition in December 2021. However, despite the cooperation between the two states, extradition requests are also sometimes rejected. For example, both states generally do not extradite their citizens to foreign countries. In these cases, however, the home state can instead be requested for deputy prosecution to close the resulting gap in prosecution. Extradition requests can also be refused in other cases. In 2020, for example, the Swiss Federal Criminal Court refused to extradite a Kurdish PKK member with Turkish nationality because the PKK is not considered a criminal organisation in Switzerland but should be classified as a political party or resistance movement. A precise examination of the individual case and accurate legal advice to fully exhaust the legal remedies available to the persons concerned is of enormous importance in extradition dealings with Switzerland.