Switzerland A. MLA Legal Framework and Preconditions to Cooperation (General) A.1. Relevant Laws, Treaties, and Conventions Dealing with or Including a Component Relevant for MLA and Asset Recovery • All requests for MLA are executed based on the Federal Act on International Mutual Assistance in Criminal Matters (IMAC) (http://www.rhf.admin.ch/etc/ medialib/data/rhf/recht.Par.0016.File.tmp/sr351-1-e.pdf) and the Ordinance on International Mutual Assistance in Criminal Matters (O-IMAC) (http://www.rhf. admin.ch/etc/medialib/data/rhf/recht.Par.0012.File.tmp/sr351-11-e.pdf). • Switzerland has entered into bilateral and multilateral MLA treaties with a large number of countries and has ratified numerous international treaties that include MLA provisions (including the UNCAC). The full list of treaties relevant for MLA can be found on http://www.rhf.admin.ch/rhf/fr/home/straf/recht/multilateral .html. A.2. Legal Preconditions for the Provision of MLA •
Reciprocity applies to all MLA requests (IMAC Article 8). In case of a treaty relationship or an ad hoc agreement with a requesting state, reciprocity is met. In other cases, a reciprocity guarantee is required. Reciprocity may be waived for the serving of documents or if the execution of a request seems advisable given the type of offense involved. • Dual criminality is mandatory with respect to coercive measures, including the gathering of evidence, searches, seizures, or confiscation of assets. Noncoercive forms of assistance may be granted in the absence of dual criminality. Whether dual criminality is met is determined based on the law at the time the assistance is given, not at the time the offense was committed or the request was received. • IMAC Article 67 provides for the principle of specialty, according to which MLA may be granted only under the condition that the documents and information provided are not used for investigative purposes or as formal evidence in court for political offenses, military offenses, and fiscal offenses other than tax fraud. Where an offense for which MLA is requested has a component relating to any of these offenses, the information or documents received from Switzerland may be used only to investigate and prosecute the “ordinary” but not the offense pursuant to Article 3. A.3. Grounds for Refusal of MLA Pursuant to IMAC Articles 2, 3, and 4, requests may not be granted if: •
The foreign proceeding does not meet the procedural requirements of the European Convention of Human Rights and Fundamental Freedoms or the International Covenant on Civil and Political Rights. Appendix B
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