SWITZERLAND: EVALUATION OF LAWS FOR CONTROLLING THE TRANSFER OF TECHNOLOGY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP88T01235R000200280001-4
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 202
• Document Creation Date: December 27, 2016
• Document Release Date: February 23, 2012
• Sequence Number: 1
• Publication Date: December 1, 1987
• Content Type: REPORT

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Director of 3ec1et
Central 25X1
Intelligence
DCI
Switzerland: Evaluation of
Laws for Controlling the
Transfer of Technology
Technology Transfer
Intelligence Committee
Secret
TTIC 87-10006
December 1987
Copy
139
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N. J./mem:Jr 01
t Central 25X1
Intelligence
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Switzerland: Evaluation of
Laws for Controlling the
Transfer of Technology
Technology Transfer
Intelligence Committee
Secret
TTIC 87-10006
December 1987
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Switzerland: Evaluation of
Laws for Controlling the
Transfer of Technology
This publication, prepared by CIA's Office of General Counsel under the
auspices of TTIC, evaluates the export control laws and regulations of
Switzerland. Similar studies are planned for other select countries. The
study will assist readers in interpreting the Swiss export control system and
is based, in part, on information obtained from consultations with know-
ledgeable US and host government officials. This notebook, which can be
readily updated, identifies the strengths and weaknesses in the laws and
regulations, assesses the practical operation of current export controls, and
evaluates enforcement practices. The translated laws and regulations are
included for reference.
iii
Secret
TTIC 87-10006
December 1987
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Contents
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Note to Readers iii
Strengths and Weaknesses 1
In-Depth Assessment 3
Summary and Conclusions 3
Legal and Constitutional Background 4
Law and Ordinances Governing Technology Transfer 5
Practical Operation of Swiss Export Controls 8
Enforcement 12
Problem Areas 18
Laws and Regulations 23
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a
Switzerland: Evaluation of
Laws for Controlling the
Transfer of Technology
Strengths
The Swiss Government does not permit reexport of
controlled commodities if the country of origin requests
an import certificate ("Swiss Blue-) before approving an
export license.
Should the country of export not request a Swiss Blue,
the Swiss Government still may elect not to permit
reexport of a particularly sensitive technology.
Since a 1951 agreement with the United States, the
Swiss have permitted exports of indigenous high tech-
nology to the Soviet Bloc each year within overall
monetary limits (the "courant normal').
Swiss officials listen to and occasionally implement the
suggestions of their US counterparts through informal
but well-established cooperation at the working level.
? For transshipments of controlled commodities, Switzer-
land requires documentation that shipment to the ulti-
mate destination is lawful.
? Repairs of controlled items stored in Swiss warehouses
may be performed with special permission of Swiss
Customs; upgrades are not permitted.
? Swiss authorities will conduct prelicense and postship-
ment checks at the request of US officials.
? Under the Foreign Trade Law of 1982, moderate crimi-
nal penalties for export control violations may be
imposed.
? Reexports to non-Bloc countries require an IC/DV and
an end-user certificate.
Swiss officials regularly refer technical questions on
export control matters to the Swiss Manufacturers
Association, a private trade association.
Weaknesses
? Bern permits export of indigenous technology to the
Soviet Bloc.
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? Some COCOM countries, especially France, the United25X1
Kingdom, and Italy, are not consistent in requesting
Swiss Blues before exporting controlled commodities to
Switzerland, which means the Swiss could reexport the
goods to the Bloc. 25X1
? High-technology commodities can be exported to the
Bloc without entering or transiting Switzerland by
companies registered in Switzerland that conduct their
trading outside Swiss borders, trading that is not
regulated by Swiss law.
On-site prelicense and postshipment checks by US
officials are prohibited as infringements of Swiss sover-
eignty.
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As a general rule, technology imported under a Swiss
Blue and integrated into equipment may be exported
lawfully to the Soviet Bloc if it accounts for no more 25X1
than 15 percent of the value of the completed commod-
ity. 25X1
As an administrative exception to the 1986 transit
ordinance, Swiss Customs assumes that shipments
bound for European countries (including Austria and
Finland) are lawful and do not require presentation of 25X1
documentation. 25X1
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? Circumstances of the only known diversion attempt
under the new transit ordinance suggest that Swiss
Customs may have discovered the attempt only by
accident.
? The Swiss Government will not allow the posting of a
US customs attache in Bern.
? There have been few criminal prosecutions under the
Swiss export control system and none reported under
the recent transit controls.
? Bern rejects consultations with US officials about par-
ticularly sensitive exports as being tantamount to
COCOM membership.
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Switzerland: Evaluation of
Laws for Controlling the
Transfer of Technology
Summary and Conclusions
Although Switzerland has maintained a centuries-old
history of permanent neutrality, its pragmatic ap-
proach reflects a willingness to relax the constraints of
neutrality in order to serve its economic and political
interests and to ensure its access to Western
technology.
Accordingly, although Switzerland exports its own
technology to the Soviet Bloc, it informally and tacitly
enforces reexport controls imposed by other countries
(in practice, COCOM countries) pursuant to its "au-
tonomous" system. Specifically, it issues import cer-
tificates (Swiss Blues) for controlled technology when-
ever the country of origin requires one before
approving an export license. In so doing, the Swiss
Government officially certifies that the commodity is
intended for use in Switzerland and that a Swiss
export license and authorization from the country of
origin will be required before the commodity may be
reexported to the Soviet Bloc.
Swiss reexport controls are effective only to the extent
the COCOM country of origin requests a Swiss Blue
for exports of controlled technology to Switzerland
(and Lichtenstein, which falls within Swiss Customs
jurisdiction). Apart from the United States, however,
COCOM countries are not consistent in requesting
Swiss Blues. If none is requested, but the item appears
on Switzerland's own control list, only a Swiss export
license (which is granted routinely) is required for
reexport anywhere; consent of the country of origin
.? need not be shown. Should the item not be listed on
the Swiss control list, it may be reexported freely.
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As of 1 January 1986, Switzerland began monitoring
transshipments of controlled commodities through its
transit zones by requiring documentation establishing
that the shipments were bound for lawful destinations
under the export regulations of the country of origin
(or the last country into which the item legally was
imported). Moreover, controlled items stored in Swiss
bonded warehouses may not be upgraded, and repairs
may be conducted only with special authorization.
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Nevertheless, administrative exceptions to the re-
quirement to prove lawful shipment raise questions
about the effectiveness of the Swiss control system.
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The principal institutional weakness in the Swiss
export control system remains the export of sensitive
technology of Swiss origin to the Soviet Bloc. Pursu-
ant to a "gentlemen's agreement" of 1951, the United
States has acquiesced in these exports within certain
monetary limits (known as the "courant normal"),
which periodically are revised to account for inflation
and other factors. Although this trade is but a small
portion of Swiss exports to the Soviet Bloc, the limits
are based upon monetary value rather than the sophis-
tication of the technology. The Swiss have refused to
eliminate this trade and reject consultations with US
officials about particularly sensitive exports as being
tantamount to COCOM membership and thus an
impermissible compromise of Swiss neutrality and
sovereignty.
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Apart from the wholly Swiss technology exported 25X1
through the "courant normal," COCOM-controlled
technology incorporated into Swiss products also may
be exported to the Bloc. This stems from the Swiss
position that, if the monetary value of the controlled
components does not exceed 10 to 15 percent of the
value of the finished product?regardless of the sensi-
tivity of the components?the product is considered to
be of Swiss origin and may be exported within the
limits of the "courant normal."
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Switzerland's decentralized government and strict
laws protecting commercial privacy have fostered
"mailbox companies," that is, firms that trade in 25X1
Western high technology, including exports to the
Soviet Bloc, without commodities entering or even
transiting Switzerland. Although informal coopera-
tion with Swiss authorities and mutual judicial assis-
tance procedures may prove helpful, genuinely effec-
tive controls over these enterprises are unlikely
because the Swiss rarely assert jurisdiction over busi-
ness activities that take place outside Switzerland.
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The Swiss Criminal Code prohibits foreign govern-
ments from undertaking investigations of an intelli-
gence-gathering nature in Switzerland, regarding
them as infringements on Swiss sovereignty. This
precludes prelicensing or postshipment checks by US
officials and prompted the Swiss to reject the posting
of a US Customs attache to Bern. The consensus
among US Embassy officials, however, is that these
constraints are mitigated by the checks conducted by
Swiss authorities, often at the request of US officials.
Legal and Constitutional Background
Switzerland for centuries has maintained a tradition
of permanent yet armed neutrality, dependent upon
the recognition of other states but also upon its
willingness and capacity to defend itself. It is a
neutrality that seeks to avoid the conflicts of others,
yet does not eschew an active role in world affairs.
Above all, Swiss neutrality is pragmatic and thus
accommodates a thriving international trade. Switzer-
land is dependent upon many countries of varied
political character for both raw materials and mar-
kets. For instance, Swiss industry relies on access to
sophisticated Western technology to remain interna-
tionally competitive but receives much of its energy
from the Soviet Bloc. The Swiss genuinely believe
that the public image of a nonaligned Switzerland
must remain inviolate. Therefore, Swiss economic and
political policies must appear to be self-initiated and
in Swiss self-interest.
Thus, the Swiss approach is one of compromise to
preserve their national autonomy and a value system
that is rooted in Western traditions. Swiss officials
maintain informal, closely held contacts, most often at
the working level, with their counterparts in other
Western nations. This practice is apparent in the field
of technology transfer.
Switzerland is a confederation consisting of 26 can-
tons and half-cantons. Each of these is autonomous in
law and has its own republican form of government
(with separate legislative, executive, and judicial
branches) separate from the national government. To
the extent their sovereignty is not limited expressly by
the Federal Constitution, the cantons retain authority
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to govern and are responsible for the execution of
Federal laws under the supervision of Federal offi-
cials. Many areas of national concern such as foreign
affairs are subject to Federal legislative authority in
the Constitution. The Federal Assembly (legislature)
also has enacted the law governing import and export
controls.
Apart from the residual powers retained by the
cantons, the Swiss people have reserved to themselves
an element of direct democratic action. After its
enactment by the legislature, but prior to becoming
effective, legislation may be challenged by popular
referendum if so demanded by eight cantons or
50,000 registered voters. This accounts for the unusu-
ally lengthy period between enactment and effective-
ness of Swiss laws. Once a law has become effective,
however, it may be popularly challenged only by
means of an initiative to amend the Constitution,
which requires the signatures of 100,000 voters. The
initiative then must be approved by majorities of both
the cantons and the popular vote.
The Federal Assembly is a bicameral legislature. The
National Council, consisting of 200 members, is
elected every four years by direct popular vote. The
Council of State is composed of 46 representatives
elected by the 20 cantons (two each) and six half-
cantons (one each). The Federal Assembly legislates
by either law or decree. Laws must be enacted
whenever the legislation is to be effective for an
unlimited period and are subject to popular referen-
dum, as described above. Decrees may be in either of
two forms: those prescribing general legal standards
of an obligatory character, which are subject to
referendum; or simple decrees, addressing matters of
narrow concern, which are not subject to referendum.
In cases of emergency, the Assembly may provide
that a decree become effective immediately. Should a
referendum subsequently be initiated, however, the
effectiveness of the decree ceases after one year unless
the decree is affirmed in the referendum.
The Federal Council wields the executive authority in
the Swiss Government. It is composed of seven mem-
bers of the Federal Assembly elected for terms of four
years by both houses sitting together. Each of the
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seven members supervises one of the ministries com-
posing the "Government," such as Foreign Affairs,
Public Economy, and Defense. The Assembly also
elects a Chairman and Vice Chairman of the Council
for nonsuccessive terms of one year. There is no Prime
Minister in Switzerland; the Chairman also serves as
President. The Federal Council prepares a legislative
program and preliminary drafts of particular laws or
decrees, although the Assembly may charge the
Council to address a particular question.
The Swiss judiciary consists of civil, criminal, and
administrative courts under the supervision of the
canton in which they are elected. Some consistency in
the law is ensured, however, through appeals from
these cantonal courts to the Federal Tribunal, the
only "national" court. This court also may rule on
appeals from administrative rulings by Federal agen-
cies. Unlike the US system, neither the lower courts
nor the Federal Tribunal is empowered to rule on the
compliance of legislation with the Constitution.
Apart from this formal structure, the Swiss legal
system is distinguished by the extraordinary degree of
political compromise that attends the legislative
process and governing in general. Although there are
shifts in alliances among the political parties, there is
a longstanding tradition of consensus in the interests
of national stability and cooperation between the
Federal and cantonal governments. This compromise
and resulting consensus is reflected in the Swiss
Government's dealings with foreign governments; al-
though a position may have undergone extensive
internal debate, it is promulgated as a well-coordinat-
ed policy. This consensus is also of paramount impor-
tance in maintaining informal cooperation with
COCOM governments on matters involving technol-
ogy transfer.
Law and Ordinances Governing Technology Transfer
Federal Law of 25 June 1982 on Foreign
Trade Measures
The statutory foundation for the Federal Govern-
ment's control of exports is offically entitled the Law
of 25 June 1982 on Foreign Trade Measures (tab A).
This law occasionally is referred to as the Law of
1 June 1983, the date on which it became effective;
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for convenience, it will be referred to in this report as
"the Foreign Trade Law." In its brevity and sweep, it
is typical of Swiss legislation. Although composed of
only 11 articles, it vests in the Federal Council wide-
ranging authority to regulate foreign trade, premised
upon the condition that either the actions of other
countries or extraordinary circumstances influence
trade to such an extent that significant Swiss econom-
ic interests are impaired. In such circumstances, the
Council may monitor, subject to licensing, restrict, or
even prohibit the import, export, or transit of goods or
the exchange of services.
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Pursuant to this authority, ordinances have been
adopted by the Federal Council governing the export
and transit of controlled commodities as well as the
use of import certificates. The Council also may
regulate international payments by means of agree-
ments on the exchange of goods, services, and pay-
ments, even to the extent of joining international
organizations. The Council also may commission 25X1
other governmental departments and private organi-
zations to aid in the implementation of control mea-
sures or trade agreements, subject to Council supervi-
sion. Fees may be imposed to cover the costs of
enforcing controls. 25X1
Although the Foreign Trade Law authorizes the
regulation of trade, it leaves to the implementing
ordinances the task of specifying particular controls.
Accordingly, the penal provisions of the Law do not
define violations but simply prescribe the maximum
punishments that may be imposed. Negligent or in-
tentional violations may be punished by a fine of up to
100,000 francs, while "egregious intentional viola-
tions" are subject to the additional penalty of impris-
onment for up to one year. A person convicted of such
an offense as failure to abide by the obligations 25X1
incurred in obtaining an import certificate would be
subject to these maximum punishments. 25X1
Misconduct that would violate the ordinances, such as
providing incomplete or incorrect descriptions of the
controlled commodity for which an import certificate
is sought, also would violate the more general provi-
sions of the Customs Act concerning the misdeclara-
tion of goods. Thus, the Foreign Trade Law provides
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that these violations are punished exclusively accord-
ing to the penal and procedural provisions of the
Customs Act.
Certain procedural matters also are prescribed in the
Foreign Trade Law, including a statute of limitations
of five years for all violations. The prosecution of
offenses is under Federal rather than cantonal juris-
diction.
The remainder of the Foreign Trade Law concerns
such administrative matters as the appointment by
the Federal Council of a Consultative Commission for
Foreign Trade Policy and of an Advisory Commission
for International Development Cooperation to con-
duct hearings on "significant issues of foreign trade
policy." It is noteworthy that members of the private
Swiss business community often are members of these
commissions. The Council also is obliged to report to
the Federal Assembly at least yearly on such issues.
The Council must report on ordinances or other
measures taken pursuant to Article 1, however, within
six months of enactment. The Assembly then decides
whether the measures adopted should remain in force.
None of the regulations enacted recently to control
import certificates or the export, reexport, or transit
of controlled commodities has been rescinded by the
Federal Assembly.
Ordinances Adopted Under the Foreign Trade Law
Three ordinances that together form the administra-
tive framework for the import and export of controlled
technology were enacted by the Federal Council
under the Foreign Trade Law on 7 March 1983. An
important amendment to one of these ordinances,
which became effective on 1 January 1986, instituted
the Swiss system for controlling the transit of con-
trolled commodities.
Ordinance on Goods Export and Transit
(S.R. 946.221). This Ordinance (tab B) defines both
the obligation to obtain a license to export certain
types of goods (set out in a Supplement) and the
prohibition against the transit of these goods absent
proof that shipment to the ultimate destination is
lawful under the pertinent regulations of the country
of origin.
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Article 1 requires an export license for the goods
listed in the Supplement to the Ordinance, which
informally is called the "Red Export List." (See tab
C.) This list is derived directly from the COCOM
Control List, and the Swiss periodically update the list
to reflect changes. Under Article 4, deliveries of goods
to foreign diplomatic or consular delegations in Swit-
zerland (other than diplomatic courier deliveries origi-
nating outside Switzerland) are considered to be
exports for purposes of this licensing requirement.
Pursuant to Article 6, an export license is not grant-
ed?in the absence of overriding national interests?
where the Department of Public Economy (EVD), the
cabinet-level ministry with overall responsibility for
Swiss export control policies, in consultation with the
private business community has determined that ex-
port of the goods in question must be restricted to
protect domestic supplies.
An amendment to the Ordinance dated 16 December
1985 added a new Article la, which prohibits transit
of listed goods insofar as the country of origin restricts
their export. Documentation must be produced during
transshipment through Switzerland to show that ship-
ment to the ultimate destination is authorized by the
export regulations of the country of origin. In keeping
with Swiss neutrality and the "autonomous" control
system, the Ordinance makes no mention of
COCOM; the restrictions apply to any national or
multilateral export-control system. In practice, the
controls are designed and operate to implement CO-
COM restrictions against sales of sensitive technology
to the Soviet Bloc. The amended Ordinance also
provides that goods bound for Switzerland and pro-
hibited from export by the EVD to protect domestic
supplies may not be diverted prior to clearing Swiss
customs.
Proof that delivery to the ultimate destination is
lawful according to the country of origin is to be
furnished at the time the goods enter the Swiss
customs area, although an extension may be granted
(as in when the ultimate purchaser is not yet known).
In practice, shippers are allowed 10 days in which to
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furnish the relevant proof; thereafter, the goods will
be seized. A potential loophole is closed in the provi-
sion that withdrawing controlled goods from a bonded
warehouse for further shipment is equivalent to tran-
sit and thus must be accompanied by proof that
delivery to the ultimate destination is lawful.
Repairs may be made to commodities stored in bond-
ed warehouses only with special permission from
Swiss customs; no upgrading of equipment is permit-
ted.
The Division of Import and Export Control (AEA) is
designated as the office responsible for issuing export
permits, under the supervision of the Office of Foreign
Economic Affairs (BAWI), which oversees the imple-
mentation of the control system. The AEA is autho-
rized to refer export license applications to the Swiss
Manufacturers Association (VSM) or to a chemical
trade association for expert assistance in evaluating
whether the commodity in question fits within the
specifications for controlled technology listed in the
Supplement to the Ordinance.
Exports not exceeding the rather low value allowances
specified in the Supplement (up to 2,000 francs) are
excepted from the export license requirement. This
does not apply to goods imported under a Swiss Blue
or to deliveries to Soviet Bloc countries (as listed in
the Supplement) and to China.
In determining whether a commodity may be de-
scribed in the license application as of "Swiss origin,"
the ordinance refers to a related regulation, the
Ordinance on Verification of Origin of 4 July 1984.
The standard specified in the Verification Ordinance
is not used for controlled commodities as a matter of
policy. The designation of "Swiss origin" is important
since it enables one to export sensitive technology to
the Soviet Bloc subject only to the quantitative limits
of the "courant normal."
Ordinance on the Exchange of Goods With Foreign
Countries (S.R. 946.201.1). This Ordinance (tab D)
contains the procedures and standards by which the
import and export of goods are subjected to licensing
by the Federal Council. It empowers the EVD to
grant exceptions to any licensing requirements that
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may be authorized by the Federal Council and autho-
rizes the EVD to grant exceptions, to condition, or
otherwise to restrict licensing requirements, including
the setting of quotas for particular goods or countries.
It states that, where import, export, or transit is
restricted, those licenses that are issued must be 25X1
distributed among applicants in proportion to the
extent in which they previously have engaged in
similar transactions (and are able to prove this). This
provision attempts to distribute equitably the burden
of lost business that may be caused by any restriction
of trade in certain goods. 25X1
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The AEA, acting under the instructions of the BAWI,
is established as the office responsible for issuing all
licenses and entitled to levy fees for them in accor-
dance with the ordinance that sets forth the pertinent
fee schedules. The EVD is authorized to establish
other permit offices and to allow them to collect fees,
although they also are under the supervision of the
BAWI. No other permit offices have been established
to date under this authority, although, pursuant to
other legislation, the Department of Energy and
Environment is responsible for issuing separate export
licenses for nuclear materials. Swiss officials also have
cited the ordinance as the authority for using the
VSM, a private trade association, as a consultant on
technical matters relating to export controls.
Article 3 of the Ordinance sets forth the following
standards that are to be applied in the granting of
licenses:
? Licenses are granted, on written application, to
persons and firms established for business in
Switzerland.
? The applicant must be "commercially involved" in
the import, export, or transit of the commodity
involved.
? Import licenses are not granted to companies that
are protected by the limitations on imports that led
to the obligation to obtain a license.
? Licenses are granted under the condition that they
may be revoked if the applicant fails to meet the
requirements for the license or if regulations subse-
quently are issued that change the requirements.
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Goods subject to licensing requirements may be
cleared through customs only if the license is present-
ed to the customs office during import or export
processing or its number is indicated on the clearance
application. If a license is required only for the export
or import of a certain type of goods, transit is
permitted without a license (except for private ware-
housing). Thus, the use of Switzerland for the transit
of goods requires a license only if expressly required,
as is the case with technology controlled by its country
of origin. Licenses are to be used only by the applicant
and for his own account, and are subjected to an
overall time limit of one year including any exten-
sions.
The remaining substantive provisions of the Ordi-
nance detail the responsibilities of applicants to fur-
nish pertinent information and the authority of licens-
ing officials to obtain that information. Applicants are
required to furnish complete and correct information,
to allow licensing authorities to review pertinent
documents and records, and to provide authorities
access to their business premises. Enforcement au-
thorities are empowered to exercise these investigative
functions. These provisions enable Swiss authorities to
conduct extensive prelicensing investigations of appli-
cants as a means of determining the likelihood that
the controlled commodities they are seeking to import
will remain and be used properly in Switzerland. As is
discussed later, however, the Swiss Criminal Code
prohibits US or other foreign officials from perform-
ing such activities on their own or from participating
in them with Swiss officials.
Ordinance on the Surveillance of Imports
(S.R. 946.211). This Ordinance (tab E) is a short
statement authorizing the AEA to issue import certif-
icates (provided the prerequisites are met) and to
supervise the importation of goods thereunder. It sets
forth the "basic principles," or prerequisites, that are
to govern the issuance of certificates. Briefly, these
principles provide that (1) import certificates are
issued only to firms established in Switzerland and
registered in the Trade Registry; (2) covered goods
must be imported immediately and that fact docu-
mented to the AEA; (3) the obligations incurred must
be passed along to any domestic purchaser; (4) reex-
port of the goods is allowed only with the permission
Secret
of the AEA, which in turn is granted only if consent
has been given by the country that demanded the
certificate; and (5) certificates expire if not presented
to the foreign export authority within six months of
issuance. The AEA is also authorized to collect fees
for the issuance of import certificates in accordance
with a schedule appearing in the Ordinance governing
fees.
Practical Operation of Swiss Export Controls
Application for Imports
Only those firms established for business in Switzer-
land and registered in the Trade Registry may obtain
a Swiss Blue. The importer submits a completed and
signed "import obligation" (which, together with the
import certificate itself, is combined in a single form)
by which he acknowledges the obligations that are
imposed upon him by issuance of the import certifi-
cate and agrees to abide by them. The form also must
contain a detailed description of the commodity so
that it readily may be identified should there be a
postshipment investigation to ensure that it in fact
was imported. The Swiss Blue also in effect warrants
that the importer is trustworthy and that random
checks will be made to ensure that consignees are
fulfilling their obligations under the certificate.
As mentioned before, prospective importer of con-
trolled technology must meet two criteria to be eligi-
ble for a Swiss import certificate. The first is that the
firm must be established for business in Switzerland.
In practice, the firm (especially a first-time applicant)
may have to demonstrate that its business has a
reasonable relationship to the purpose of the technol-
ogy to be imported. The second criterion is that the
importer must be registered in the Swiss Trade
Registry, a publication containing names of officers,
plant and office addresses, financial records, and
other information relating the firm's business
activities.
To obtain a Swiss Blue, the importer submits an
"import obligation" form, a single form consisting of
four sheets with the second sheet being the Swiss Blue
itself (tab G). The importer completes and signs the
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top copy of the form (the original of the import
obligation), on which he furnishes his name and
address; a description of the commodity, together with
its customs tariff number and quantity, weight, and
value in Swiss francs; the country of origin; and the
end user, if known. The description of the commodity
must be sufficiently detailed with pertinent specifica-
tions so that it may be identified subsequently should
an investigation of its whereabouts be necessary. The
importer's signature indicates his acknowledgment
and acceptance of the obligations he incurs upon
issuance of the import certificate, which are specified
on the reverse of the import obligation. This original
remains with the AEA (where it is used to record the
subsequent importation); the second sheet is the origi-
nal of the Swiss Blue. After the application is re-
viewed by the AEA, the original Swiss Blue is
returned to the importer to be dispatched to his
supplier for submission to the foreign export author-
ity. The third sheet is returned to the importer, and
the last sheet remains in AEA files.
Review Process
The completed form is submitted to the AEA where it
is screened by the Section Chief and referred to the
appropriate staff reviewer, who is responsible for all
applicants within a certain alphabetical segment. This
practice allows those responsible for reviewing appli-
cations to become familiar with individual businesses
and patterns of commercial activity. Given the small
size of Switzerland and the many years of experience
of the AEA staff, most applicants and ultimate
consignees are known to the reviewers.
The review process varies in thoroughness, depending
on the extent to which the importers are known to the
AEA. For instance, well-known reputable firms may
be issued special Swiss Blues that set overall monetary
limits and permit the firms to import commodities at
will within those limits. For first-time applicants, the
AEA checks the telephone directory and the Trade
Registry. These sources are helpful in determining
whether the commodity is likely to be put to an
appropriate use by the applicant. First-time applicants
also must complete a special Statement of End Use
(tab H); it includes a certification that the goods are to
be used in the country of destination indicated and
9
will not be reexported (except to COCOM countries)
without permission of the country that shipped the
goods.
Certain circumstances result in further inquiries by
the AEA, including insufficient descriptions of the
commodity, the listing of a freight forwarder as the
ultimate consignee, a post-office box for an address,
or companies of questionable trustworthiness. In such
cases, letters are addressed to the applicant and to the
stated end user, if any, requesting further details
concerning the intended use of the commodity. Visits
to facilities of prospective importers also may be
conducted, although it is not known how frequently
this occurs.
There also are situations in which the application for
an import certificate simply is denied. These include
cases in which the import obligation form clearly lists
a Bloc country as the ultimate destination or in which
the end user is listed generically as a non-Bloc country
and never specifically identified. Single requests sub-
mitted for import certificates to cover a number of
controlled items when reexport authority has not been
obtained from the country of origin for all of the items
also are denied.
If the importer intends to resell the item abroad and
the buyer and his domicile are known to him at the
time he applies for the Swiss Blue, the application is
rejected, because the purpose of the certificate is to
guarantee that the commodity will remain in Switzer-
land or that approval for reexport will be obtained
should the need later arise. In such a case, the
COCOM country of origin is considered to be respon-
sible for determining the legitimacy of any third-
country end user. Similarly, no import certificate is
issued for controlled commodities that are shipped "in
bond" to Switzerland pending shipment to a destina-
tion already approved by the country of origin.
Approved import certificates are signed and stamped
by the AEA with the second (the Swiss Blue) and
third (a copy of the import obligation) sheets returned
to the importer usually within two or three days for
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forwarding to his foreign supplier. The original Swiss
Blue accompanies the supplier's application for the
foreign export license and remains in the files of the
foreign export authority. The original of the import
obligation and the copy of the Swiss Blue (first and
fourth sheets of the form) are retained in the files of
the AEA. Affixed to these is a special code that
characterizes the importer and identifies the prospec-
tive end use of the commodity including any intended
resale. These codes are an internal control device used
by the AEA to assist in monitoring imports and are
not made public.
The Importing Process
The approved Swiss Blue then is submitted by the
importer to the export-control authority of his foreign
supplier (such as the Department of Commerce in the
United States), in whose files it remains. Although
regulations provide for a three-month duration for
Swiss Blues with a possible extension of three months,
it has proved more practical to issue most Swiss Blues
with an initial expiration date of six months.
Upon receipt of the approved certificate, the importer
is obliged to take "immediate measures" to import the
goods into Switzerland, although in practice submis-
sion of the Swiss Blue to the foreign export control
authorities is all that must be accomplished during the
six-month period of the certificate's validity. The
AEA maintains a "tickler file" of all Swiss Blues
issued; at the expiration of six months, a letter is sent
to the importer requesting proof that the goods have
been imported. Requests for extensions of up to one
year may be granted on a case-by-case basis consider-
ing such factors as whether a foreign export license
has been granted.
When the commodities covered by the Swiss Blue
arrive in Switzerland, the importer or his authorized
agent must inform the AEA in either of two ways: (1)
the number of the import certificate may be noted on
the customs import declaration (which is sent to the
AEA) together with the notation "to the attention of
the (AEA) for certificate control"; or (2) the importer
himself may forward the import duty receipt and a
copy of the supplier's invoice to the AEA. In either
event, the importation then is noted by the AEA on
the reverse of the import obligation form maintained
in its files.
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Should the importer be unable to import the commod-
ities in whole or in part, he must notify the AEA and
request a complete or partial exemption. A written
declaration (using a special form) must be submitted;
if the Swiss Blue already has been sent to the foreign
authority, the importer must have his supplier request
its return and the cancellation of any export license
obtained thereby. Under Swiss law, this requirement
is not a mere administrative formality; failure to
request an exemption is a violation of import obliga-
tions and could lead to prosecution. In practice,
however, there have not been any prosecutions for
failing to request an exemption; this may be a reflec-
tion of the government's confidence in the Swiss firms
and the likelihood that nothing has been amiss. The
AEA sends foreign export authorities monthly lists of
Swiss Blues that have expired without documented
arrival of the commodities in Switzerland.
Items appearing on the Swiss control list, the "Red
Export List," which is patterned after and revised to
account for changes in the Commodity Control List or
International List that are of Swiss origin?and thus
that do not involve a Swiss Blue?nonetheless require
a Swiss export license. The requirement serves both to
enable Swiss authorities to maintain the quantitative
limits of the "courant normal" and to prevent the
attempted export of foreign goods imported under a
Swiss Blue as being of Swiss origin so as to evade the
reexport restrictions of the Swiss Blue.
Restrictions on Investigations
Switzerland has a longstanding commitment to busi-
ness privacy that often is at odds with the efforts of
foreign governments to collect information on possible
criminal activities involving Swiss business interests.
The use of the Swiss bank secrecy laws to evade taxes
is one of the best known examples of this. Less
publicized, but of far more concern for national
security reasons, is the effect of the following Swiss
safeguards for business privacy that help conceal
diversions of sensitive technology to proscribed
destinations.
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Articles 271 through 273 of the Swiss Criminal Code
(tab F) prohibit investigations or other activities that
may be construed as the gathering of information if
such activities are conducted on behalf of a foreign
government or business enterprise. Switzerland con-
siders such activities to be impermissible infringe-
ments on Swiss sovereignty. Moreover, the Swiss use
Article 4 of the Criminal Code?in a rare assertion of
extraterritorial jurisdiction?to apply these prohibi-
tions to the operations of Swiss-controlled firms out-
side Switzerland. Consequently, it is not possible for
Swiss firms lawfully to disclose information in foreign
court proceedings even if so ordered by a foreign
court.
The first paragraph of Article 271 is a general
prohibition against the undertaking, without permis-
sion, of any activities that benefit an authority or
official of a foreign government or other foreign
organization. Also forbidden is the encouraging of
such activities. This provision has been interpreted as
prohibiting both the gathering of information by
investigators and the surrender of evidence and other
information by the subjects of the investigation. Thus,
not only would US officials be violating Swiss law by
conducting a prelicense or postshipment check of a
Swiss importer but the importer could be subject to
criminal liability should he share with those officials,
even voluntarily, information that the Swiss Govern-
ment considers to impinge upon national interests.
Violations of Article 271 are punished by imprison-
ment. Two other paragraphs in the Article prohibit
the abduction of persons in a foreign country in order
to deliver that person to a foreign authority or
organization.
Articles 272 and 273 prohibit activities that could be
considered to be political or economic intelligence
gathering. In each instance, the activities must have
been conducted on behalf of a foreign government or
other organization or party, including business enter-
prises. In the case of either political or military
intelligence, some detriment to Switzerland or its
institutions or inhabitants also must have resulted.
Imprisonment is the specified punishment. As with
the general prohibitions of Article 271, the specific
ban against industrial espionage appearing in Article
11
273 also protects business secrecy from the perspec-
tives of both the investigator and the subject of the
investigation. Thus, Article 273 subjects to imprison-
ment anyone who discloses business secrets to a 25X1
foreign government or organization as well as a
recipient who takes advantage of such disclosure.
These Swiss laws are of long standing and were not
enacted specifically to prevent foreign governments
from conducting investigations or otherwise attempt-
ing to forestall diversions of controlled technology.
The Swiss publicly describe them as an outgrowth of
their particular view of sovereignty and neutrality.
This strict interpretation contrasts with Austria, an- 25X1
other neutral state that nonetheless permits US offi-
cials to conduct their own prelicense and postshipment
checks so long as the Austrian Government is placed
on notice. In fact, the Swiss laws appear to be
designed to protect Switzerland's lucrative role as a
haven for international business by prohibiting indus-
trial espionage and otherwise protecting business con-
fidentiality. In any event, despite the Swiss Govern-
ment's increasing intolerance at being used as a
diversion point for controlled technology, these provi-
sions are relied upon to preclude US and other foreign
officials from pursuing, participating in, or even mere-
ly observing investigative activities seeking to prevent
diversions. To some extent, however, these prohibi-
tions are tempered by informal cooperation between
US and Swiss authorities.
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A 1971 Decree of the Federal Council allows the
prohibitions in Articles 271 through 273 to be waived
upon application. This procedure was used once to
permit US officials to assist Swiss authorities on an 25X1
inspection of food and drug laboratories. Thus far, the
Federal Council has refused to grant a waiver in
matters involving technology transfer.
Questions have arisen concerning the effect of Arti-
cles 271 through 273 upon the obligations of Swiss
holders of US distribution licenses to meet audit
requirements of those licenses. The Swiss Government
has displayed some flexibility on this issue and appar-
ently will acquiesce in "compliance reviews" by indi-
vidual US suppliers of their Swiss customers if these
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are limited to reviews of documents related to whether
the customer has met its obligations under the distri-
bution license; wholesale reviews of files are not
permitted.
Another facet of the audit question is the potential
liability of Swiss consignees for providing their US
suppliers with business information. With the view to
accommodating US distribution license requirements,
the Swiss Attorney General has ruled that Swiss
companies lawfully may furnish US suppliers with
customer names, lists of items sold, and either the sale
price or quantity of the item. Because Swiss firms
could still be sued by customers for furnishing this
information, most firms follow the practice of includ-
ing contract clauses informing the customer of the
firm's obligation to provide such information to US
suppliers. The effectiveness of such clauses in protect-
ing Swiss consignees, however, has yet to be tested in
court. Although audits of Swiss subsidiaries by their
US parent companies raise similar legal issues, in
practice there is far less of a problem because it is
unlikely that a subsidiary would complain to the Swiss
Government about an audit request from its parent.
The Criminal Code also has been relied upon by Swiss
officials in framing their recent objections to the
posting of a US Customs attache to Switzerland. The
Swiss acknowledged the possibility of granting excep-
tions to Article 271's proscription against investiga-
tive activities but emphasized that this is done on a
case-by-case basis and requires action of the Federal
Council itself, which rarely allows an exception. Of
particular concern is the possibility that granting such
a waiver would set a precedent for other countries to
seek similar concessions. Moreover, a Customs atta-
che would require exceptions to these prohibitions
each time he wanted to conduct an investigation. The
Article 273 prohibition against direct gathering of
business secrets also prevents a Customs attache from
performing his duties, and there is no policy of
granting exceptions to this provision. Finally, under
Article 320(1) Swiss officials are prohibited from
revealing secrets confided to them in their official
capacities?which would limit contacts between a
Customs attache and his counterpart or other Swiss
officials.
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On a more general note, the Swiss also have expressed
the view that the informal cooperation between Swiss
and US officials?which they consider dependent
upon confidentiality and mutual trust?would be un-
duly formalized by the accreditation of a US Customs
attache.
Enforcement
The requirement that a Swiss export license be ob-
tained for the reexport of goods imported under a
Swiss Blue (and contained on the Red Export List)
affords some measure of control over those goods.
Although Swiss export licenses otherwise are granted
routinely, license applications for controlled commod-
ities may be checked against outstanding import
certificates to determine whether approval of the
country of origin is required for reexport and has been
obtained. The export license also allows for monitor-
ing of reexports by Swiss Customs at the border.
The 1982 Foreign Trade Law sets forth the principles
under which violations of the regulatory provisions of
the Law and of the regulations adopted under its
authority may be punished. There are two types of
sanctions?criminal and administrative?that may be
imposed depending upon the nature of the violation,
each of which has its own enforcement mechanism.
Criminal Prosecutions
The first of the enforcement mechanisms is criminal
prosecution, which, as with general criminal cases
takes place in the cantonal court system. This results
from violating one or more of the ordinances imple-
menting the Foreign Trade Law. An example would
be failure on the part of an importer to abide by the
obligations imposed upon him under the import certif-
icate system, such as for documenting the fact of
importation. The US Embassy in Bern reports that a
Swiss firm has been prosecuted for failing to obtain
permission to reexport commodities imported under a
Swiss Blue, although the punishment was limited to a
fine of 5,000 Swiss francs.
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According to the Swiss Federal Administrative Crimi-
nal Law, when a violation has been committed by a
legal entity (such as a corporation), the penal provi-
sions are also applied to the natural person who
carried out the act or who willfully or negligently
failed to avert an offense by a subordinate, contractor,
or representative.
The Foreign Trade Act provides that attempted viola-
tions as well as aiding and abetting the commission of
offenses are punishable. The following maximum
punishments are enumerated: for intentional or negli-
gent violations a fine (currently set at 200,000 Swiss
francs), with particularly egregious intentional viola-
tions further subject to imprisonment of up to one
year.
The Act is not the sole basis for criminal prosecutions
of misconduct related to Swiss technology transfer
controls; general criminal misconduct that is outlawed
by the Swiss Criminal Code (and related to technol-
ogy transfer), such as conspiracy, perjury, or fraud,
also may be prosecuted. The Swiss Criminal Proce-
dures Code addresses such matters as burden of proof
and evidentiary requirements and would apply in
these cases.
The practical effects of such penalties remain to be
demonstrated, although their enactment itself may
have had some deterrent effect. The import certificate
system has been in place in basically the same form
since 1951, but there is little public record of prosecu-
tion or enforcement of that system. Although not
protected from divulgence by any law, criminal prose-
cutions are afforded far less publicity than in the
United States; there apparently have not been any
criminal prosecutions (and only one administrative
imposition of sanctions) under the relatively new
transit controls. Nonetheless, Swiss officials point to
the absence of warnings from US sources as indicat-
ing the effectiveness of those controls.
Administrative Sanctions
The second enforcement mechanism stems from Arti-
cle 7(4) of the Foreign Trade Law, which provides that
misconduct amounting to a violation of the Customs
Act?even if it also violates the Law or its implement-
ing ordinances?is to be punished exclusively under
13
the provisions of the Customs Act (tab I). This is an
important provision because most attempts to evade
or otherwise to frustrate Swiss technology transfer
controls would appear to be violations of the Customs
Act. Certain types of misconduct, such as the failure
to pass along to a subsequent purchaser the obliga-
tions incurred in importing a commodity under a
Swiss Blue, are so narrow and specific that they would
violate only the ordinance governing Swiss Blues.
Most other offenses under these controls, however,
would be of such a general nature as to violate the
Customs Act as well. For example, the misdeclaration
of goods to avoid reexport restrictions or an attempt to
spirit controlled commodities out of Switzerland with-
out clearing customs at all would be offenses under
the Customs Act.
The Customs Act defines a host of actions as customs
infractions. Although these are couched in terms of
"dutiability," this concept includes not only the pay-
ment of fees but also compliance with requirements to
report cross-border traffic. These in turn include such
general requirements as those of placing all goods for
export under customs control and reporting them for
customs processing and compliance with other ordi-
nances of the Federal Government in which the
Customs Service cooperates in enforcement. More
particular infractions also could relate to illegal tech-
nology transfers: importing, exporting, or transiting
goods by means of "impermissible transactions or
unlawful means"; failing to report dutiable goods for
customs processing while crossing the border; and
using an incorrect tariff number so that the duty is
declared too low.
Violations of the Customs Act, or so-called "Bann-
bruch," are not prosecuted as criminal offenses in
court but are subject to administrative penalties levied
by the Customs Service itself. This is not to say that
these penalties are insubstantial: for illegal technology
transfers, fines of up to six times the value of the
commodities involved (as opposed to fines of up to 20
times the evaded duty in general cases) may be levied.
Imprisonment of up to one year also may be imposed.
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The fines in effect are designed to ensure that the
profits from illegal export or transit transactions are
confiscated. The imposition of these penalties may be
administratively appealed to the Customs Service. If
this proves unsuccessful, it next may be challenged in
the Swiss court system, ultimately reaching the Swiss
Federal Tribunal.
To date, there has been at least one instance in which
penalties were imposed against a diverter under the
Customs Act; this case currently is under challenge in
the Swiss Federal courts. Unfortunately, administra-
tive penalties are not made a matter of public record
in Switzerland, and little is known about any addi-
tional cases or general patterns of enforcement.
Transnational Cooperation
The Swiss do not accept the concept of extraterritori-
ality, that is, the application of a country's laws
beyond its borders, except in very narrow circum-
stances. This legal philosophy surfaces frequently in
the area of technology transfer, where even COCOM
allies resist US efforts to apply US regulations to
commodities that have been exported from the United
States. Information about events and persons overseas
often can be vital, however, in tracking controlled
technology that has originated in the United States.
Consequently, there is a need for cooperation from
foreign governments to obtain evidence for investiga-
tions or prosecutions of diversions.
States historically have assisted one another in judi-
cial and related matters by means of "letters
rogatory." These involve a burdensome process
whereby requests for assistance are initiated in the
courts of the requesting state, processed by its prose-
cutorial authorities, transmitted by means of diplo-
matic channels, and finally presented to authorities in
the requested state by private counsel engaged by the
requesting government. These shortcomings prompted
the United States to seek agreements with a number
of countries that would expedite and expand coopera-
tion on judicial matters and enable the appropriate
officials to deal with each other directly.
US-Swiss Criminal Investigation Assistance
The Treaty on Mutual Legal Assistance with Switzer-
land (hereinafter "the Swiss Treaty" or "the Trea-
ty"?tab J) entered into force in January 1977. It was
Secret
the first in what is now a number of pacts in which the
United States and foreign governments have agreed to
procedures by which they will assist each other in
criminal and civil matters that transcend their respec-
tive borders. Perhaps because it was the first negotiat-
ed, the Swiss Treaty is more comprehensive and
detailed than subsequent agreements. Both US and
Swiss officials have suggested that the procedures
outlined in the Treaty and in the indigenous Swiss law
governing judicial assistance be used to aid in the
investigation and prosecution of technology diver-
sions. Although violations of export controls are not
specifically included in the Treaty, there is sufficient
flexibility in the document to invoke its procedures in
seeking the judicial assistance of Swiss authorities.
The Swiss Treaty provides for assistance in both
investigations and court proceedings for certain crimi-
nal offenses. Formal charges need not have been
preferred before assistance may be sought, an impor-
tant consideration where such preliminary informa-
tion as the movements of controlled goods often must
be ascertained before possible diverters can be crimi-
nally charged or even identified. The anticipated
charges must be identified, however, because the use
of testimony, documents, or other information ob-
tained under the Treaty in the investigation or prose-
cution of any offenses other than those identified in
the request is prohibited.
The means of assistance granted under the Treaty is
broad but not unlimited. Assistance may be refused
(or conditioned) if the requested state finds that its
sovereignty, security, or similar essential interests
would be prejudiced. The Treaty applies neither to the
extradition of persons arrested or convicted nor to the
execution of criminal judgments, and assistance is not
rendered to investigations or proceedings involving:
(1) violations that the requested state considers to be
political offenses; (2) violations of military law or laws
relating to military obligations; (3) violations of anti-
trust laws; or (4) violations relating to taxes, customs
duties, monopolies, or exchange controls (other than
gambling, narcotics or illegal arms trafficking, and
related conspiracies or attempts). It is not believed
that the exclusion of offenses relating to customs
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duties would bar assistance in investigations of other
customs offenses, such as the misdeclaration of con-
trolled commodities to evade export or transit
controls.
The pursuit of US organized crime figures (chiefly for
tax evasion) was a principal impetus behind the Swiss
Treaty. Accordingly, compulsory assistance is to be
provided even if the offense is not a crime in both
states and listed on the Schedule (such as the political
offense and antitrust and other fiscal offense excep-
tions described above) if the parties agree that the
request concerns a person who is believed to be a
member of an "organized criminal group." This con-
cept is defined in a manner that does not lend itself to
application in technology transfer cases.
Apart from these general limitations, certain catego-
ries of offenses and specific crimes are excluded. The
Swiss Treaty adopted a unique approach in defining
covered offenses. First, there is a general requirement
of "double criminality," that is, the act must consti-
tute a crime in the requested as well as in the
requesting state. Moreover, the offense involved must
fit within the categories and specific offenses listed in
a schedule that appears at the end of the Treaty. This
requirement may be waived, however, if the requested
state determines that the offense is sufficiently serious
to justify the granting of assistance notwithstanding
its omission from the Schedule (although the require-
ment of double criminality still must be met).
Even this fundamental limitation upon the type of
offense for which assistance will be granted may be
dispensed with in the discretion of the authorities
charged with implementing the Treaty's obligations.
Thus, although detailed standards and procedures are
set forth in the Treaty to guide the Central Authori-
ties in granting assistance, many practical issues are
as much political determinations as strict legal inter-
pretations. This in turn points out the importance of
establishing the type of close and frequent contacts
between the implementing authorities that can en-
courage a liberal application of the discretion to grant
assistance for offenses that are not specifically spelled
out in the Schedule.
15
The appended schedule of offenses includes offenses
against laws prohibiting or restricting traffic in, or
exportation of, "firearms [and] other weapons," which
reasonably could include violations of the COCOM 25X1
Munitions List. Apart from this rather marginal
interpretation, however, the Schedule of offenses does
not include any that specifically encompass illegal
diversion or other misconduct involving controlled
technology. Nevertheless, under the laws and ordi-
nances described earlier in this report, the diversion of
controlled goods either imported into Switzerland
under a Swiss Blue or in transit through Switzerland
is an offense in that country. Thus, most violations of
US export control regulations involving controlled
goods would satisfy the requirement of double crimi-
nality. Whether Swiss authorities consider such of- 25X1
fenses to warrant assistance, however, remains to be
seen. 25X1
The nature of the compulsory assistance that is
rendered in appropriate cases includes:
? Ascertaining the whereabouts of persons.
? Taking the testimony or statements of persons.
? Making available and authenticating judgments and
other judicial records, business records, publicly
available records, and records and evidentiary mate-
rials that are not publicly available.
? Serving judicial writs and other documents and
effecting the appearance of witnesses and experts
before a court of the requesting state.
? Effecting the return of any objects, articles, or other 25x1
assets belonging to the requesting state and obtained
through the commission of offenses falling within
the jurisdiction of that state.
Assistance in proceedings relating to compensation for
damages suffered by persons unjustifiably detained as
a result of actions taken under the Treaty also is
provided for in that Treaty.
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The standards and procedures to be applied in obtain-
ing testimony, documents, and other evidence by
compulsory means generally are those in effect in the
requested state. The requested state may consent,
however, to execution of requests in accordance with
the laws of the requesting state (except for searches
and seizures) so long as the procedure involved is not 25X1
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specifically prohibited in the requested state. As an
example of the general rule, if testimony is sought
from a person who is in the requested state, then he or
she is required to testify (and to produce documents or
other materials) to the same extent as would be
required in the same or a similar type of investigation
or proceeding in the requested state. Similarly, arti-
cles of evidence and related materials are available to
the requesting state, subject to the discretion of the
requested state, to the extent that they are available
to law enforcement officials in the requested state.
Persons appearing before authorities in the requesting
state may not be compelled to testify if they would
have a right to refuse under the law of either state,
however.
The Swiss Treaty represents a unique effort by the
US negotiators to secure a means of obtaining evi-
dence that otherwise would be protected from disclo-
sure under the Swiss Penal Code. Accordingly, if a
person cannot otherwise establish a right to refuse to
testify, he or she may be compelled to testify in the
United States about facts that Swiss banks must
protect or that are "manufacturing or business se-
crets" if the person is not connected with the offense
and if the following additional conditions are met: the
offense is "serious," the information is vital, and
reasonable but unsuccessful efforts to obtain the
evidence by other means have been made. This rather
convoluted procedure reflects a compromise between
traditional Swiss safeguarding of business interests
and US Government efforts to obtain information
about tax evaders and other customers of the Swiss
banking system. The reference to information con-
cerning "business secrets" suggests that this provision
may be used to compel testimony and the production
of information about technology diverters, although it
would not enable the suspected diverters themselves to
be questioned. The use of search and seizure as a
means of obtaining evidentiary materials is also avail-
able to the requesting state, although it "may only be
made in accordance with the law of the place where
the request is executed."
Certain authorities in each country are responsible for
handling requests for assistance under the Treaty as
the "Central Authority." For the United States, this
is the Attorney General or his designee (as is the case
Secret
with all mutual assistance treaties). Responsibility
initially was delegated to the Assistant Attorney
General for the Criminal Division and subsequently to
the Deputy Attorney General and Director of the
Office of International Affairs in the Criminal Divi-
sion. On the Swiss side, the Division of Police of the
Federal Department of Justice and Police in Bern
serves as the Central Authority.
The requirements as to form and content of requests
are outlined in a rather extensive listing in the Treaty.
To date, the Swiss have demonstrated strict adher-
ence to these requirements in deciding whether to
grant requests for judicial assistance. They have
rejected a number of such requests upon the grounds
that the requirements have been poorly addressed or
ignored altogether.
A well-prepared request for judicial assistance entails
thoroughness, however, and thoroughness means that
even the most expeditiously handled request and
response is likely to be a time-consuming process.
Thus, the treaty is most useful in relatively long-term
investigations and prosecutions of diverters, rather
than as a tool for interdicting shipments in the course
of being diverted.
Swiss Law and Regulations on International
Assistance in Criminal Matters
The Swiss have adopted a Law (tab K) and Ordinance
(tab L) to implement their cooperation with other
countries in criminal matters. This law governs sever-
al matters that are specifically excluded in the Mutu-
al Assistance Treaty with the United States but
present in treaties with other countries, such as
extradition and the execution of criminal judgments.
The parts of the Law and Ordinance that could apply
to export control violations are summarized below.
Most of the provisions of the Law and Ordinance that
do relate to implementation of the Swiss Treaty are
merely explanatory of that Treaty. For instance, the
Law describes in considerable detail political and
fiscal offenses, both of which are excluded under the
Treaty. Conversely, an additional requirement is im-
posed that the state requesting assistance guarantees
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A
if
reciprocity (with certain exceptions), although the
structure of the Swiss Treaty ensures that the assis-
tance contemplated is provided on a mutual basis.
The Swiss Treaty envisions the disclosure of business
secrets that otherwise would be illegal under the Swiss
Penal Code, and the Law prohibits such disclosure if
to do so "threatens to cause severe harm to the Swiss
economy and such harm cannot be tolerated because
the offense is not serious enough."
The Law contains a number of protections afforded
persons in Switzerland who are the subject of a
request for judicial assistance. They are entitled to an
attorney, including a court-appointed one if they are
unable or even merely unwilling to obtain one them-
selves. Decisions of the Federal or cantonal authorities
in response to a request are subject to appeal and valid
only if they indicate both the right to that appeal and
the attendant procedures. The Law details the proce-
dures to be followed in executing requests for assis-
tance from foreign states and in pursuing requests on
behalf of Swiss authorities. The Federal Department
of Justice and Police ("Federal Office") is the clear-
inghouse for all requests.
Part II of the Law governs extraditions, including a
number of limitations (the most important of which is
that only foreign nationals may be extradited) and
detailed implementing procedures. Unlike the "double
criminality" requirement for judicial assistance, if the
offense also falls under Swiss jurisdiction, the person
may not be extradited. Protections afforded the ac-
cused include the right to a hearing. Part III of the
Law contains the standards and procedures for trans-
mitting information and granting other types of assis-
tance contemplated in the Treaty with the United
States.
The implementing Ordinance specifies detailed proce-
dures that are to be followed by Swiss officials in
responding to requests for assistance. To the extent
that it addresses definitional or substantive questions,
the Ordinance merely reiterates the standards enunci-
ated in the Treaty.
17
Informal Cooperation
It is difficult to evaluate Swiss support of COCOM
because of their avoidance of any publicity concerning 25X1
their export control system even if it favors COCOM
goals. Nevertheless, many Swiss authorities have sup-
ported COCOM for many years, and a deliberately
informal yet well-established working relationship has
developed between these authorities and US officials.
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The reason for the Swiss insistence upon secrecy is
that cooperation with COCOM member countries is
not in keeping with Swiss neutrality and notions of
national autonomy. Indeed, these traditions limit
Swiss willingness to cooperate regardless of whether
secrecy could be ensured. This is illustrated by Swiss
refusal to engage in "early warning" discussions
about particular shipments in the "courant normal"
that US officials considered to be particularly sensi-
tive. Informal cooperation nonetheless does take place
most frequently in responding to inquiries about Swiss
applicants for US export licenses or recipients of
commodities under distribution licenses. Swiss au-
thorities also occasionally volunteer information to
Embassy contacts about particular commodities that 25X1
have entered Swiss commerce or transit zones without
Swiss Blues or other appropriate documentation.
25X1
US Embassy officials have identified other initiatives
that could be undertaken to increase this cooperation.
An alternative to the rejected "early warning" brief-
ings that is under consideration is "technical discus-
sions" in which US experts periodically would hold
consultations with Swiss export control authorities to
advise them of general concerns about exports of
Swiss technology. Another approach would be for
these experts to offer training seminars about the 25X1
specifications of sophisticated equipment for Swiss
authorities, who for the most part are not familiar
with advanced technology. It is hoped that these
would encourage the authorities to deny export li-
censes to Bloc nations for sophisticated equipment
regardless of whether the limits of the "courant
normal" are a factor. Inasmuch as the Swiss will ship 25X1
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a given amount of technology to the Soviet Bloc under
the "courant normal," attempts should be made to
limit the sophistication of equipment
Another possibility for cooperation is the sharing of
intelligence about specific Soviet activities in industri-
al espionage and technology diversion. At present, US
inquiries and intelligence sharing focus on the mis-
deeds of Swiss and other Western diverters. Sharing
information with the Swiss about the specific threats
posed by advances in Soviet weaponry that were made
possible by the acquisition of Western technology
could heighten Swiss awareness.
Problem Areas
Failure of COCOM Countries To Use Swiss Blues
Ironically, one of the most serious flaws in the Swiss
import certificate system is not of Swiss making.
Swiss officials have long complained about the incon-
sistency with which the various COCOM countries
avail themselves of the Swiss Blue before permitting
the export of controlled technology to Switzerland. As
early as 1951, the Swiss undertook the institutional
compromise of creating an import certificate system
that respects and enforces multilateral reexport con-
trols, reconciling this with their neutrality by making
it available to all countries. Having done so, they are
anxious that countries make use of the system, be-
cause they steadfastly refuse to impose reexport con-
trols in cases where the country of origin has neglect-
ed to request a Swiss Blue. To control reexports in the
absence of a Swiss Blue is seen by the Swiss as
tantamount to joining COCOM and thus an impossi-
ble breach of their neutrality.
According to Swiss trade officials, there is no precise
way of determining export patterns if Swiss Blues are
not requested. Nevertheless, it is clear that the United
States is the COCOM member that most consistently
requests Swiss Blues for all types of controlled equip-
ment.
Secret
Within this general pattern there are differences
among the other COCOM countries. Among Switzer-
land's major trading partners, the Federal Republic of
Germany is the strictest of the European countries in
requiring Swiss Blues and apparently does so rather
consistently for individual licenses for more sophisti-
cated items. Nevertheless, the FRG does not request
Swiss Blues for exports under distribution licenses,
which account for an appreciable proportion of their
exports of high technology. Swiss authorities have
encouraged the FRG to request Swiss Blues in such
circumstances. Receiving no favorable response, they
have reached an independent agreement with a Swiss
subsidiary of a private West German firm to cover its
technology imports under "Global Swiss Blues."
These are import certificates assigned monthly by the
AEA under which trusted importers are permitted to
report imports of a number of individual items refer-
ring to the number of the Global Swiss Blue.
France is more lax about requesting import certifi-
cates. Swiss officials report that there also is a
surprising dearth of requests for Swiss Blues from the
United Kingdom; although the United Kingdom may
not export much sensitive technology to Switzerland,
the Swiss believe that the British Government does
consistently require its companies to obtain Swiss
Blues. Italy stands as a demonstrably poor performer
among Switzerland's major trading partners. Indeed,
there are reports that Italy has used its willingness to
flout the multilateral reexport controls as a competi-
tive advantage in securing related business. Japan
frequently requests Swiss Blues, at times with strict
attention to detail; overall, its use of the Swiss system
appears to be effective.
Among the remainder of the COCOM countries, the
practice is best described as erratic. Neither Belgium
nor the Netherlands exports much high technology to
Switzerland, and they lack consistent policies regard-
ing the sophistication of the items needing a Swiss
Blue. Both countries also represent a problem with
respect to diversions of transit shipments. The Swiss
report that Canada has increased its requests for
Swiss Blues. Norway makes consistent use of Swiss
Blues, although it does not appear to export much
sensitive technology.
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Although estimates necessarily are speculative, the
Swiss believe that their industry is capable of export-
ing to the Bloc sensitive technology of a value consid-
erably in excess of the present "courant normal" of
55-60 million Swiss francs (approximately $37-40
million at current rates of exchange). In 1986, this
figure represented 2.7 percent of total Swiss exports to
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The inconsistent requests from many COCOM coun-
tries is contrasted with the consistent usage of Swiss
Blues by such certain third countries as Austria,
Ireland, and Sweden. The erratic requests by most
COCOM countries that produce critical technology
appear largely to reflect an unofficial shortening of
the Commodity Control List. Swiss Blues are request-
ed for items of technological sophistication but not for
lower-level commodities like personal computers.
Sensing this discrimination, the Swiss refuse to en-
force COCOM controls by issuing Swiss Blues or
otherwise attempting to enforce reexport controls
when COCOM countries themselves fail to do so.
There is yet another respect in which COCOM
countries fail to utilize the Swiss import certificate
system. If an importer of goods brought into Switzer-
land under a Swiss Blue requests permission to reex-
port them, the AEA will petition the export authority
of the country of supply for its consent to the reexport.
In such cases, these authorities (apart from that of the
United States) frequently ignore the request. Some-
times they refuse to act, while stating that reexport
controls are an unwarranted exercise in extraterritori-
al jurisdiction. In such circumstances Swiss authori-
ties claim that reexport permission will be denied. In
yet another demonstration of Swiss neutrality, they
refuse to decide whether a particular reexport is
appropriate under COCOM guidelines.
Another instance of COCOM laxness apparently is
that no COCOM country except the United States
requests the Swiss to perform prelicense checks. The
Swiss consider such checks unnecessary in cases
where an import certificate has been issued (and thus
where the Swiss Government has vouched for the
trustworthiness of the importer). This position, how-
ever, begs the question of whether the Swiss Blue in
fact is an effective control mechanism without at least
occasional follow-up investigations of applicants and
their business activities.
A final point in the utilization of the Swiss reexport
control system by COCOM countries is the practice
whereby most COCOM countries (with the notable
exception of the United States) delegate to Switzer-
land the authority to permit reexports to non?Soviet
Bloc countries. This is not a major problem, because
19
before issuing an export license the Swiss impose upon
end users requirements that appear to be as stringent
as those that would be applied by the COCOM
country of origin. Such requirements include an im-
port certificate and delivery verification and the sub-
mission of an end user certificate.
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Exports of Swiss Technology to the Soviet Bloc
Apart from any practical shortcomings in the Swiss
legal framework for controlling technology transfers,
the most noteworthy institutional weakness remaining
is the legal export of sensitive indigenous technology
to the Soviet Bloc,' the "courant normal." 25X1
Because sensitive indigenous technology appears on
the Swiss Red Export List, an export license must be
obtained prior to shipment. This allows Swiss authori-
ties to monitor such exports and restrict them within
the applicable limit. If the "courant normal" is ex-
ceeded in a given year, exporters are placed on a
waiting list on a first-come-first-served basis.
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' In keeping with COCOM policy changes, the Swiss have relaxed
restrictions for exports of technology to China.
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The limits of the "courant normal" serve as annual
targets rather than as fixed quotas and periodically
are adjusted upward. It has been believed that this
adjustment was simply to account for inflation, but in
fact there are four criteria considered in establishing
the target figure: (1) the growth of total Swiss exports;
(2) the growth of total Swiss exports to the Soviet
Bloc; (3) inflation; and (4) the effect of any revisions to
the COCOM control list. This last factor has impor-
tant policy implications because Swiss officials infor-
mally have indicated that they would consider a
reduction in the control list as one factor?mitigating
toward a smaller target figure?in determining the
"courant normal."
Swiss resistance to eliminating the "courant normal"
is a result of several factors, two of which are of
paramount importance. First, because the United
States has acquiesced in this trade for 35 years, the
Swiss resent pressures to abandon even a relatively
small part of their foreign trade. Second, exports of
Swiss technology to Western countries will continue; a
total embargo of Swiss goods to the Soviet Bloc would
be tantamount to joining COCOM and thus a com-
promise of Swiss neutrality.
This same concern for neutrality and sovereignty
underlies the rejection by the Swiss Government of a
US proposal to hold "prior consultations" during
which American technical experts would alert Swiss
authorities to proposed exports of particularly sensi-
tive technology, in an attempt to forestall such ex-
ports. In keeping with the autonomous nature of their
export control system, the Swiss reserve to themselves
the right to decide what is of critical sensitivity. This,
however, raises the question whether Swiss export
authorities have the requisite technical competence to
determine which sophisticated technology is of critical
importance to Western security. The private trade
association VSM serves as a semiofficial adviser to
the government on technical matters related to export
licensing; there are conflicting reports, however, on
the frequency with which the VSM is consulted on
particular exports under the "courant normal." The
Swiss maintain that, in practice, they have restricted
proposed exports of especially sensitive indigenous
technology on a case-by-case basis apart from the
"courant normal." Unfortunately, it is difficult to
Secret
discern the effectiveness of this informal practice, as
Swiss authorities are constrained from revealing de-
tails of their activities by the laws respecting business
confidentiality.
In any event, informal cooperation and assistance
appear to be the only means of addressing the prob-
lem of the "courant normal." It may be possible to
hold "technical discussions" between Swiss export
authorities and US technical experts to consist of
periodic briefings about especially sensitive types of
technology rather than particular export transactions.
The premise of such discussions would be the threat to
the security of Switzerland as well as other Western
countries that would result from the sale of such
technology to the Soviet Bloc.
Integration of Controlled Components Into Swiss
Systems Exported to the Soviet Bloc
In addition to the export of wholly indigenous Swiss
technology, another troublesome issue involves the
incorporation of COCOM-controlled components into
equipment manufactured in Switzerland for eventual
export. Under current Swiss practice even technology
that was imported into Switzerland under a Swiss
Blue may be integrated into equipment and lawfully
exported to the Soviet Bloc.
The current AEA guidelines provide that for an item
that includes controlled foreign technology to be
considered of Swiss origin the following tests must be
met: (1) the foreign components must account for no
more than 10 to 15 percent of the final value of the
system; and (2) the components must be sufficiently
integrated into the system so that they may not be
removed easily and such removal would seriously
damage the system.
This policy allows components imported under a Swiss
Blue to be exported from Switzerland without the
consent of the country of origin. The Swiss position is
that, by virtue of their integration into equipment of
"Swiss origin," such components have been
"consumed" in Switzerland. Since the obligation im-
posed by the Swiss Blue is that controlled goods either
must be consumed in Switzerland or reexported only
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/?
with the consent of the country of origin, Swiss
authorities consider the obligation to have been ful-
filled.
Of more pressing concern, however, is the use of a
monetary formula to determine whether COCOM-
controlled technology may be exported to embargoed
countries. Such a standard ignores the technical so-
phistication of the integrated components regardless
of how critical they may be to Western security.
Although the second criterion is intended to address
this problem, it is still possible that purchasers from
the Soviet Bloc may procure Swiss systems in order to
obtain and remove sensitive components.
Questionable Enforcement of the Transit Controls
The amended Ordinance governing control of Swiss
transit zones (tab B) establishes a comprehensive
system: no transshipments (including removal from
bonded warehouses in the transit zones) of controlled
commodities are permitted without showing that the
country of origin has approved export to the ultimate
destination. The amendment went into effect on
1 January 1986, and there have been few indications
of how well the system is functioning. In fairness,
should the system be functioning well, there most
likely would be little demonstrable evidence of that.
For instance, deterrence is obviously one aim of the
controls but it would be difficult to prove the negative,
that is, that diverters were avoiding Swiss transit
zones because of the new controls.
Nevertheless, there is reason to question whether the
transit controls are as effective in practice as they
appear in the Ordinance. This stems first from an
administrative exception that has been made to the
crucial requirement to document that shipment to the
ultimate destination is lawful under the export con-
trols of the country of origin. As a rule, Swiss
Customs assume that shipments bound for member
countries of the Economic Community (EC) and the
European Free Trade Association (EFTA) are lawful
under the export regulations of the country of origin,
and thus they routinely permit shipment without
requiring presentation of appropriate documents.
21
This practice is particularly troublesome with respect
to certain EFTA countries such as Austria and Fin-
land that have far less stringent reexport controls than
Switzerland, let alone the COCOM countries. Austria
in particular is a popular diversion route with a
questionable import-certificate system. Thus far,
Austria has resisted imposing any transit controls and
expressly has rejected the Swiss model. If controlled
technology routinely is permitted to transit Switzer-
land en route to Austria, regardless of whether the
shipper can prove that the country of origin has
approved shipment to Austria, the Swiss transit con-
trols contribute nothing more to preventing diversion
than do the considerably weaker Austrian reexport
controls.
Swiss authorities maintain that this practice is neces-
sary in the face of the overwhelming administrative
burden that would be created were the documentation
for every shipment that transits Switzerland to be
checked. Should anything about a shipment to an EC
or EFTA country arouse suspicion, a complete docu-
ment check would be undertaken. Nevertheless, in the
absence of even a cursory check it is difficult to
perceive how any suspicious circumstances would be
discovered. Moreover, should this practice become
generally known, it would dilute any deterrent effect
resulting from the adoption of the transit-control
system.
The second cause for concern about the actual opera-
tion of the transit controls arises from the circum-
stances surrounding the only known instance in which
they have been applied. Although little specific infor-
mation has been forthcoming from the Swiss about
this case, it does appear that a piece of sensitive
equipment (a VAX computer) was impounded in the
Zurich transit zone as it was in the process of being
diverted from Italy to the Soviet Bloc. The crates
apparently were incompletely or inaccurately labeled
and came to the attention of a Customs officer. The
shipper then was requested to provide documentation
that shipment to the Bloc was lawful; after he failed
to do so the shipment was impounded. It now awaits a
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court determination of the authority of Customs to
seize (and ultimately to dispose of) a shipment under
the transit controls.
Conclusions about the functioning of the transit con-
trols are difficult to draw in the absence of crucial
information regarding how the attempted VAX com-
puter diversion first came to the attention of Swiss
Customs. Nevertheless, if the controls had functioned
as designed, the shipping papers should have been
checked by a Customs officer as a matter of course
inasmuch as the shipment was clearly destined for a
Bloc country. Had such been the case, it is reasonable
to assume that Swiss authorities would be willing, if
not anxious, to have it known that the system had
worked as designed. In the absence of indications to
that effect, there is an inference that the discovery of
the near-diversion was entirely serendipitous.
The Swiss in recent years have made significant
improvements in the formal legal controls that may be
imposed upon the reexport and transit of controlled
technology. Traditional Swiss neutrality legitimately
accounts for much of their hesitation in enacting these
controls and for their reluctance to propose further
institutional changes. There appears to be inconsis-
tent, even lackadaisical, use of Swiss controls by most
COCOM countries. In the face of that record it is
Secret
hardly surprising that the Swiss continue to resist
such overtures as the request that they issue Swiss
Blues even if the country of origin does not bother to
request one. The Swiss appear genuinely to believe
that their export control system works at least as well
as that of any COCOM country except the United
States, and there is no readily available evidence to
the contrary.
Nevertheless, the practical functioning of the Swiss
control system has yet to be demonstrated, and,
indeed, the minuscule record available raises serious
questions about the effectiveness of that system.
Rather than attempting to obtain legal or other
formal strengthening of the Swiss system, the United
States should prevail upon Swiss authorities to dem-
onstrate through the informal and discrete channels
already established that their ostensibly strict controls
do in fact function as designed.
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ok
f
A. Federal Law of 25 June 1982 on Foreign Trade Measures
B. Ordinance on Goods Export and Transit (S.R. 946.221)
C. Swiss Ausfuhrliste ("Red Export List")
D. Ordinance on the Exchange of Goods With Foreign Countries
(S.R. 946.201.1)
E. Ordinance on the Surveillance of Imports (S.R. 946.211)
F. Articles 271-273 of the Swiss Criminal Code
G. International Import Certificate ("Swiss Blue")
H. Statement of End Use
I. Selected Provisions of the Swiss Customs Act
J. Treaty Between the United States of America and the Swiss
Confederation on Mutual Assistance in Criminal Matters
K. Federal Law of 20 March 1981 on International Mutual Assistance
in Penal Matters
L. Ordinance of 24 February 1982 on International Mutual Assistance
in Penal Matters
M.
Ordinance of 4 July 1984 on Origin Certification
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APPENDIX A
FEDERAL LAW OF 25 JUNE 1982 ON
FOREIGN TRADE MEASURES
A
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Federal Law on Foreign Trade Measures
of 25 June 1982 (946.201)
? f
The Federal Assembly of the Swiss Confederation,
4; based on the competence of the federal government for foreign
affairs and on Articles 28 and 29 of the Federal Constitution,
considering a message from the Federal Council of 7 December
19801,
resolves:
Art. 1 Protection Against the Effects of Foreign Measures or
Extraordinary Circumstances Abroad
Insofar as foreign measures or extraordinary circumstances abroad
influence the exchange of goods, services or payments for
Switzerland to such an extent that significant Swiss economic
interests
are impaired, the Federal Council can undertake the
following measures for as long as circumstances require:
a. monitor, make subject to permission, restrict or prohibit
the import, export and transit of goods, as well as the
exchange of services;
b. regulate international payments with certain countries and
it necessary order the imposition of fees in order to
bridge price- or exchange-related disruptions in the
exchange of goods, services and payments.
Art. 2 Temporary Application of Agreements
'BBI 1982 I 61
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The Federal Council can temporarily apply agreements on the
exchange of goods, services and payments that are not subject to
referendum, in order to safeguard critical Swiss economic inter-
ests. This authority is also at its disposal in urgent cir-
cumstances, when these agreements provide for joining an interna-
tional organization.
Art. 3 Implementation of Agreements
The Federal Council issues the necessary regulations on the
implementation of agreements on the exchange of goods, services
and payments.
Art. 4 Cooperation of Organizations and Institutions
1The Federal Council and the departments can commission organiza-
tions and institutions especially those involved in the
economy, with the implementation of measures according to Article
1 and of agreements on the exchange of goods, services and pay-
ments.
21n this regard, these organizations and institutions are subject
to the supervision and directives of the Federal Council or of
the administrative units designated by it.
'The entities and employees of these organizations and institu-
tions are subject to the regulations concerning responsibility to
criminal and property law and are subject to
fidentiality of federal government officials.
Art. 5 Fees
The Federal
the pledge of con-
Council can impose fees in order to cover the costs
of enforcement and can authorize the commissioned organizations
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ao
and institutions to impose fees. The rates of these fees require
the approval of the competent department.
Art. 6 Legal Protection
'The Federal Council can stipulate that an appeal of rulings made
on the basis of the regulatory decrees to this law must be
preceded by objection proceedings.
20therwise, the general provisions on the administrative process
and the administration of justice apply.
Art. 7 Penal Provisions
'Whoever deliberately or negligently violates the regulatory
provisions of this law is punished by fines of up to 100,000
francs. In the case of serious, deliberate violation, the per-
petrator can additionally be punished with imprisonment of up to
one year.
2Attempted violations, as well as aiding and abetting are punish-
able. Articles 6 and 7 of the Federal Law on Administrative
Criminal Law' apply.
3The statute of limitations in all cases in five years.
4Violations of the Customs Act2 are punished exclusively accord-
ing to the penal and procedural provisions of that law, even if
the elements of an offense correspond to the provisions of this
article.
sViolations of the regulations concerning origin certification
'SR 313.0
2SR 631.0
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are prosecuted and judged according to the Certificate of Origin
Ordinance of 9 December 19291
6The right to criminal prosecution on the basis of the special
4
provisions of the Criminal Code2 is in all canes reserved.
Art. 8 Criminal Procedure
The prosecution and judgement of the violations are subject to
federal jurisdiction. Article 7 Para. 4-6 are reserved.
Art. 9 Hearing of Advisory Commissions
'The Federal Council appoints a Consultative Commission for
Foreign Trade Policy. It conducts hearings with this commission
on significant issues of foreign trade policy.
'Issues affecting international development cooperation are dealt
with at a joint session with the Advisory Commission for Interna-
tional Development Cooperation.
Art. 10 Reporting and Approval
'The Federal Council reports to the Federal Assembly at least
once a year on important issues of foreign trade policy. How-
ever, approval of administrative policy takes place during the
handling of the Federal Council's annual report.
2In addition, the Federal Council reports to the Federal Assembly
within six months if it has ordained measures (Art. 1) or is
temporarily applying agreements (Art. 2). The Federal Assembly
decides on the basis of the Federal Council report whether the
'SR 946.31
2SR 311.0
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measures should remain in force, be supplemented or be modified,
and whether the agreements should be approved.
3The Federal Council can submit in its reports further agreements
A
on the exchange of goods, services and payments for approval.
Art. 11 Final Provisions
^
'The regulatory provisions to the Federal Resolution of 28 June
19721 on Foreign Trade Measures remain in force insofar as they
have not been repealed prior to their expiration.
2This law is subject to the facultative referendum.
31t goes into effect on 1 January 1983.
'AS 1972 2422
5
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APPENDIX B
ORDINANCE ON GOODS EXPORTS AND TRANSIT
(S.R. 946.221)
?
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Ordinance on Goods Export and Transit
of 7 March 1983 (946.221),
as last amended on 16 December 1985
The Swiss Federal Council,
based on Articles 1, 4 and 5 of the Federal Law of 25 June 1982'
on Foreign Trade Measures,
or
Art. 1 Goods Export2
The export of the goods listed in the Supplement is subject to
the permit obligation according to the Ordinance of 7 March 19833
on the Exchange of Goods with Foreign Countries.
Art. 1a4 Goods Transit
'Insofar as the country of origin restricts the export of the
goods listed in the Supplement, the transit of such goods is
prohibited if the authorized agent cannot prove lawful dispatch,
according to the regulations of the country of origin, to the new
country of destination. Excepted from this are the goods desig-
"SR 946.201
2As last amended by No. I of the Ordinance of 16 December
1985 (AS 1985 2023).
35R 946 201.1
4Added by No. I of the Ordinance of 16 December 1985 (AS
1985 2023)
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nated by the Swiss Department of Public Economy on the basis of
Article h.
2Proof of lawful dispatch to the new country of destination is to
4
be presented during the entry of the goods into the Swiss customs
area. Where justified, an extension can be granted.
* 'Withdrawal from a bonded warehouse is equivalent to transit.
Art. 2 Permit Office
'The permit office is the Import and Export Section; it rules on
the instructions of the Federal Office for Foreign Trade.
2The Import and Export Section can distribute export applications
to the Swiss Association for Chemical Industry or the Swiss
Association of Engineers for assessment. These organizations are
subject to the supervision and directives of the Federal Office
for Foreign Trade insofar as their assessment activity is con-
cerned.
Art. 3 Permit-Free Export
For the export of goods that fall under a tariff number in the
supplement but that are not themselves listed in the supplement,
the exporter must indicate on the export declaration that these
goods are not subject to the permit obligation.
Art. 4 Deliveries to Diplomatic or Consular Delegations
The delivery of goods to foreign diplomatic or consular delega-
tions in Switzerland is considered an export.
Art. 5 Exceptions to the Permit Obligation
Shipments that do not exceed the allowances defined in the sup-
plement do not need an export permit. The export ban on goods
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imported into Switzerland for which the importer has agreed not
to reexport them remains Valid.
Art. 6 Export Restriction
*
The Confederation Department of National Economy stipulates which
of the goods listed in the supplement are subject to restricted
* export in order to assure domestic supplies. Exports can be
permitted insofar as overriding interests so demand. The
affected segments of the business community are to be consulted.
Art. 7 Origin Criteria
'The applicant may indicate Switzerland as the country of origin
in the export application only if the requirements in keeping
with Para. 2 (Origin Criteria) of the Ordinance of 4 July 1984'
on Verification of Origin are met.2
'The import and Export Section can in any case require that the
applicant present verification of origin issued by the competent
certificate of origin office.
Art. 8 Implementation
The Confederation Department of National Economy issues the
necessary enforcement provisions.
Art. 9 Final Provisions
'The Ordinance of 20 February 19743 on Goods Export is repealed.
'SR 946.31
'According to Art. 27, No. 3 of the Ordinance of 4 July 1984
on Verification of Origin, in effect since 1 January 1985 (SR
946.31).
3CAS 1974 581, 1975 2370, 1977 2325 No. I 233
a
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4
The repealed provisions remain applicable to all cases initiated
prior to the repeal.
2This ordinance goes into effect on 1 June 1983.
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r
APPENDIX C
0
SWISS AUSNORLISTE
("RED EXPORT LIST")
(Introduction translated; items on the list
have not been translated from the German)
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Export List
(As of 1 January 1986)
1. Explanation of abbreviations and footnotes:
SR SystematiSche Sammlung des Bundesrechts
V Ordinance
AEA Import and Export Section, Zieglerstrasse 30, 3003
Bern, Tel. [phone], 612375, 612365 and 612339;
telex 911172 sea ch
BEN Federal Office for Energy Economics, Kapellen-
strasse 14, 3003 Bern, Tel. [phone] and 615632
DMV Directorate of the Confederation Military
Administration, 3003 Bern
AL-free Permit-free according to the Export List
Footnote'
4
These goods are permit-free for export or not
subject to the prohibition on transit according to
No. 2a for values up to 2000 francs. However,
this value limit does not apply to goods imported
with an import certificate as well as for
deliveries to the following countries:
Afghanistan North Korea
Albania Poland
Bulgaria Romania
China (PR) Soviet Union
German Democratic Republic Czechoslovakia
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Kampuchea Hungary
Laos Vietnam
Morigolia
Footnote2 These goods can be exported to any country without
a permit, for net weights of up to 20 kg.
2. The Export List (AL) includes:
a) Goods that in accordance with the V of 7 March 1983 on
Goods Export and Transit (SR 946.221)
-- require an export permit from the AEA or
-- are prohibited from transit if the authorized agent
cannot prove lawful dispatch to the new country of des-
tination according to the regulations of the country of
origin during entry into the Swiss customs area (cf.
column AEA).
h) Goods that, in keeping with the V of 18 January 1984 on
Definitions and Permits in the Area of Atomic Energy
(Atomic Ordinance) (SR 732.11) require an export permit
from the BEN (cf. column BEN).
Additional Provision: In this V, in addition to the permit
4 procedure for concrete goods listed in the V and AL, there
is a reporting requirement which is described in Art. 16,
* as follows:
The export of the following goods, which are intended for
facilities for the enrichment or reprocessing of nuclear
fuels or for the production of heavy water, deuterium or
2
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deuterium compounds, must be reported to the BEN no later
than 20 days prior to dispatch:
a. facility components that, according to the use foreseen
for them will he in direct contact with nuclear fuel;
b. facility components without which the process cannot be
conducted for reasons of radiological safety;
c. facility components for the registration and regulation
of material flow, insofar as these components were
designed or produced specifically for that process.
If the report is made later than 20 days prior to the
dispatch, then the facility component may only be exported
with the consent of the BEN.
If a permit according to the V on Goods Export and Transit
(cf. letter a above) is required for export, then the
export permit application to the AEA is considered a report
if the exporter notes on the application that the goods are
subject to the reporting requirement according to the
Atomic Ordinance.
3. Not included are:
4 Goods that require an export permit from the DMV according to
the V of 10 January 1973 on Munitions (SR 514.511).
The permit and export provisions of the DMV apply to the
export of such goods.
4. For goods that require permits both according to the V on
Definitions and Permits in the Area of Atomic Energy and
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according to the V on Goods Export and Transit, the BEN is the
permit office. These goods are listed in the export list in
cursive.
5. For the export of goods that fall under one of the numbers
listed blow, without being subject to the permit obligation on
the basis of existing provisions (not listed in the AL), this
fact is to be confirmed in the export declaration (Art. 11,
Para. 4 of the Atomic Ordinance and Art. 3 of the V on Goods
Export and Transit).
This confirmation is to be made by the note "AL-free," written
in the "Export Permit" column of the export declaration.
6. Violations
a) Goods requiring permits and those prohibited for transit in
keeping with the V on Goods Export and Transit:
Violations of the permit obligation and the transit prohib-
ition are punished in keeping with Art. 7 Para. 4 of the
Federal Law of 25 June 1982 on Foreign Trade Measures (SR
946.201) according to the Customs Act (SR 631.0).
11) Goods requiring permits in keeping with the Atomic
Ordinance:
Violations of the permit obligation are punished according
to Art. 35 Para. 1 of the Federal Law of 23 December 1959
on the Peaceful Use of Atomic Energy and Radiation Protec-
tion (SR 732.0).
4
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APPENDIX D
ORDINANCE ON THE EXCHANGE OF GOODS
WITH FOREIGN COUNTRIES
(S.R. 946.201.1)
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Ordinance on Exchange of Goods with Foreign Countries
of 7 March 1983
The Swiss Federal Council,
based on Articles I, 4 and 5 of the Federal Law of 25 June 19821
on Foreign Trade Measures,
or
Art. 1 Permit Obligation; Implementation
'Insofar as the Federal Council designates goods for which
import, export and transit is dependent on a permit, the Con-
federation Department of Public Economy can order exceptions, or
restrict the measures as pertain to goods imported from certain
countries or exported to certain countries; it specifies the
details of such restrictions and it can in particular stipulate
quotas for individual goods and countries. Conditions can be
linked to the granting of permits.
'If the import, export and transit is restricted in terms of
quantity, permits are generally granted in proportion to the
extent of previous, similar transactions. If a company cannot
produce evidence of previous import, export or transit activi-
ties, but does meet the other requirements in keeping with
Article 3, Letters a and b, then it should nevertheless be taken
into account accordingly within the framework of the existing
quotas.
'SR 946.201
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Art. 2 Permit Office
'The import and Export Division is responsible for granting
permits; it acts on the instructions of the Federal Office for
Foreign Trade. It levies the fees in accordance with the Tariff
*
of 17 December 1956' for the Granting of Permits, Certificates
and Visas in the Exchange of Goods with Foreign Countries.
4 2The Confederation Department of Public Economy can, where neces-
sary, set up other permit offices and enlist the cooperation of
other organizations. It. can authorize permit offices to levy
fees.
3The permit offices and the other organizations whose cooperation
has been enlisted are under the jurisdiction of the Federal
Office for Foreign Trade, which issues to them the necessary
instructions and exercises supervision over them.
Art. 3 Principles for Permits
The following principles in particular Are definitive in the
granting of permits:
a. Permits are granted, upon written application, to persons
and companies that are established for business in the
Swiss customs territory.
b. The persons and companies must be commercially involved in
import, ,export or transit
in the corresponding line of
business in keeping with relevant regulations.
'CAS 1956 1570, 1975 402 No I 1.SR 946.203 Art. 11, Para.
2]. Today: in accordance with the Ordinance of 11 May 1983 on
Fees for the Granting of Permits, Certificates and Visas in the
Exchange of Goods with Foreign Countries (SR 946.203).
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c. Permits are generally not granted to companies and their
organi7ations that are to be protected by the permit obli-
gation.
d. Permits are always granted under the condition that they
can be revoked if the requirements for their granting are
no longer being met or if contrary regulations are subse-
quently issued.
Art. 4 Revocation and Denial of Permits
If the conditions linked to the permit or the regulations or
decrees issued on the basis of the Federal Law of 25 June 1982'
on Foreign Trade Measures are not complied with, the permit
offices are authorized to revoke the granted permits ahead of
time, to fail to renew them, or to deny companies other permits
for a fixed period of time.
Art. 5 Customs Clearance
'The customs office conducts the final or interim clearance of'
goods subject to the permit obligation only if it has been pre-
sented with a corresponding permit or the number of the permit
has been indicated on the clearance application.
2If only the import or export of a type of goods is subject to
the permit obligation, customs clearance for transit or for stock
trade, with the exception of private warehousing, is permissible
without a permit.
Art. 6 Use, Term of Validity of Permits
'SR 946.201
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Permits may he used only by the applicant and for his own
accounts.
2Permits are subject to a time limit. Their term of validity is
no more than one year, including any extensions.
?
Art. 7 Information Obligation
The applicant must furnish true and complete information and
4 provide the organs of the permit offices with relevant informa-
tion, allow perusal of all documents- and records, and provide
access to the business, production and storage premises.
Art. 8 Inspection Authority
The organs entrusted with the enforcement of the Federal Law of
25 June 1982' on Foreign Trade Measures and of its execution
provisions are authorized to demand from the companies that they
are checking for compliance with regulations on the exchange of
goods as well as with the conditions imposed thereon perusal of
all documents and records as well as access to the business,
production and storage premises.
Art. 9 Final Provisions
'The Ordinance of 17 December 19562 on the Exchange of Goods with
Foreign Countries and Federal Council Resolution No. 1 of
17 December 19563 on the import of Goods are repealed. The
"SR 946.201
2FAS 1956 15591
3fAS 1956 1563, 1959 1642, 1964 1364, 1972 129 No. I Bat. r
1975 402 No. I 2, 1977 2325 No. I 21; SR 946.212.7 Art. 21
4
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repealed provisions remain applicable to all cases initiated
prior to the repeal.
2This ordinance goes into effect on 1 June 1983.
5
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APPENDIX E
ORDINANCE ON THE SURVEILLANCE OF IMPORTS
(S.R. 946.211)
*
ir
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ORDINANCE ON THE SURVEILLANCE
OF IMPORTS (SR 946.211)
7 March 1983
The Swiss Federal Council
4
on the basis of articles 1 and 5 of the Federal Law of 25 June
1982 (SR 946.201) on Foreign Trade Measures,
hereby decrees:
Article 1. Import Surveillance
1. The Division of Imports and Exports may issue import
certificates--provided the prerequisities have been met--for the
import of goods for which an official end-use certificate is
demanded by the foreign supplier state. It issues orders by
direction of the Federal Office of Foreign Trade.
2. The Division of Imports and Exports supervises the
importation of those goods for which an import certificate has
been issued.
a
4 Article 2. Basic Principles
* The following basic principles are determinative
0
to the issuance of import certificates:
a. Import certificates are issued only to
established in Swiss customs territory and that are
the Trade Register.
with regard
firms that are
registered in
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b. Goods for which an import certificate has been issued
must be imported immediately into Swiss customs territory, must be
processed through customs, and the fact of importation must be
documented to the Division of Imports and Exports by the deadline
specified in the certificate.
c. If a commodity for which an import certificate has
been issued is conveyed domestically, the obligation undertaken by
the importer of the commodity must be passed to the buyer of the
commodity, in writing, prior to its conveyance.
d. The re-export of goods for which an import
certificate has been issued is allowed only with the permission of
the Division of Imports and Exports, which issues orders under the
direction of the Federal Office of Foreign Trade. Permission is
granted if consent has been given by the country that demanded the
import certificate. It furthermore may be made dependent upon an
end-user certificate.
e. Import certificates expire if they have not been
submitted to the competent foreign authorities within six months
after issuance.
f. The Decree of 7 March 1983 on the Exchange of Goods
with Foreign Countries (SR 946.201.1) applies accordingly.
Article 3. Fees
For the issuance of import certificates, the Division of
Import and Exports collects fees according to the fee schedule of
?
? [the Ordinance of 11 May 1983 on Fees (SR 946.203)] for the
issuance of permits, certifications, and visas in the exchange of
? goods with foreign countries.
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Article 4. Final Provisions
1. The Federal Council Resolution No. 2 of 30 January 1951
(AS 1951 45 463, 1 1956 1569 1572) on Import Surveillance is
hereby rescinded. It remains applicable to situations that arose
prior to its repeal becoming effective.
2. This ordinance takes effect on 1 June 1983.
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APPENDIX F
ARTICLES 271-273 OF THE
SWISS CRIMINAL CODE
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Articles 271-273 of the Swiss Criminal Code (311.0)
Art. 2712
Prohibited Transactions for a Foreign State
1. Whoever, on Swiss soil and without permission, undertakes
transactions for a foreign state that befit an authority or an
official,
whoever undertakes such transactions for a foreign party or
some other foreign organization,
whoever encourages such transactions,
is punished by imprisonment, and in serious cases in a peni-
tentiary.
2. Whoever uses force, cunning or threats to abduct someone
into a foreign country in order to hand him over to a foreign
authority, party or other organization or to subject him to a
danger to life and limb, is punished by imprisonment in a peni-
tentiary.
3. Whoever makes plans for such an abduction is punished by
imprisonment in a penitentiary or prison.
'As last amended by No. 1 of the federal law of 5 October
1950, in force since 5 January 1951 (AS 1951 1 16; FiBl 1949 1
1249.
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Art. 2721
Prohibited intelligence. Political Intelligence
1. Whoever engages in political intelligence activities in the
interest of a foreign country or a foreign party or another
foreign organization to the detriment of Switzerland or its
citizens, inhabitants or organizations or arranges such services,
whoever recruits for such services or encourages them,
is punished by imprisonment.
2. In serious cases, punishment is imprisonment in a peniten-
tiary.
One particularly serious case is when the perpetrator
incites transactions or gives false reports that constitute a
threat to the internal or external security of the Confederation.
Art. 273
Economic Intelligence
Whoever ferrets out a production or business secret in order
to make it accessible to a foreign official entity or a foreign
organization or private enterprise or its agents,
whoever makes a production or business secret available to a
foreign official entity or a foreign organization or private
enterprise or its agents,
? is punished by imprisonment, in serious cases in a peniten-
tiary. Imprisonment can be linked to additional fines.
lAs last amended by No. 1 of the federal law of 5 October
1950, in force since 5 January 1951 (AS 1951 1 16; BRI 1949 1
1249.
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APPENDIX G
INTERNATIONAL IMPORT CERTIFICATE
( " SWI SS BLUE")
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ILLEGIB
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R
Next 5 Page(s) In Document Denied
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APPENDIX H
4
STATEMENT OF END USE
?
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Industrial Products II Telex 911 172 aea ch
Zieglerstrasse 30
CH 3003 Bern
Statement of End-Use
Name and address of Swiss contractor:
Name and address of consignee:
Description of goods (incl. quantity):
Country of destination:
Value free to Swiss border, in Swiss francs.
I (we) certify, for the attention of the Import and Export Division, that the above?described
goods are to be used exclusively in the fore?mentioned country of destination. I (we) will not
reexport these goods without being in possession of the authorization of the country responsible
for delivery (i.e. the country that has shipped the merchandise to Switzerland on supply of a
statement of end?use).
Such an authorization is, however, not necessary for the reexport of the goods to one of the fol?
lowing countries: Belgium, Luxembourg, Denmark, France, Greece, the United Kingdom, Ireland, Italy,
Japan, Canada, the Netherlands, Norway, Portugal, Spain, Turkey and the United States of America.
Name of firm and
Place and date signature of consignee
A5/11,4
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APPENDIX I
SELECTED PROVISIONS OF THE
CUSTOMS ACT
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CUSTOMS LAW (ZG) ( OF 1 OCTOBER 1925)
Article 1
1. Anyone who crosses the customs border or who moves goods across the
customs border must abide by the regulations of customs legislation.
2. Dutiability encompasses'compliance with regulations for traffic across
the border (customs reporting obligation) and the payment of legal fees
A
(customs duty payment obligation).
Article 2
1. The Swiss customs border coincides with the political boundaries of
the country, with the reservation of the following provisions.
2. In view of their locations, Swiss border regions or border realty
[landed property] may be excluded from Swiss customs territory regardless of
surveillance by the customs administration (free zones).
3. The customs duty-free district (duty-free warehouses and duty-free
ports) are treated as foreign countries in terms of customs processing.
4. Foreign State territory, which is incorporated into Swiss customs
territory by virtue of State treaty (free zone [customs union territory]), is
considered to be located within the Swiss customs border.
5. The Federal Council shall establish provisions on free zone [customs]
exclusions [territories] and customs-duty-free districts as well as on the
course of the customs border along boundary waters. This applies with
exception of the provisions of Article 42.
Article 3
0 1. The (import, export, and transit of objects of all kinds, including
animals (which are goods in terms of technical customs processing), across the
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customs border is permitted, to the extent that bans or restrictions are not
provided by law or have not been ordered by the competent authority.
2. The senior customs director may restrict the processing of individual
goods categories to certain customs stations or technical customs processing
regions.
Article 6
a. With Reference to Customs Processing
1. All goods, which are imported or exported, must be delivered to the
competent customs station, must be placed under customs control, and must be
reported for processing.
2. This applies except for measures ordered by this law or or on its
basis. (Version according to Item I, BG [Federal Law] of 6 October 1972, in
force since 1 June 1973; AS 1973 644 650; BB1 [Federal Gazette] II 228.)
Article 7
b. With Reference to Other Obligations
1. Discharging the customs duty obligation also includes compliance
with federal law regulations on commercial statistics, monopolies and
royalties, as well as the other edicts of the Federal Government in whose
implementation the agencies of the customs administration must cooperate.
2. The Federal Council will establish regulations on the certificates
of origin for goods as well as the punitive provisions; it may threaten
prison sentences for the forgery of certificates of origin and similar
actions. (Version according to Figure 7, Appendix, VStrR, in force since 1
January 1975, SR 313.0.)
Article 9
1. Anyone who moves a commodity across the border and the customer are
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subject to mandatory customs reporting.
2. The employer is responsible for the actions performed by his
employees, workers, apprentices, or official messengers in exercise of their
official or business activities, provided he cannot prove that he exercised
every required care to secure compliance with regulations by the above-mentioned
? persons.
3. In the same sense, the family head is responsible for his under-age,
incapacitated Ideclared incompetent], mentally deficient, or mentally ill
house companions.
4.... (Rescinded by Item 7, appendix, VStrR, SR 313.0)
Article 14
a. With Final Processing
The following are duty-free in connection with import, with the excep-
tion of Article 19 and the detailed provisions to be issued by decree:
17. War materiel of the Federal Government, with the proviso that it is
not further sold domestically;
Article 29
1. The party subject to mandatory customs reporting must take all
measures required according to law and decree concerning the implementation
of customs inspection and determination of the customs duty payment obligation.
2. This obligation must be discharged--with the exception of the
provisions of Article 13--primarily in connection with the following:
In road\transportation: persons who carry goods with them or wear them
on themselves;
In air transportation: the commander of the aircraft or the traveller
or their authorized agents;
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4
a
In ship transportation:
1. For travelling baggage, the traveller or his authorized agent;
2. For other goods, the ship administration or the ship commander
[captain];
In railroad transportation:
1. For hand baggage, the traveller or his authorized agent;
2. For registered travel baggage, the traveller, his authorized agent,
or the railroad administration;
3. For other shipments:
a. So long as the goods are under way, the railroad administration;
b. If customs processing is accomplished at the destination station,
the person authorized to dispose of items, his authorized agent, or the
railroad administration.
Regulations established for railroad traffic apply to all transportation
enterprises which have concessions on land;
In postal transportation: the sender or, if he does not meet the
obligation, in his place, the PTT [Postal, Telegraph and Telephone]
enterprises. Designation according to Article 21 of the PTT Organization
Law of 6 October 1960, SR 781.0.)
Article 30
1. Apart from the exceptions provided for in this law or in the
executory decree (SR 631.01; today: V in the Customs Law (ZV), the party
subject to mandatory customs reporting must deliver every goods item cross-
ing the customs border, unaltered in terms of nature and packaging, to the
nearest customs station, without delay, without leaving the customs road and
without stopping under way, and must place said item under customs control.
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2. The driver of the goods must stop without being asked to do so at
surveillance posts near the customs border and must follow the instructions
which are given to him concerning the delivery of the goods to the nearest
V customs station.
3. The person subject to mandatory customs reporting [customs declara-
tion] must deliver certain goods intended for export across the customs
1
4 border to the pertinent customs office and must place the goods under
customs control. This does not apply to the easements determined by decree.
4. Drivers of goods found in the vicinity of the customs border must,
when requested to do so, show evidence that the customs duty was complied
with for the goods they carry.
Article 31
1. Concerning the goods placed under customs control, the party subject
to mandatory customs reporting must submit the processing application and,
depending on the destination of the goods, must file the customs declaration
along with the submission of the documents, permits, and other certifications
required for the particular type of processing procedure in the required
number, form, and by the required deadline.
2. At the same time he must, at his own expense and risk, unload the
freight and baggage items required for inspection, he must bring them to the
4 inspection premises, and he must take all steps necessary for examination
and removal.
3. Anyone who wants to make out customs declarations in a professional
manner, may be required to show evidence as to his suitability and good
reputation. If he loses the suitability or the good reputation or if he
has been sentenced several times for intentional or negligent customs
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violations, the senior customs directorate will decide whether and for what
duration he is to be denied the professional preparation of customs
declarations (version according to Item 7, appendix, VStrR, in force since 1
January 1975, SR 313.0.)
Article 34
1. After acceptance of the processing application, the customs office
will examine its own competence. If it considers it as being not authorized
to initiate the customs processing procedure applied for, the application
must be rejected and it must be left up to the party subject to mandatory
customs reporting to deliver the goods to the nearest competent customs
office or to return them across the customs border or to renounce export.
2. If the customs office considers itself to be competent, it will
examine the customs declaration that was given as to its correctness and
completeness in formal terms and as to its agreement with the accompanying
papers.
If the customs declaration does not agree with the accompanying papers,
if it is not prepared according to regualtions or if it contains insufficient,
ambiguous data or data not in keeping with the customs tariff, it will--
unless otherwise determined by law or decree--be returned to the applicant
for supplementation or correction. If the supplementation or correction is
rejected, then the return of the goods across the customs border or storage
in the nearest customs depot, at the expense of the party subject to
mandatory customs reporting, will be ordered or customs processing will be
accomplished according to the provisions of Article 24.
Article 36
1. Unless otherwise ordered by law, decree, or service regulation, the
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Article 40
1. Foreign goods intended for transfer into free traffic--whose final
processing, at the time of the report filing for import, does not appear
feasible--will be cleared through customs provisionally.
2. Goods may also be cleared through customs provisionally under the
same condition.
3. The provisional customhouse receipt made out by the customs office
is considered to be the customs processing certificate.
4. If there is no further processing application during the time
interval specified by decree, a final customhouse certificate is made out
officially.
Article 41
1. If goods coming from abroad are to be re-exported or if they are to
be routed to another customs office on the border or in the interior or to a
customs depot, then--unless otherwise ordered by law or decree--they must be
processed on request of the person subject to mandatory customs processing or
in accordance with the order issued by the customs administration along with
an escort slip (escort slip goods), in return for the payment or securing of
the customs duty and the other fee. On request of the party subject to
mandatory customs processing or on orders from the customs administration,
escort slip goods can be placed under customhouse seal, in which connection
the customs duty announced will be calculated according to the highest tariff
rate.
2. The person subject to mandatory customs reporting gets an escort
slip as processing certificate. The latter must be reported for cancellation
to the competent customs office within the deadline specified therein and, at
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the same time, the goods item must be displayed in unaltered condition and,
if applicable, with the unbroken customhouse seal. If the escort slip is not
cancelled, then the fees which were secured will be finally settled and
charged. If the escort slip was not cancelled during the export of the goods
item for reasons worthy of consideration, then this can be allowed
subsequently, if, within 60 days following the expiration of the period of
validity of the escort slip, an application is filed to that effect and if
re-export as well as the identity of the goods item can be documented
perfectly (version according to Item I, BG, 6 October 1972, in force since 1
June 1973, AS 1973 644 650; BB1 1972 II 228).
3. The executory decree (SR 631.01; today: V to the Customs Law, ZV)
contains further details on escort slip processing.
Article 45
d. Storage Deadlines
1. The deadline for storage in Confederation warehouses should not
exceed 2 years as of the start of storage for one and the same commodity.
The senior customs directorate is authorized, under special circumstances,
to approve an extension of the deadline to a maximum of 5 years.
2. The storage deadline for private warehouses is at most 2 years.
3. The transfer of goods from a customs warehouse to another warehouse
does not bring about any extension in the legal storage deadlines.
4. In customs-duty-free districts, the duration of storage is unlimited.
5. Goods remaining in Confederation warehouses after expiration of the
storage deadline--which has not been properly disposed of in spite of
admonition--may be sold at auction by the customs administration at the expense
and risk of the person authorized to dispose of them. The demands of the
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Federal Government will be covered from the proceeds. If the person
authorized to dispose of the items is unknown and if he does not report in
within a year after expiration of the storage deadline, in spite of his
* having been requested to do so, the surplus from the proceeds also goes to the
federal treasury.
V 6. Goods located in private warehouses, which have not been moved out
for re-export within the legally determined storage deadline, are immediately
subject to import customs duty processing.
Article 46
e. Removal from Storage
1. Goods can be removed from storage in the customs warehouse:
1. By means of final processing (customs processing or official
clearance for import);
2. By means of further intermediate processing (provisional import
customs processing, escort slip or free pass processing).
3. When goods are removed from storage in duty-free districts or
Confederation warehouses, the customs duty amount and the other fees are
figured on the basis of the goods quantity determined during removal from
storage. In case of removal from storage in private warehouses, the goods
quantity determined during initial placement for storage is decisive.
Article 74
A customs infraction is committed by the following:
1. Anyone who imports, exports, or transits goods subject to customs
processing without express permission in a way not permitted for customs
transactions or using an unlawful landing place or who transports goods
across the border in an unnavigable aircraft;
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-?
ay.
2. Anyone who does not follow the prescribed route to the customs office
designated by him with goods subject to customs processing after reporting to
a border surveillance post;
3. Anyone who fails completely or partly to report for customs process-
ing dutiable goods while crossing the border;
4. Anyone who, after crossing the customs border, prior to arrival at
the border customs office, customs landing place, or customs airfield,
unloads or throws out dutiable goods or makes any kind of change on them
prior to customs processing;
5. Anyone who outside of prescribed official duty hours, imports or
exports dutiable goods, without complying with the regulations issued for the
securing of customs duty collection;
6. Anyone who reduces or endangers the customs duty [payment] by
declaring dutiable goods at too low a rate or by concealing them during
customs inspection;
7. Anyone who specifies a weight for dutiable goods which is more than
3 percent too low;
8. (version according to Item 7, appendix, VStrR, in force since 1
January 1975, SR 313.0) anyone who reduces or endangers customs duty payment
by supplying other incorrect information or by misusing genuine, false, or
forged customs and identity papers or customs-office identification symbols
or identification marks;
9. ARyone who obtains customs duty exemption or customs duty reduction
for goods without the prerequisites applying for customs-duty-free goods
transportation or preferential customs treatment;
10. Anyone who uses goods--for which customs duty exemption or customs
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duty reduction has been approved in view of a specific utilization purpose
after completed denaturing--subsequently for another purpose, anyone who
facilitates such use or who in any other way cancels the effect of denaturing;
11. Anyone who uses goods--for which customs duty exemption or customs
duty reduction was allowed on the basis of correct information?subsequently,
without permission and without followup payment of the customs duty amount
payment due for a purpose not corresponding to customs duty exemption or
customs duty reduction;
12. Anyone who, by means of unlawful action for means, obtains
unjustified refund of customs duties or other fees;
13. Anyone who reduces the customs duty by exchanging dutiable goods
that were processed in the course of escort slip, storage, free-pass, or
advance registration transactions or who alters them in terms of their
component parts without express permission;
14. ([Please see reference, Paragraph 8, above]) anyone who in an
abusive fashion avails himself of customs duty easements granted in
connection with border traffic so as to import or export dutiable goods
without paying duty;
15. ([Please see reference, Paragraph 8, above]) anyone who, in a
customs processing application, gives an incorrect tariff number or who
labels the commodity according to such [an incorrect] number and who in
this fashion manages to get the dutiable item to be declared too low;
16. (Please see reference, Paragraph 8, above]) anyone who, in a
manner other than specified here, withholds customs duties from the Federal
Government to his own advantage or to the advantage of another or anyone who
obtains for himself or another person an unlawful customs advantage or who
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prevents lawful assessment (in the French text: ? ...prevents or seeks to
prevent").
Article 75
1. Customs infractions are punished with fines up to 20 times the
amount of the evaded or endangered customs duty. If that amount cannot be
determined accurately in numerical terms, it shall be determined on the
basis of an estimate.
2. In case of aggravated circumstances, the maximum amount of the
threatened fine is raised by one half. At the same time, imprisonment of
up to 6 months may be ordered.
3. Customs infraction is also punishable if it is carried out negligently
(version according to Item 7, appendix, VStrR, in force since 1 January 1975,
SR 313.0).
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APPENDIX J
TREATY BETWEEN THE UNITED STATES OF AMERICA
AND THE SWISS CONFEDERATION
ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS
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SWITZERLAND
Mutual Assistance in Criminal Matters
Treaty signed at Bern May 25, 1973
And interpretative letters signed at Bern May 25, 1973 and De-
cember 23, 1975;
Ratification advised by the Senate of the United States of America
June 21, 1976;
Ratified by the President of the United States of America July 10,
1976;
Ratified by Switzerland July 7, 1976;
Ratifications exchanged at Washington July 27, 1976;
Proclaimed by the President of the United States of America
August 9, 1976;
Date of entry into force January 23, 1977.
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION
CONSIDERING THAT:
The Treaty between the United States of America and the Swiss
Confederation on Mutual Assistance in Criminal Matters was signed
at Bern on May 25, 1973, along with six exchanges of interpretative
letters of the same date, and an exchange of interpretative letters
dated December 23, 1975, the texts of which Treaty and the inter-
pretative letters, are hereto annexed;
The Senate of the United States of America by its resolution of
June 21, 1976, two-thirds of the Senators present concurring therein,
gave its advice and consent to ratification of the Treaty and the
interpretative letters;
The Treaty and the interpretative letters wer_e ratified by the
President of the United States of America on July 10, 1976, in pur-
suance of the advice and consent of the Senate, and were duly ratified
on the part of Switzerland;
It is provided in Article 41 of the Treaty that the Treaty shall
enter into force 180 days after the date of the exchange of the instru-
ments of ratification;
The instruments of ratification of the Treaty were exchanged at
Washington on' July 27, 1976; and accordingly the Treaty and the
interpretative letters enter into force on January 23, 1977;
(2010) TIAS 8302
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2020 U.S. Treaties and Other International Agreements [27 1:74
Now, THEREFORE, I, Gerald R. Ford, President of the United
States of America, proclaim and make public the Treaty and the
interpretative letters, to the end that they shall be observed and
fulfilled with good faith on and after January 23, 1977, by the United
States of America and by the citizens of the United States of America
and all other persons subject to the jurisdiction thereof.
IN TESTIMONY WHEREOF, I have signed this proclamation and
caused the Seal of the United States of America to lw affixed.
DONE at the city of Washington this ninth day of August in the
year of our Lord one thousand nine hundred seventy-six
fsEAL] and of the Independence of the United States of America
the two hundred first.
GERALD R. FORD
By the President:
CHARLES W ROBINSON
Acting Secretary of State
TIAS 8302
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27 USTI
Switzerland---JudicialAssistance--2""5,1973
Dec. 23, 1975
2021
TREATY BETWEEN THE UNITED STATES OF AMERICA
AND THE SWISS CONFEDERATION
.ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS
The President of the United States of America
and
* the Swiss Federal Council,
Desiring to conclude a treaty on mutual assistance
in criminal matters.
Having appointed for that purpose as their 1
Pleni-
potentiaries:
The President of the United States of America:
Walter J. Stoessel, Jr.
Assistant Secretary of State for European Affairs
Shelby Cullom Davis
Ambassador Extraordinary and Plenipotentiary
of the United States of America to Switzerland
The Swiss Federal Council:
Dr. Albert Weitnauer
Swiss Ambassador to Great Britain
who, having exchanged their respective full powers, which were
found in good and due form, have agreed as follows:
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INDEX
Chapter I
Applicability
Article 1 Obligation to Furnish Assistance
Article 2 Non-Applicability
Article 3 Discretionary Assistance
Article 4 Compulsory Measures
Article 5 Limitations on Use of Information
V
Chapter II
Special Provisions Concerning Organized Crime
Article 6
Article 7
Article 8
General Requirements
Extent of Assistance
Applicable Procedure
Chapter III
Obligations of Requested State in Executing Requests
Article _.9 _____General_Provisiona_for_Executing_Requesta__
Article 10
Article 1].
Article 12
Article 13
Article 14
Article 15
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Duty to Testify in Requested State
Locating Persons
Special Procedural Provisions
Chapter IV
Obligations of Requesting State
Restrictions on Use of Testimony
Exclusion of Sanctions
Protection of Secrecy
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27 usT] Switzerland?Judicial Assistanc,e?rg 225i, 11905 2023
Chapter V
Documents, Records and Articles of Evidence
Article 16
Article 17
Article 18
Article 19
Article 20
Article 21
Court and Investigative Documents
Completeness of Documents
Business Records
Official Records
Testimony to Authenticate Documents
Rights in Articles of Evidence
Chapter VI
Service for Requesting State and Related Provisions
Article 22
Article 23
Article 24
Article 25
Article 26
Article 27
Service of Documents
Personal Appearance
Effect of Service
Compelling Testimony in Requesting State
Transfer of Arrested Persons
Safe Conduct
Chapter VII
General Procedures-
Article 28 Central Authority
Article 29 Content of Requests
Article 30 Language
Article 31 Execution of Requests
Article 32 Return of Completed Requests
Article 33 Inability to Comply
Article 34 Costs of Assistance
Article 35 Return of Articles of Evidence
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Chapter VIII
Notice and Review of Determinations
Article 36 Notice
41( Article 37 Review of Determinations
Chapter IX
4 Final Provisions
TI A S 8302
Article 38
Article 39
Article 40
Article 41
Effect on Other Treaties and
Municipal Laws
Consultation and Arbitration
Definition of Terms
Entry into Force and Termination
Schedule
Offenses for Which Compulsory
Measures are Available
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Switzerland ?Judicial Assistance_May28,1973
Dec. 23, 19Th 2025
Chapter I
APPLICABILITY
Article 1
Obligation to Furnish Assistance
1. The Contracting Parties undertake to afford each
other, in accordance with provisions of this Treaty,
mutual assistance in:
a. investigations or court proceedings in respect
of offenses the punishment of which falls or
would fall within the jurisdiction of the
judicial authorities of the requesting State
or a state or canton thereof;
b. effecting the return to the requesting State,
or a state or canton thereof, of any objects,
articles or other property or assets belonging
to it and obtained through such offenses;
c. proceedings concerning compensation for damages
suffered by a person through unjustified deten-
tion as a result of action taken pursuant to
this Treaty.
2. For the purposes of this Treaty, an offense in the
requesting State is deemed to have been committed if there
exists in that State a reasonable suspicion that acts have
been committed which constitute the elements of that offense.
3. The competent authorities of the Contracting Parties
may agree that assistance as provided by this Treaty will
also be granted in certain ancillary administrative pro-
ceedings in respect of measures which may be taken against
the perpetrator of an offense falling within the purview
of this Treaty. Agreements-to this effect shall be con- -
eluded by exchange of diplomatic notes.
88-313 0 - 77 - 60
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4. Assistance shall include, but not be limited to:
a. ascertaining the whereabouts and addresses of
person_s;
b. taking the testimony or statements of persons;
C. effecting the production or preservation of
judicial and other documents, records, or
articles of evidence;
d. service of judicial and administrative documents;
and
e. authentication of documents.
Article 2
Non-Applicability
1. This Treaty shall not apply to:
a. extradition or arrests of persons accused or
convicted of having committed an offense;
b. execution of judgments in criminal matters;
C. investigations or proceedings:
-(1)--coriceiming- an offense wh-the?i-equeEted
State considers a political offense or an
offense connected with a political offense;
(2) concerning offenses in violation of the
laws relating to military obligations;
(3) concerning acts by a person subject to
military law in the requesting State which
constitute an offense under military law in
that State but which would not constitute an
offense in the requested State if committed
by a person not subject to military law in
the requested State;
(4)- for the purpose-of-enforcing cartel or anti-
trust laws; or
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2027
(5) concerning violations with respect to taxes,
customs duties, governmental monopoly charges
or exchange control regulations other than
the offenses listed in items 26 and 30 of the
Schedule to this Treaty (Schedule) and the
-
4 related offenses in items 34 and 35 of the
Schedule.
4 2. Nevertheless, assistance shall be granted if a request
? concerns an investigation or proceeding referred to in sub-
paragraphs c. (1). (4) and (5) of paragraph 1, if made for
the purpose of investigating or prosecuting a person described
in paragraph 2 of Article 6 and
a. in the case of subparagraphs C. (1) and (4), the
request relates to an offense committed in furtherance
of the purposes of an organized criminal group des-
cribed in paragraph 3 of Article 6, or
b. in the case of subparagraph c. (5), any applicable
conditions of Article 7 are satisfied.
4
3. Contributions to social security and governmental health
plans, even if levied as taxes, shall not be considered as
taxea_for_the_purpose of this Treaty,_
4. If the acts described in the request contain all the elements
of an offense for the investigation or prosecution of which
assistance is required to be or may be granted as well as all
the elements of an offense for which such assistance cannot be
granted, assistance shall not be granted if under the law of
the requested State punishment could be imposed only for the
latter offense unless it is listed in the Schedule.
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Article 3
Discretionary Assistance
1. Assistance-maybe refused to the extent that:
a. the requested State considers that the execution
of the request is likely to prejudice its sovereign-
ty, security or similar essential interests;
b. the request is made for the purpose of prosecuting
a person, other than a person described in para-
graph 2 of Article 6, for acts on the basis of which
he has been acquitted or convicted by a final judg-
ment of a court in the requested State for a sub-
stantially similar offense and any sentence has been
or is being carried out.
2. Before refusing any request pursuant to paragraph 1, the
requested State shall determine whether assistance can be
given subject to such conditions as it deems-necessary. If it
so determines, any conditions so imposed shall be observed in
the requesting State.
Article 4 [I]
Compulsory Measures
1. In executing a request, there shall be employed in the
requested State only such compulsory measures as are provided
in that State for investigations or proceedings in respect of
offenses committed within its jurisdiction.
2. Such measures shall be employed, even if this is not
explicitly mentioned in the request, but only if the acts
described in the request cohtain the elements, other than
intent or negligence, of an offense:
In a letter dated Oct. 19, 1973. Switzerland informed the 'United States that
in the context of art. 4 the use of the German word "soil" has the S:11111 111Calling
as the English word "shall".
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Switzerland?Judicial A ssistance?MaY 23, 1973
Dee. 23, 1975
2029
a. which would be punishable under the law in the
requested State if committed within its juris-
diction and is listed in the Schedule;
or
--b. --- which is- described In _item 26 of_the_Schedule...
4 3. In the case of such an offense not listed in the Schedule,
the Central Authority of the requested State shall determine
whether the importance of the offense justifies the use of
compulsory measures.
4
?
4. A decision as to whether the conditions of paragraph 2
have been met shall be made by the requested State only on
the basis of its own law. Differences in technical designa-
tion and constituent elements added to establish jurisdiction
shall be ignored. The Central Authority of the requested State
may ignore other differences in constituent elements which do
not affect the general character of the offense in that State.
5. In those cases where the conditions of paragraph 2 or 3
have not been met, assistance shall be granted to the extent
that it can be furnished without the use of compulsory measures.
Article 5
Limitations on Use of Information
1. Any testimony or statements, documents, records or articles
of evidence or other items, or any information contained there-
in, which were obtained by the requesting State from the re-
quested State pursuant to the Treaty shall not be used for
investigative purposes nor be introduced into evidence in the
requesting State in any proceeding relating to an offense other
than the offense for which assistance has been granted.
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2. Nevertheless, the materials described in paragraph 1 may,
after the requested State has been so advised and given an
opportunity to make its views known as to the -applicability
of subparagraphs a, b and c of this paragraph, be used in
the requesting State for the investigation or prosecution of
persons who:
a. are or were suspects in an investigation or
defendants in a proceeding for which assistance
was granted and who are suspected or accused of
having committed another offense for which
assistance is required to be granted;
b. are suspected or accused of being participants
in, or accessories before or after the fact to,
an offense for which assistance was granted; or
c. are described in paragraph 2 of Article 6.
3. Nothing in this Treaty shall be deemed to prohibit
governmental authorities in the requesting State from:
a. using the materials referred to in paragraph 1
_in any investigation or proceeding concerning
the civil damages connected with an investigation
or proceeding for which assistance has been
granted; or
b. using information or knowledge educed from the
materials referred to in paragraph 1 in conti-
nuing any criminal investigation or proceeding,
provided that:
(1) for such investigation or proceeding
assistance may be given;
(2) prior to the date of the request for
assistance referred to in paragraph 1
inquiries have already been carried out
for of establishing-an-offensev?
and
(3) the materials referred to in paragraph 1 are
not introduced into evidence.
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Switzerland ?Judicial Assistance ?maY''' '"'"
Dec. 23, 1975
2031
Chapter II
SPECIAL PROVISIONS CONCERNING ORGANIZED CRIME
__Article 6_____
General Requirements
1. The Contracting Parties agree to assist each other in the
fight against organized crime as provided in this Chapter and
with all means otherwise available under this Treaty and other
provisions of law.
2. This Chapter shall apply only to investigations and pro-
ceedings involving a person who, according to the request,
is or is reasonably suspicted to be:
a. knowingly involved in the illegal activities
of an organized criminal group, described in
paragraph 3, and who is:
(1) a member of such a group; or
(2) an affiliate of such a group performing
supervisory or managerial functions or
regularly supporting it or its members
_
by performing other important services;
or
(3) a participant in any important activity
of such a group; or
b. a public official who has violated his official
responsibilities in order to knowingly accomodate
the desires of such a group or its members.
3. For the purposes of this Chapter the term "organized
criminal group" refers to an association or group of persons
combined together for a substantial or indefinite period for
the purposes of obtaining monetary or commercial gains or
profits for itself or for others, wholly or in part by
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2032 U.S. Treaties and Other International Agreements [27 UST
illegal means, and of protecting its illegal activities against
criminal prosecution and which, in carrying out its purposes,
in a methodical and systematic manner:
_
a. at least in part of its activities, commits or
threatens to commit acts of violence or other
acts which are likely to intimidate and are
punishable in both States; and
b. either:
(1) strives to obtain influence in politics or
commerce, especially in political bodies or
organizations, public administrations, the
judiciary, in commercial enterprises,
employers' associations or trade unions or
other employees' associations; or
(2) associates itself formally or informally
with one or more similar associations or
groups, at least one of which engages in
the activities described under subparagraph
b (1).
Article 7
Extent of Assistance
1. Compulsory measures referred to in Article 4 shall also
be employed in the requested State even if the investigation
or proceeding in the requesting State concerns acts which would
not be punishable under the law in the requested State, or
which are not listed in the Schedule, or neither. This para-
graph is subject to the limitations of paragraph 2.
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Switzerland?Judicial Assistance-2"Y 25,1973
Dee. 23, 1975
2033
2. Assistance under this Chapter shall be rendered in investi-
gations or proceedings involving violations of provisions on
taxes on income referred to in Article I of the Convention of
May 24, 1951, for the Avoidance of Double Taxation-with- -----
Respect to Taxes on IncomeNonly if, according to the informa-
tion furnished by the requesting State:
a. the person involved in the investigation or
proceeding is reasonably suspected by it of
belonging to an upper echelon of an organized
criminal group or of participating significantly,
as a member, affiliate or otherwise, in any
important activity of such a group;
b. the available evidence is in its opinion
insufficient, for the purpose of a prosecution
which has a reasonable prospect of success, to
link such person with the crimes committed by
the organized criminal group with which he is
connected in the sense of paragraph 2 of
Article 6; and
c. it has been reasonably concluded by it that
the requested assistance will substantially
facilitafi-t-h-e-neceasful proseeion-ot-such
person and should result in his imprisonment
for a sufficient period of time so as to have
a significant adverse effect on the organized
criminal group.
3. Paragraphs 1 and 2 apply only if the requesting State
reasonably concludes that the securing of the information or
evidence is not possible without the cooperation of the
authorities in the requested State, or that it would place
unreasonable burdens on the requesting State or a state or
canton thereof.
TIAS 2316 ; 2 UST 1753.
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Article 8
Applicable Procedure
_
1. In all cases where this Chapter requires a reasonable
suspicion or a reasonable conclusion, or the opinion of the
requesting State, that State shall furnish to the requested
State information in its possession on the basis of which
such suspicion, conclusion, or opinion has been arrived at.
However, this shall not oblige the requesting State to
identify the persons who have provided such information.
Upon application of the requesting State, the Central
Authority of the requested State shall treat any information
furnished in the request as confidential.
2. ,The Central Authority of the requested State shall have
the right to review the determination of the requesting State
as to the applicability of this Chapter. It need not accept
such determination where the suspicion, conclusion or opinion
underlying such determination has not been made credible.
3. In rendering assistance pursuant to paragraph 2 of Article
-7T-al1?courts-and-authorities-in the requested-State-shall?apply----
such investigative measures as are provided for in its rules
of criminal procedure.
4. Provisions in municipal law which impose restrictions on
tax authorities concerning the disclosure of information shall
not apply to disclosure to all authorities engaged in the exe-
cution of a request under paragraph 2 of Article 7. This para-
graph shall not limit the applicability of provisions for dis-
closure otherwise provided by municipal laws in the Contracting
States.
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2035
Chapter III
OBLIGATIONS OF REQUESTED STATE IN EXECUTING REQUESTS
Article 9
General Provisions for Executing Requests
1. Except as otherwise provided in this Treaty, a request
shall be executed in accordance with the usual procedure
under the laws applicable for investigations or proceedings
in the requested State with respect to offenses committed
within its jurisdiction.
2. The requested State may, upon application by the request-
ing State, consent to apply the procedures applicable in that
State for:
a. investigations or proceedings; and
b. certification and transmission of documents,
records or articles of evidence;
to the extent that such procedures are not incompatible with
the laws in the requested State. A search or seizure may only
be made in accordance with the law of the place where the re-
quest is executed.
3. The appropriate judicial officers and other officials in
each of the two States shall, by all legal means within their
power, assist in the execution of requests from the other State.
Article 10
Duty to Testify in Requested State
1. A person whose testimony or statement is requested under
this Treaty shall be compelled to appear, testify and produce
documents,_records and articles of evidence in the same manner
_
and to the same extent as in criminal investigations or pro-
ceedings in the requested State. Such person may not be so com-
pelled if under the law in either State he has a right to re-
fuse. If any person claims that such a right is applicable in
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2036 U.S. Treaties and Other International Agreements [ 27 UST
the requesting State, the requested State shall, with respect
thereto, rely on a certificate of the Central Authority of
the requesting State.
2. The Swiss Central Authority shall, to the extent that a
right to refuse to give testimony or produce evidence is not
established, provide evidence or information which would dis-
close facts which a bank is required to keep secret or are
manufacturing or business secrets, and which affect a person
who, according to the request, appears not to be connected
in any way with the offense which is the basis of the request,
only under the following conditions:
a. the request concerns the investigation or prosecution
of a serious offense;
b. the disclosure is of importance for obtaining or
proving facts which are of substantial significance
for the investigation or proceeding; and
c. reasonable but unsuccessful efforts have been made
in the United States to obtain the evidence or in-
formation in other ways.
3. Whenever the Swiss Central Authority determines that facts
of the nature referred to in paragraph 2 would have to be dis-
closed in order to comply with the request, it shall request
from the United States information indicating why it believes
that paragraph 2 does not prevent such disclosure. Where, in the
opinion of the Swiss Central Authority, such belief has not been
made credible, it need not accept the determination of the
United States.
4. Any acts of a witness or other person, in connection with
the execution of a request, which would be punishable if com-
mitted against the administration of justice in the requested
State shall be prosecuted in that Statervinaccordance with the
laws and enforcement policies therein, regardless of the pro-
cedure applied in executing the request.
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Article 11
Locating Persons
If in the opinion of the requesting State information as
to the location of persons who are believed to be within the
? territory of the requested State is of importance in an in-
vestigation or proceeding pending in the requesting State, the
requested State shall make every effort to ascertain the where-
abouts and addresses of such persons in its territory.
Article 12
Special Procedural Provisions
1. Upon express application of the requesting State that the
testimony or statement of a person be under oath or affirma-
tion, the requested State shall comply with such request even
in the event no provisions therefor exist in its procedural
laws. In that event the time and form of the oath or affirma-
tion shall be governed by the procedural provisions applicable
in the requesting State. Where an oath is incompatible with
law, an affirmation may be substituted, even though an oath
has been requested, and testimony or a statement so obtained
shall be admitted in the requesting State as though given under
oath.
2. The presence of the suspect or defendant, his counsel or
both, at the execution of a request will be permitted whenever
the requesting State so requests.
3. (a) Where the presence of representatives of an authority
--?
* in the requesting State at the execution of a request is,re-
* quired by its law in order to obtain admissible evidence, the
requested State shall permit such presence.
4
1r
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2038 U.S. Treaties and Other International Agreements [27 UST
(b) Where the requested State agrees that the complexity
of the matter involved or other special factors described in
the request for assistance indicate that such presence is
likely to substantially facilitate a successful prosecution,
it shall also permit such presence.
(c) In other cases the requested State may also permit
such presence upon application by the requesting State.
(d) Nevertheless, if such presence would result in pro-
viding to the United States facts which in Switzerland a bank
is required to keep secret, or facts which are manufacturing
or business secrets therein, Switzerland shall permit such
presence only where the requirements for disclosure in para-
graph 2 of Article 10 have been met.
(e) Switzerland may, furthermore, at any time in the
course of the execution of a request, exclude such represen-
tatives until it has been determined whether such requirements
for disclosure are met.
4. Any person whose presence is permitted under paragraph 2
or 3 shall have, in accordance with the procedures in the
requested State, the right to ask questions which are not
improper under the laws of either State.
5. If in the requested State testimony or statements are
sought in accordance with the procedures in the requesting
State, persons giving such testimony or statements shall be
entitled to retain counsel who may assist them during the
proceeding. Such persons shall be expressly advised at the
beginning of the proceeding of their right to counsel. After
consent has been given by the Central Authority of the re-
questing State, counsel may be appointed, if necessary.
6. If the requesting State expressly requests that a verbatim
transcript be taken7'theexecuting authority shall maks every-.,,,
effort to comply.
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2039
Chapter Iv
OBLIGATIONS OF REQUESTING STATE
Article 13
Restrictions on Use of Testimony
Any testimony obtained pursuant to this Treaty from a
citizen of the requested State, interrogated as a witness and
not advised of his right to refuse testimony under paragraph 1
of Article 10, may not be introduced as evidence against such
witness in a criminal proceeding in the requesting State
unless the prosecution is for an offense against the admi-
nistration of justice.
Article 14
Exclusion of Sanctions
No citizen of the requested State who has refused to give
non-compulsory testimony or information-or-against whom com-
pulsory measures had to be applied in the requested State
pursuant to this Treaty shall be subjected to any legal
sanction in the requesting State solely because he has exer-
cised such rights as permitted under this Treaty.
Article 15
Protection of Secrecy
Evidence or information disclosed by the requested State
pursuant to paragraph 2-of Article 10 shall, if in the opinion
of that State its importance so requires and an application
to that effect is made, be kept from public disclosure to the
fullest extent compatible with constitutional requirements in
the requesting State.
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Chapter V
DOCUMENTS, RECORDS AND ARTICLES OF EVIDENCE
Article 16
Court and Investigative Documents
1. Upon request, the requested State shall make available
to the requesting State on the same conditions and to the
same extent as they would be available to authorities per-
forming comparable functions in the requested State the
following documents and articles:
a. judgments and decisions of courts; and
b. documents, records, and articles of evidence,
including transcripts and official summaries
of testimony, contained in the files of a court
or an investigative authority, whether or not
obtained by grand juries.
2. Items specified in subparagraph b of paragraph 1 shall
be furnished only if they relate solely to a closed case, or
to the extent-determined _by the Central Authority of the
requested State in its discretion.
Article 17
Completeness of Documents
All documents and records to be furnished, whether origi-
nals or copies thereof or extracts therefrom, shall be com-
plete and in unedited form except to the extent paragraph 1
of Article 3 applies or the documents or records would dis-
-41ASAL-rActs described in paragraph 2 of Article 10 and the
requirements of subparagraphs a,46 Ind ettereof-mr4...mat-mpt_
46. Upon application of the requesting State, the requested State
shall make every effort to furnish original documents and
records.
ir
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Article 18
Business Records .
1. If the production of a document, including a book, paper,
statement, record, account or writing, or extract therefrom,
other than an official document provided for in Article 19,
of whatever character and in whatever form is requested, the
official executing the request shall, upon specific request
of the requesting State, require the production of such docu-
ment pursuant to a procedural document. The official shall
interrogate under oath or affirmation the person producing
such document and examine it in order to determine if it is
genuine and if it was made as a memorandum or record of an
act, transaction, occurrence, or event, if it was made in the
regular course of business and if it was the regular course
of such business to make such document at the time of the act,
transaction, occurrence or event recorded therein or within a
reasonable time thereafter.
2. The official shall cause a record of the testimony taken
---- to be prepared and shall annex it to the document.
3. If the official is satisfied as to the matters set forth
in paragraph 1, he shall certify as to the procedure followed
and his determinations and shall authenticate by his attesta-
tion the document, or a copy thereof or extract therefrom, and
the record of the testimony taken. Such certification and
attestation shall be signed by the official and state his
official position The seal of the authority executing the
request shall be affixed.
4. Any person subsequently transmitting the authenticated
shall certify as to the genuineness of the signature
and the official position of the attesting person ol71rthelor?
are any prior certifications, of the last certifying person.
the final certification may be made by:
88-313 0 - 77 - 61
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4 requesting State stationed in the requested
State; or
c. a diplomatic or consular official of the
requested State stationed in the requesting
0 State.
2042 U.S. Treaties and Other International Agreements [27 UST
a. an official of the Central Authority of the
requested State;
b. a diplomatic or consular official of the
41,
5. Where a request under this Article pertains to a pending
court proceeding, the defendant, upon his application, may
be present or represented by counsel or both, and may examine
the person producing the document as to its genuineness and
admissibility. In the event the defendant elects to be present
or represented, a representative of the requesting State or
a state or canton thereof may also be present and put such
questions to the witness.
6. Any document, copy thereof, entry therein or extract there-
from authenticated in accordance with this Article, and not
--otherwise_inadmisSible4 shall be admissible as evidence of
the act, transaction, occurrence or event in any court in the
requesting State without any additional foundation or authenti-
cation.
7. In the evPnt that the genuineness of any document authenti-
cated in accordance with this Article is denied by any party
to a proceeding, he shall have the burden of establishing to
the satisfaction of the court before which the proceeding is
pending that such document is not genuine in order for the
document to be excluded from evidence on such ground.
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I h.e. 23, 1975
2043
Article 19
Official Records
1. Upon request, the requested State shall obtain a copy of
an official record, or an entry therein, and shall have it
authenticated by the attestation of an authorized person.
Such attestation shall be signed by, and state the official
position of, the attesting person. The seal of the authority
executing the request shall be affixed thereto. The procedures
for certification set forth in paragraph 4 of Article 18 shall
be followed.
2. In addition to any provision therefor in the municipal
law of the requesting State, a copy of any official record in
the requested State, or entry therein, shall be admissible in
evidence without any additional foundation or authentication
if authenticated and certified as provided in paragraph 1 and
otherwise admissible.
Article 20
Testimony to Authenticate Documents
1. The Central Authority of the requested State shall have
the authority to summon persons to appear in that State before
representatives of the requesting State or a state or canton
thereof in order to produce documents, records or articles of
evidence supplied or to be supplied by the requested State
and give testimony with respect thereto, whenever, under the
applicable law in the requesting State, that is necessary for
their admissibility in evidence in a criminal proceeding and
NiaanAliember
such State makes a request to that effect.
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2. The Central Authority of the requested State shall have
the right to designate a representative to be present at
A the proceeding under paragraph 1. He shall be entitled to
* object to questions which either:
a. are incompatible with the law and practices
in the requested State; or
b. go beyond the scope of paragraph 1.
V
Article 21
Rights in Articles of Evidence
If the requested State, a state or canton thereof, or a
third party claims title or other rights in documents, records
or articles of evidence, the production of which was requested
or effected, such rights shall be governed by the law of the
place where they have been acquired. An obligation for pro-
duction or surrender under this Treaty shall take precedence
----over-the-rights referred to in the preceding sentence. These
rights, however, remain otherwise unaffected.
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Chapter VI
SERVICE FOR REQUESTING STATE
AND RELATED PROVISIONS
Article 22
Service of Documents
1. The competent authority in the requested State shall
effect service of any procedural document, including a court
judgment, decision or similar document, which is transmitted
to it for this purpose by the requesting State. Unless service
in a particular form is requested, it may be effected by re-
gistered mail. The requested State shall, upon application,
effect personal service or, if consistent with the law in the
requested State, service in any other form.
2. The
process
State,
if the
requested State may refuse
on a person, other than a
calling for his appearance
person to be served is a
to effect service of legal
national of the requesting
as a witness in that State
defendant
__proceeding to which the request relates.
in the criminal
3. A request must be received by the Central Authority of
the requested State not later than 30 days before the date
set for any appearance. This time limit must be taken into
consideration when setting the date for the appearance and
forwarding the request. This period may be shortened by the
Central Authority of the requested State in very urgent cases.
4. Proof of service shall be made by a receipt Gated and
signed by the person served or by a declaration specifying
the form and date of service and signed by the person effecting
it.
10-
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2046 U.S. Treaties and Other International Agreements [27 UST
Article 23
Personal Appearance
a
* 1. When the personal appearance of a person, other than a
defendant in the criminal proceeding to which the request
relates, is considered especially necessary in the requesting
State, such State shall so indicate in its request for service
4 and shall state the subject matter of the interrogation. It
will also indicate the kind and amount of allowances and ex-
penses payable.
2. The executing authority shall invite the person served
to appear before the appropriate authority in the requesting
State and ask whether he agrees to the appearance. The re-
quested State shall promptly notify the requesting State of
I the answer.
?
kr
3. If requested by the requesting State, the requested State
may grant an advance payment to the person agreeing to appear.
This shall be recorded on the document calling for his appear-
ance and taken into consideration by thi requesting State
when making payment.
Article 24
Effect of Service
1. A person, other than a national of the requesting State,
who has been served with legal process calling for his appear-
ance in the requesting State, pursuant to Article 22, shall
not be subjected to any civil or criminal forfeiture, other
legal sanction or measure of restraint because of his failure
to comply therewith, even if the document contains a notice
of penalty.
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2047
2. The effect in the proceeding to which any procedural
document served pursuant to Article 22 relates, arising from
a refusal to accept it or comply therewith, shall be governed
by the law in the requesting State.
3. Service of a procedural document pursuant to Article 22
on a person, other than a national of the requesting State,
does not confer jurisdiction in the requesting State.
Article 25
Compelling Testimony in Requesting State
1. A person appearing before an authority in the requesting
State pursuant to a legal process served under this Treaty
may not be compelled to give testimony, make a statement or
produce a document, record or article of evidence if under
the law in either State he has a right to refuse, or if para-
graph 2 below is applicable. Such a right shall be deemed to
-exist in-the requesyed_State to the extent that it could be
_
invoked there if the acts which are the subject of the in-
vestigation or proceeding had been committed within its juris-
diction.
2. Such a person appearing before an authority in the United
States may only be compelled to give testimony, make a state-
ment or produce a document, record or article of evidence
which would disclose facts described in paragraph 2 of
Article 10 to the extent that the requirements of aubpara-
graphs a, b and c thereof are met.
3. If any person claims that a right to refuse, pursuant to
paragraph 1, exists in the requested State, or invokes the
restrictions of paragraph 2, the requesting State shall in
that regard rely on a certificate of the Central Authority
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20648 U.S. Treaties oliel Other International Agreements [27 twr
of the requested State except that, after due consideration
of the certificate, the requesting State may make its own
determination as to the applicability of subparagraphs a.
? b and o of paragraph 2 of Article 10.
Article 26
*
?
Transfer of Arrested Persons
1. A request pursuant to Article 22 may also be made if a
person held in custody by an authority in the requested State
is needed as a witness or for purposes of confrontation be-
fore an authority in the requesting State.
2. The person in custody shall be made available to the
requesting State if:
a. he consents;
b. no substantial extension of his custody is
anticipated; and
0-.---the-Centra1-Authorityof the_requested_State
determines that there are no other important
reasons against the transfer.
3. Execution of the request may be postponed for as long as
the presence of the person is necessary for a criminal in-
vestigation or proceeding in the requested State.
4. The requesting State shall have authority, and be
obligated, to keep the person in custody unless the requested
State authorizes his release. The requesting State shall
return the person to the custody of the requested State as
soon as circumstances permit or as otherwise agreed. That
person, however, shall have the right to use such remedies
and recourses as are provided by the law in the requesting
State to assure that his custody or return is consistent with
this Article and the Constitution of that State.
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2049
5. The requesting State shall not decline to return a person
transferred solely because such person is a national of that
State.
Article 27
Safe Conduct
1. A person appearing before an authority in the requesting
State pursuant to legal process served under this Treaty
shall not be prosecuted or, except as provided in paragraph 4
of Article 26, be detained or subjected to any other restric-
tion of his personal liberty in that State with respect to
any act or conviction which preceded his departure from the
requested State.
2. The restrictions of paragraph I shall not apply as to a
person of whatever nationality appearing for the purpose of
answering a criminal charge with respect to any act or con-
viction which rs-mentioned-in-the.document calling for his
. .
appearance, or a lesser included offense.
3. The safe conduct provided in this Article shall cease if
ten days after the person appearing has been officially noti-
fied that his appearance is no longer required he has not
used the opportunity to leave the requesting State or, after
having left it, has returned.
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2050 U.S. Treaties and Other International Agreements [27 UST
Chapter VII
GENERAL PROCEDURES
Article 28
Central Authority
1. Requests for assistance shall be handled by a Central
Authority. For the United States, the Central Authority shall
be the Attorney General or his designee. For Switzerland, the
Central Authority shall be the Division of Police of the
Federal Department of Justice and Police in Bern.
1
2. Such requests which are approved by the Central Authority
of the requesting State shall be made by that Authority on
behalf of federal, state or cantonal courts or authorities
which by law have been authorized to investigate or prosecute
offenses.
3. The Central Authorities of the two States may communicate
with -eactr-eth?V-4.1.Pact-14--1'azz....140?..kgrpose of carrying out the
provisions of this Treaty.
Article 29
Content of Requests
1. A request for assistance shall indicate the name of the
authority conducting the investigation or proceeding to which
the request relates and insofar as possible shall also indicate:
a. the subject matter and nature of the investigation
or proceeding and, except in cases of requests for
_
service, a description of the essential acts
alleged or sought to be ascertained;
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2051
b. the principal need for the evidence or information
sought; and
0. the full name, place and date of birth, address
and any other information which may aid in the
identification of the person or persons who are
at the time of the request the subject of the
investigation or proceeding.
2. Such requests, to the extent necessary and insofar as
possible, shall include:
a. information described under subparagraph c of
paragraph 1 concerning any witness or other person
who is affected by the request;
b. a description of the particular procedure to be
followed;
c. a statement as to whether sworn or affirmed
testimony or statements are required;
d. a description of the information, statement or
testimcny sought;
e. a description of the documents, records or
articles of evidence to be produced or preserved
-
f.
as well as a description of the appropriate
person to be asked to produce them and the form
in which they should be reproduced and authenti-
cated; and
information as to the allowances and expenses to
which a person appearing in the requesting State
will be entitled.
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Article 30
- - --
Language
1. Requests for assistance and all accompanying documents
shall be accompanied by a translation into French in the case
of a request to Switzerland, and into English in the case of
a request to the United States. The Swiss Central Authority
may, whenever necessary, request a translation into German
or Italian instead of French.
2. The translation of all transcripts, statements, or docu-
ments made, or documents or records obtained, in executing
the request shall be incumbent upon the requesting State.
Article 31
Execution of Requests
?17--IrTifrtlie?opiriorr of?the -Cenere-l?AutAaerkt-y 04 quested State, State, a request does not comply with the provisions
of this Treaty, it shall immediately so advise the Central
Authority of the requesting State, giving the reasons there-
for. The Central Authority of the requested State may take
such preliminary action as it may deem advisable.
2. If the request complies with the Treaty, the Central
Authority of the requested State shall transmit the request
for execution to the federal, state or cantonal court or
authority having jurisdiction or selected by the Central
Authority as appropriate. The court or authority to which a
request is transmitted shall have all o_f_tllejurisdiction,
4 authority and power in executing the request which it has in
*
investigations or proceedings with respect to an offense com-
mitted within its jurisdiction. In the case of a request by
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2053
Switzerland, this paragraph shall authorize the use of grand
juries to compel the attendance and testimony of witnesses
and the production of documents, records and articles of
evidence.
3. The court or authority to which a request is transmitted
pursuant to paragraph 2 shall, when necessary, issue a proce-
dural document in accordance with its own proceaural law to
require the attendance and statement or testimony of persons,
or the production or preservation of documents, records or
articles of evidence.
4. Nith the consent of the Central Authority of the requesting
State, execution of a request may be entrusted to an appropriate
private party, if circumstances so require.
5. A request shall be executed as promptly as circumstances
permit.
Ari-lcle 32
Return of Completed Requests
1. Upon completion of a request, the executing authority
shall return the original request together with all informa-
tion and evidence obtained, indicating place and time of exe-
cution, to the Central Authority of the requested State. The
latter shall forward it to the Central Authority of the re-
questing State.
2. The delivery of documents, records or articles of evidence
_
may be postponed if-they are needed in an officialaction
pending in the requested State and, in case of documents or
records, copies have been offered to the requesting State.
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Article 33
- Inability to-Comply
The requested State shall promptly inform the requesting
State with a brief statement of the reasons when a request
cannot be fully complied with because:
a. of the limitations of this Treaty;
b. after diligent search, the person whose
testimony or statement is sought or who is
to be served cannot be located or is believed
to be dead;
c. after diligent search, the evidence cannot be
located; or
d. of other physical impediments.
Article 34
Costs of Assistance
1. The following expenses incurred by an authority in the
requested State in carrying out a request shall, upon appli-
cation, be paid or reimbursed by the requesting State: travel
expenses; fees of experts; costs of stenographic reporting by
other than salaried government employees; costs of inter-
preters; costs of translation; and fees of private counsel
appointed with the approval of the requesting State for a
person giving testimony or for a defendant.
2. No reimbursement shall be claimed for any other expenses.
3. All expenses incurred in relation to a request pursuant
to Article 26 shall be borne by the requesting State.
I. No bond, guarantee, or other security for the expected
costs shall be required.
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Article 35
Return of Articles of Evidence
Any original documents, records or articles of evidence,
delivered in execution of a request, shall be returned by the
requesting State as soon as possible, unless the requested
State declares that return will not be required. However,
an authority in the requesting State shall be entitled to
retain articles for disposition in accordance with its law if
such articles belong to persons in that State and if no title
or other rights are claimed in such articles by a person in
the requested State, or if any claims with respect to such
rights have been secured.
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Chapter VIII
NOTICE AND REVIEW OF DETERMINATIONS
Article 36
Notice
Upon receipt of a request for assistance, the requested
State shall notify:
a. any person from whom a statement or testimony
cr documents, records, or articles of evidence
are sought;
b. any suspect ordefendantin a criminal investigation
or proceeding in the requesting State who resides
in the requested State if the municipal law in
the requesting State generally or for admissibi-
lity of evidence 30 requires, and that State so
requests; and
c. any defendant in a criminal proceeding in the
requesting State, where the law in the requested
State requires such notice.
Article 37
Review of Determinations
1. The existence of restrictions in this Treaty shall not
give rise to a right on the part of any person to take any
action in the United States to suppress or exclude any
evidence or to obtain other judicial relief in connection
with requests under this Treaty, except with respect to
paragraph 2 of Article 9; paragraph 1 of Article 10;
Article 13; paragraph 7 of Article 18; paragraph 1 of
Article 25; and Articles 26 and 27.
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2057
2. The right to and procedures for appeal in Switzerland
against decisions of Swiss authorities in connection with
requests under this Treaty shall be regulated in accordance
with this Treaty by domestic legislation.
3. In the case of any claim that a State, either as the
requesting State or the requested State, has failed to comply
with obligations imposed by this Treaty and as to such claim
a remedy is not provided by paragraph 1 or 2, the claimant
may inform the Central Authority of the other State. Where
such claim is deemed by that other State to require explana-
tion, an inquiry shall be put to the first-mentioned State;
if necessary, the matter shall be resolved under Article 39.
HK-313 I) - 77 - fi2
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a
?
2058 U.S. Treaties and Other International Agreements [27 UST
Chapter IX
_FINAL PROVISIONS
Article 38
Effect on Other Treaties and Municipal Laws
1. Whenever the procedures provided by this Treaty would
facilitate assistance in criminal matters between the Contract-
ing Parties provided under any other convention or under the
law in the requested State, the procedure provided by this
Treaty shall be used to furnish such assistance. Assistance
and procedures prolvided by this Treaty shall be without pre-
judice to, and shall not prevent or restrict, any available
under any other international convention or arrangement or
under the municipal laws in the Contracting States.
2. This Treaty shall not prevent the Contracting Parties
from conducting investigations and proceedings in criminal
matters in accordance with their respective municipal laws.
3. The provisions of this Treaty shall take precedence over
any inconsistent provisions of the municipal laws in the
Contracting States.
4. The furnishing of information for use in cases concerning
of May 24, 1951, for
taxes which come
the Avoidance of
Income, shall be
of, except for investigations or proceedings
Chapter II of this Treaty to the extent that
in paragraph 2 of Article 7 are satisfied.
under the Convention
Double Taxation with
governed exclusively
Respect to Taxes on
by the
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Article 39
Consultation and Arbitration
1. When it appears advisable, representatives of the
Central Authorities may exchange views in writing or meet
together for an oral exchange of opinions on the inter-
pretation, application or operation of this Treaty generally
or as to a specific case.
2. The Central Authorities shall endeavor to resolve by
mutual agreement any difficulties or doubts arising as to
the interpretation or application of this Treaty. Any dispute
between the Contracting Parties as to the interpretation or
application of the present Treaty, not satisfactorily resolved
by the Central Authorities or through diplomatic negotiation
between the Contracting Parties, shall, unless they agree to
settlement by some other means, be submitted, upon request
of either Contracting Party, to an arbitral tribunal of three
members. Each Contracting Party shall appoint one arbitrator
who shall be a national of that State and these two arbitrators
shall nominate a chairman who shall be a national and resident
of a third State.
3. If either Contracting Party fails to appoint its arbitrator
within three months from the date of the request for the sub-
mission of the dispute to arbitration, he shall be appointed,
at the request of either Party, by the President of the Inter-
national Court of Justice.
4. If both arbitrators cannot agree upon the choice of a
chairman within two months following their appointment, he
shall be appointed, at the request of either Contracting
Party, by the President of the International Court of Justice.
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Dee. 23, 1375
EIDGENOSSISCHES POLITISCHES DEPARTEMENT
2sern, Vat), 25, 1973.
Excellency:
2161
have the honor to acl:nowlede receipt of your letter
of ;iay 25, 1973, which reats as follo.Js:
"I have the honor to refer to the Trcaty ...,CL4LIvii the
Lnited States of A:acrica anu the 3wis5 Uchfederatioh on
raitual Assistance in Crir.inal ;:atters si,ned on 2), 1973.
and in particular to para,raph 1 of Article 22 thereof.
It iz toe untaer5tanui%; of tic United Ltates Goverh-
meat that the term 'procedural documeots' w:,en 113QU in that
para,;raph and elscn:herc in the 'i'reaty.includes, tut is not
liv,ited to, such docar,enta as auSpocnas and ztmonsts
appear or to apdcar anu produce bocumen63, ahu sum.monses to
appear and answer char_cs, in t-ierequestingtate.
I would appreciate a letter fro., your uxcellency con-
firmint; that the under5tandin, u23cri3ed above 15 also the
unuerstandin6-of the Swiaz FeUerul Coupeil,".___ _
I nave the honor to confirm tact the un,ierstanUin, 5et
forth in your letter accords with that of the twiss Fe6cral
Council.
Accept, Excellency, the renewed assurances of :w./
consideration.
His Excellency
Shelby Cullom Davis
Ambassador of the United States
of America
Bern
Ak
4.
/
Dr. Albert Weitnauer
Ambassador of Switzerland
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-**
2062 U.S. Treaties and Other International Agreements [27 UST
5. References to assistance required to be, or which may
be, furnished pursuant to this Treaty shall be deemed to
include assistance of a compulsory as well as noncompulsorY
nature.
6. References to a "request" or "request for assistance"
shall be deemed to include any attachments and supplements
thereto.
7. References to "acts" in connection with offenses shall
be deemed to include omissions.
8. The term "defendant" shall, unless the context otherwise
indicates, be deemed to include a suspect who is a subject
of an investigation.
9. The term "counsel" shall be deemed to mean counsel
admitted in either State.
10. The term "antitrust laws", as applied to laws in the
--United?Statear?reierA_IO_Ihose provisions compiled in
Chapter 1, Title 15, United States Code, and Chapter 2 of
the same Title up to but not including Section 77a, et seq.
Article 41
Entry into Force and Termination
1. This Treaty shall be ratified and the instruments of
ratification shall be exchanged at Washington as soon as
possible.
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iv-
AL
27 UST]
Switzerland?Judicial Assistance May 25, 1973
?Dec. 23, 1975
2063
2. This Treaty shall enter into force 180 days after the
date of the exchange of the instruments of ratification [1] and
apply with respect to acts committed before or after entry
into force of this Treaty.--
3. This Treaty may be terminated by either Contracting
Party at any time after five years from entry into force,
provided that at least six months prior notice of termina-
tion has been given in writing.
IN WITNESS WHEREOF the Plenipotentiaries have signed this
Treaty.
DONE at Bern, in duplicate, in the English and German lan-
guages, the two texts being equally authoritative,
this 25th of May, 1973.
For the President of the
United States of America:
4?417 (04.43 [3]
For the Swiss Federal Council:
.Tan. 23, 1977.
Walter J. Stoessel
Shelby Cullom Davis
A. Weitnauer
[SEAL]
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2064 U.S. Treaties and Other International Agreements [27 UST
SCHEDULE
OFFENSES FOR WHICH COMPULSORY MEASURES ARE AVAILABLE
s-
1. Murder.
* 2. Voluntary manslaughter.
3. Involuntary manslaughter.
4. Malicious wounding; inflicting grievous bodily harm
intentionally or through gross negligence.
5. Threat to commit murder; threat to inflict grievous
bodily harm.
6. Unlawful throwing or application of any corrosive
or injurious substances upon the person of another.
7. Kidnaping; false imprisonment or other unlawful
deprivation of the freedom or an individual.
6. Willful nonsupport or willful abandonment of a minor
or-other dependent_person when the life of that minor
or other dependent person is or is likely to be
injured or endangered.
9. Rape; indecent assault.
10. Unlawful sexual acts with or upon children under the
age of sixteen years.
11. Illegal abortion.
12. Traffic in women and children.
13. Bigamy.
14. Rubbery.
15. Larceny; burglary; house-breaking or shop-breaking.
16. Embezzlement; misapplication or misuse of funds.
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-011.
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27 UST]
Switzerland?Judicial Assistance?M8"""
Dec. 23, 197S
2065
17. Extortion; blackmail.
__28.___Eeteiving-or-4refteporting-mun y, securities or
other property, knowing the same to have been
embezzled, stolen or fraudulently obtained.
19. Fraud, including:
a. obtaining property, services, money or securities
by false pretenses or by defrauding by means of
deceit, falsehood or any fraudulent means;
b. fraud against the requesting State, its states
or cantons or municipalities thereof;
c. fraud or breach of trust committed by any person;
d. use of the mails or other means of communication
with intent to defraud or deceive, as punishable
under the laws of the requesting State.
20. Fraudulent bankruptcy.
21. False business declarations regarding companies and
cooperative associations, inducing speculatinr the.
unfaithful management, suppression of documents.
22. Briberyj including soliciti_noffering and accepting.
23. Forgery and counterfeiting, including:
a. the counterfeiting or forgery of public or
private securities, obligations, instructions
to make payment, invoices, instruments of credit
or other instruments;
b. the counterfeiting or alteration of coin or
money;
c. the counterfeiting or forgery of public seals,
stamps or marks;
d. the fraudulent use of the foregoing counter-
feited or forged articles;
knowingly and without lawful authority, making
or having in possession any instrument, instru-
mentality, tool or machine adapted or intended
for the counterfeiting of money, whether coin
or paper.
a.
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2036 U.S. Treaties and Other International Agreements [ 27 UST
24. Knowingly and willfully making, directly or through
another, a raTe7Trtitious or 5tts
* or representation in a matter within the jurisdiction
of any department or agency in the requesting State,
and relating to an offense mentioned in this Schedule
or otherwise falling under this Treaty.
25. Perjury, subornation of perjury and other false
statements under oath.
26. Offenses against the laws relating to bookmaking,
lotteries and gambling when conducted as a business.
27. Arson.
28. Willful and unlawful destruction or obstruAion of a
railroad, aircraft, vessel or other means df
transportation or any malicious act done with intent
to endanger the safety of any person travelling upon
a railroad, or in any aircraft, vessel or other means
of transportation.
29. Piracy; mutiny or revolt on board an aircraft or vessel
against?the?authority of the cAptain or commander of
such aircraft or vessel; any seizure or exercise of
control, by force or violence or threat of force or
violence, of an aircraft or vessel.
30. Offenses against laws (whether in the form of tax laws
or other laws) prohibiting, restricting or controlling
the traffic in, importation or exportation, possession,
concealment, manufacture, production or use of:
a. narcotic drugs, cannabis sativa-L, psychotropic
drugs, cocaine and its derivatives;
b. poisonous chemicals and substances injurious
to health;
c. firearms, other weapons, explosive and incen-
diary devices;
when violation of such laws causes the violator to be
liable to criminal prosecution and imprisonment.
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27 UST]
Switzerland?Judicial Assislanc,e ?MaY23,1973
Dee. 23, 1975 2067
31. Unlawful obstruction of court proceedings or proceedings
before governmental bodies or interference with an in-
vestigation of a violation of a criminal statute by the
influencing, bribing, impeding, threatening, or injuring
of any officer of the court, juror, witness, or duly
authorized criminal investigator.
32. Unlawful abuse of official authority which results in
deprivation of the life, liberty or property of any
* person.
33. Unlawful injury, intimidation or interference with
voting or candidacy for public office, jury service,
government employment, or the receipt or enjoyment of
benefits provided by government agencies.
34. Attempts to commit, conspiracy to commit, or participa-
tion in, any of the offenses enumerated in the preceding
paragraphs of this Schedule; accessory after the fact
to the commission of any of the offenses enumerated in
this Schedule.
35. Any offense of which one of the above listeu offenses
is a substantial element, even if, for purposes of
/1[1181diction-of-the united-Statea-Oovernenenty-element
such as transporting, transportation, the use of the
mails or interstate facilities are also included.
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APPENDIX K
FEDERAL LAW OF 20 MARCH 1981 ON
INTERNATIONAL MUTUAL ASSISTANCE IN PENAL MATTERS
4
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SWITZERLAND: LAW ON INTERNATIONAL JUDICIAL ASSISTANCE
IN CRIMINAL MATTERS*
[March 20, 19811
Assembly of the Swiss Confederation, based on articles
of the Federal Constitution, as amended, and having con-
Report of the Federal Council of 8 March 1976, resolves as
The Federal
103 and 114
sidered the
follows:
Part One: General Provisions
Chapter 1: Scope of Application
Section 1: Object and Limits of Cooperation
Art.1 Object
(1) Unless otherwise provided in international agreements, this Law
shall govern all procedures of international cooperation in criminal
matters, and in particular:
(a) extradition of fugitives or convicted persons (Part Two);
(b) judicial assistance in aid of criminal proceedings instituted
abroad (Part Three);
(c) transfer of proceedings and punishment of offenses (Part Four);
(d) execution of foreign criminal judgments (Part Five).
(2) In the application of this Law, the sovereignty, security, and
public order and similar essential interests of Switzerland shall be
taken into account.
(3) This Law shall apply only to criminal matters in which an appeal
to a court can be taken according to the law of the requesting State.
(4) This Law shall confer no right to demand international cooperation
in criminal matters.
Section 2: Denial of Requests
Art.2 Procedural Defects
A request for cooperation in criminal matters shall not be granted if
there are reasons to believe that the foreign proceeding:
(a) does not meet the procedural requirements of the European
?
Convention for the Protection of Human Rights and Fundamental Freedoms
of November 4, 1950, or
*[Translated for International Legal Materials by Bruno A. Ristau, of
the District of Columbia Bar and member of the I.L.M. Editorial Advisory
*Committee, from the French and German texts in the final version of
the Parliament's Drafting Committee, as adopted by the Swiss Parliament
on March 20, 1981. It is anticipated that the effective date of the
Law will be January 1, 1983.
[Switzerland deposited its instrument of ratification of the European
Convention on Mutual Assistance in Criminal Matters (1959) on December 20,
1966. It's instrument of ratification of the European Convention on Ex-
tradition (1957) was deposited the same day. With the enactment of the
above Swiss Law, the Swiss reservations on both of these Conventions will
be withdrawn.]
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political beliefs, membership in a certain social group, race, religion
or nationality, or
(c) could result in aggravating the situation of the fugitive for
any of the reasons mentioned under para. (b), or
(d) involves other serious defects.
?
0
?
?
Art.3 Nature of the Offense
(1) A request shall not be granted if the subject of the proceeding
is an act which, according to Swiss conceptions, has a predominantly
political character, constitutes a violation of the obligation to do
military or similar service, or appears to be directed against the
national defense or military power of the requesting State.
(2) The contention that an act is of a political character shall not
be taken into account if the act:
(a) was aimed at the extermination oz oppression of a segment of
the population on account of nationality, race, religion, or ethnic,
social or political affiliation; or
(b) appears particularly reprehensible because the offender, for
the purpose of extortion or duress, placed or threatened to place
into jeopardy the freedom, life or limb of persons, especially by
hijacking planes, taking hostages or using means of mass extermination.
(3) A request shall not be granted if the subject of the proceeding is
an offense which appears to be aimed at minimizing taxes or which
violates regulations concerning currency, trade or economic policy.
However, a request for judicial assistance under Part Three of this
Law may be granted if the subject of the proceeding is a tax fraud.
Art.4 Significance of the Offense
A request shall be rejected if the significance of the offense does
not justify a carrying out of the proceedings.
Art.5 Extinction of the Penal Claim
(1) A request shall not be granted if:
(a) in Switzerland or in the State where the offense was committed,
a court
- acquitted the defendant or dismissed the proceedings on the
merits, or
- waived, or temporarily.abstainea from, imposing sentence;
(b) the sentence was executed or cannot be executed according to
the law of the State where the sentence was imposed;
(c) the execution of the request requires compulsory measures and
the prosecution or execution of the sentence would be absolutely time-
barred under Swiss law.
(2) Paragraph 1, subparas. (a) and (b), do not apply if the requesting
State asserts that there are grounds for appeal of the final sentence
within the meaning of Art. 229 of the Federal Code of Criminal
Procedure.
Art. 6 Concurrence of Conditions Requiring Denial and Grant
of Cooperation
(1) If the act imputed to the fugitive falls under several articles of
the Swiss penal law, the request may be granted only with respect to
offenses for which there are no reasons for a denial of the request
and if the requesting State guarantees that it will respect any con-
ditions that may be imposed.
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?
(2) Cooperation shall be denied if the proceedings concern an act
which falls under several articles of Swiss or foreign penal law and
if, with reference to any aspect of the case which pervades the totality
of the act, a request could not be granted.
Section 3: Special Rules
Art.7 Swiss Nationals
(1) No Swiss national may, without his written consent, be extradited
or surrendered to a foreign State for prosecution or execution of a
sentence. This consent may be withdrawn up to the time the surrender
is ordered.
(2) Paragraph (1) shall not apply to the transit or return of a Swiss
national who is temporarily surrendered by a third State to Swiss
authorities.
Art.8 Reciprocity
(1) In general, a request shall be granted only if the requesting State
assures reciprocity. The Federal Office for Police of the Federal
Department of Justice and Police (Federal Office) may require a guaran-
tee of reciprocity if it is deemed necessary.
(2) Reciprocity shall not be required specifically in cases of service
of documents or if the execution of a request:
(a) seems advisable by reason of the type of offense or the necessity
of combatting certain offenses;
(b) is likely to improve the situation of the fugitive or the
prospects of his social rehabilitation;
(c) serves to clarify an offense committed against a Swiss national.
(3) The Federal Council may, within the scope of this Law, guarantee
to other States reciprocity.
Art.9 Protection of Privacy
In the execution of requests, the right of privacy shall be safe-
guarded in accordance with legal provisions governing testimonial
privileges. The provisions of Art. 69 of the Federal Code of Criminal
Procedure shall apply to searches and to the sealing of documents.
Art.10 Privacy of Persons Not Involved
in the Criminal Proceedings
(1) Information affecting the right of privacy of persons who, according
to the request, are not involved in the criminal proceedings abroad,
may be given if it appears imperative to establish the facts and if
the seriousness of the offense justifies it.
(2) Disclosure of manufacturing or business secrets in the sense of
Art. 273 of the Penal Code, or of facts which a bank must usually
keep secret, shall not be made if there is reason to believe that such
disclosure would cause serious prejudice to the Swiss economy and it
does not appear justified in relation to the seriousness of the offense.
(3) The executing authority shall obtain the opinion of the Federal
Office before making a decision.
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1342
?
?
Art.11 Legal Definitions
(1) A fugitive within the meaning of this Law is any person suspected,
under investigation, or against whom a sentence has been imposed.
(2) Sentence is any punishment or [penal] measure.
Chapter 2: Applicable Law
Art.12 In General
Unless otherwise provided in this Law, Federal administrative authori-
ties shall apply, by analogy, the Federal Act on Administrative Pro-
cedure, and Cantonal authorities their own procedural rules. Procedural
rules applicable to criminal proceedings shall apply.
Art.13 Tolling of the Statute of Limitations;
Criminal Complaint
(1) The following events shall have effect in Switzerland in proceedings
under this Law:
(a) the tolling of the statute of limitations according to the
law of the requesting State;
(b) a criminal complaint filed with a foreign authority within the
time limit provided for, if a criminal complaint were also required
under Swiss law.
(2) If a criminal complaint is required only under Swiss law, no
sentence may be pronounced or executed in Switzerland if the victim
withdraws the complaint.
Art.14 Credit for Time Served
Art. 69 of the Swiss Penal Code shall be applicable for determining
credit for any pre-trial detention abroad or for detention abroad
caused by a proceeding instituted under this Law.
Art.15 Indemnity
(1) The Federal and Cantonal provisions governing indemnity for
unjustified detention and other detriments shall apply, by analogy,
to a proceeding carried out against a fugitive under this Law in
Switzerland or abroad at the request of a Swiss authority.
(2) The Confederation shall pay the indemnity if a Federal authority
makes or executes a request. The Confederation may charge back the
costs of the indemnity to the Canton, if the latter caused the request
to be made.
Chapter 3: Procedure in Switzerland
Section 1: Authorities and Powers
Art.16 Cantonal Authorities
(1) The Cantons shall participate in the execution of extradition
proceedings. If Federal law does not require otherwise, it is incumbent
upon them to execute requests for other assistance, such as the trans-
fer of proceedings and the execution of criminal judgments. In
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carrying out the provisions of this Law, the Cantons shall be under
the supervision of the Confederation.
(2) The Cantons shall determine the competency, organization and
management of their executing authorities.
Art.17 Federal Authorities
(1) The Federal Department of Justice and Police shall decide matters
under Art. 1, para. 2.
(2) The Federal Office shall receive requests from abroad and present
Swiss requests. It shall execute extradition requests and transmit
for examination by the appropriate Cantonal or Federal authorities
requests for other assistance, the transfer of proceedings and the
execution of criminal judgments if their execution is not manifestly
improper.
(3) [The Federal Office] shall decide the following matters:
(a) requests for guarantee of reciprocity (Art. 8, para. 1);
(b) choice of the appropriate procedure (Art. 19);
(c) propriety of Swiss requests (Art. 30, para. 1).
(4) [The Federal Office] may refer a proceeding in part or in whole
to the Federal authority which would be competent for the prosecu-
tion of the offense if committed in Switzerland.
Art.18 Provisional Measures
Upon the express request of another State, and if the proceeding
according to this Law does not appear manifestly inadmissible or
inappropriate, provisional measures may be ordered to preserve the
status quo, to protect threatened legal interests or to safeguard
evidence. If irreparable harm may result from delay, and if there is
sufficient information to determine whether all the conditions are
met, these measures may be taken upon application of the Federal
Office as soon as a request is announced.
Art.19 Choice of Procedure
If the fugitive is abroad and if the law of the State to which the re-
quest is addressed offers a choice between different procedures,
preference shall be given to that procedure which promises a larger
measure of social rehabilitation.
Art.20 Suspension of a Criminal Proceeding or of
Imposition of Sanctions
(1) Upon application by the Federal Office, the competent authority
A may temporarily suspend the institution of criminal proceedings or the
imposition of sanctions involving another offense against a fugitive
wanted abroad if:
(a) the potential penalty in Switzerland is insubstantial in
comparison to the penalty which is likely to be imposed abroad, or
(b) the imposition of sanctions in Switzerland does not seem
appropriate.
(2) Upon conclusion of the criminal proceedings abroad, the Swiss
authority shall decide whether to resume the suspended proceedings or
the imposition of sanctions.
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Section 2: Assistance of Counsel
Art.21 General Provisions
(1) A fugitive may retain counsel. If he waives assistance of counsel,
or if he is not in a position to retain counsel, counsel shall be
officially appointed for him if the protection of his interests require it.
(2) Other persons who are affected by judicial assistance measures or
who, as victims, are present at investigations, may, if the protection
of their interests require it, be represented by counsel at the
execution of the judicial assistance request as long as the purpose
of the investigation is not prejudiced thereby.
(3) Persons who are not targets of foreign criminal proceedings may
challenge decisions only if a measure concerns them personally or could
prejudice their right of defense in criminal proceedings.
(4) An appeal from An order granting extradition or releasing confidential
information shall stay that order, notwithstanding the provision of
Art. 111, para. 2, of the Federal Law on the Federal Court Organization
("0J").
Art.22 Notice of Court Review
(1) Orders and decisions of Federal and Cantonal authorities shall be
valid only if they provide notice regarding court review.
(2) The notice regarding court review must specify the nature of the
court review allowed, the reviewing court, and the time period within
which court review must be sought.
Art.23 Review of Cantonal Decisions
Cantonal authorities shall provide for court review of decisions of
their executing authorities.
Art.24 Challenges to Orders issued
by the Federal Office
(1) Any person affected by an order issued by the Federal Office
pursuant to this Law, and who has a legally protected interest in having
the order modified or quashed, may challenge the order.
(2) The challenge must be submitted in writing to the Federal Office
within ten days after notice of the order is given. An appropriate
extension of time may be granted to substantiate the challenge or to
correct errors. If the challenge is not substantiated within the
time allotted, it shall be deemed withdrawn.
(3) A challenge shall stay the order only if implementation of the
order would cause irreparable harm to the challenger or if other
weighty grounds justify a stay.
(4) If the challenge cannot be resolved informally, the Federal Office
shall issue a decision. It may postpone the issuance of the decision
until the termination of the proceedings unless a postponement would
cause substantial, irreparable harm to the challenger. Such inter-
locutory decisions are subject to court review.
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Art.25 Court Review of Administrative Determinations
(1) Decisions of Federal authorities of the first instance and of the
highest Cantonal appellate authorities shall be subject to administra-
tive appeal directly to the Federal Tribunal [Supreme Court] (Arts.
97 - 114, OJ) insofar as this Law does not otherwise stipulate.
(2) An appeal against the issuance of a Swiss request to another
4 State shall be permitted only if that State is requested to undertake
criminal proceedings or the execution of a sentence. In such case,
only the fugitive is entitled to appeal.
(3) The Federal Office may file appeals against decrees of the highest
0 Cantonal appellate authorities. The Cantonal authority is entitled to
appeal the refusal of the Federal Office to make a request.
(4) An appeal may also be taken if foreign law has been erroneously
or manifestly improperly applied.
(5) The provisions regarding the suspension of time limits (Art. 34,
para. 1, OJ) shall not apply to the time limits established in this Law.
(6) The Federal Tribunal shall not be limited by the submissions of
the parties.
Art.26 Administrative Recourse
Decisions of the Department under
to review by the Federal Council;
Article 17, paras. 2 and 3, shall
to the Department, whose decision
Article 17, para. 1, shall be subject
decrees of the Federal Office under
be subject to an administrative appeal
shall be final.
Chapter 4: Interstate Procedure
Art.27 General Rules for Requests
(1) Articles 27 - 31 shall apply to all procedures under this Law.
Promulgation of special rules of procedure provided for in other Parts
is reserved.
(2) Foreign requests shall be addressed directly to the Federal Office.
(3) Requests which are addressed to an inappropriate authority shall
4 be forwarded ex officio. The requesting authority shall be so informed.
(4) Detention requests shall be processed without delay.
(5) Reasons must be given for the non-acceptance or refusal of a
request.
Art.28 Form and Content of Requests
(1) Requests shall be submitted in writing.
(2) The request must tate:
(a) the office from which it emanates and, if necessary, the
authority having criminal jurisdiction;
(b) the subject matter of, and the reason for, the request;
(c) the legal characterization of the offense;
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(d) exact and comprehensive information regarding the person who
is the target of the criminal proceedings.
(3) To determine the legal characterization of the offense, the request
shall include:
(a) a summary of the relevant facts, except in cases of requests
for service of process;
(b) the text of the pertinent law in force at the place where the
offense was committed, except in cases of requests for assistance
according to Part Three [of this Law].
(4) Foreign official records need not be legalized.
(5) Foreign requests and their enclosures shall be submitted in German,
French or Italian, or be accompanied by a translation into one of these
languages. Translations shall be officially certified as true.
(6) If a request does not meet the formal requirements, its correction
or amplification may be demanded; the imposition of preliminary measures
will not be affected thereby.
Art. 29 Transmission
(1) The Federal Office may receive requests directly from the Ministry
of Justice of the requesting State.
(2) If preliminary measures are to be taken, or in cases of urgency,
the assistance of the International Criminal Police Organization
(Interpol) may be enlisted or a copy of the written request may be
sent directly to the authority competent for its execution.
Art.30 Swiss Requests
(1) Swiss authorities may not address to another State requests which
they themselves could not execute according to this Law.
(2) The Federal Office shall be competent in cases of requests for
extradition, transfer of proceedings or execution of criminal judgments;
it shall take action at the request of the Cantonal authority.
(3) Conditions which the requested State attaches to the execution of
the request shall be observed by the Swiss authorities.
(4) The Federal Office may decline to issue a request if the signifi-
cance of the offense does not justify the proceedings.
Art.31 Costs
(1) As a rule, foreign requests shall be executed free of charge.
(2) The Federal Council shall fix the conditions under which the
requesting State may be charged the costs in whole or in part.
(3) The expenses for a Swiss request for which another State is
reimbursed shall be charged to the proceedings which gave rise to the
request.
(4) The Federal Council shall fix the sharing of costs between the
Confederation and the Cantons.
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Part Two: Extradition
Chapter 1: Conditions
Art.32 Foreign Nationals
Foreign nationals may be surrendered to another State for prosecution
or incarceration regarding offenses over which it has jurisdiction if
such State requests extradition or if it accepts a Swiss request to
? prosecute or to impose sanctions.
Art.33 Persons under 20 Years
(1) Children and juveniles as defined in the Swiss Penal Code, whose
4 extradition is requested shall, if possible, be repatriated by juvenile
authorities. The same applies for persons between the ages of 18 and
20 if extradition could endanger their development or social rehabili-
tation.
(2) Repatriation shall have the same effects as extradition.
Art.34 Surrender of Objects
(1) If the conditions for extradition are met, objects and valuables
which may serve as evidence or which are derived from the offense
shall be surrendered.
(2) The surrender of objects shall be independent of the surrender of
the fugitive.
(3) Rights of the authorities and bona fide acquired rights of third
parties in objects or valuables which are to be surrendered shall
remain unaffected.
(4) If such rights are challenged, the objects and valuables shall
not be released until the competent court has ruled or the competent
authority has approved the release.
Art.35 Extraditable Offenses
(1) Extradition shall be permitted if, according to the documents
supporting the request, the offense:
(a) is punishable not only under the law of Switzerland but also
under the law of the requesting State with incarceration for a period
4
of at least one year or more, and
(b) is not subject to Swiss jurisdiction.
(2) In determining whether an act is punishable under Swiss law,
special degrees of guilt and conditions for penal responsibility
[under Swiss law] shall not be taken into account, nor shall regard
be had to the applicability as to persons and the time period concerned
of the [Swiss] Military Penal Code regarding penalties for violations
of international law in case of armed conflict, as well as looting
and pillaging.
Art.36 Special Cases
(1) In an exceptional case a fugitive may be extradited for an offense
which comes under Swiss jurisdiction if special circumstances, especially
the possibility of better social rehabilitation, justify it.
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(2) If one of several offenses is an extraditable offense (Art. 35,
para. 1), extradition may be granted for all offenses.
Art.37 Denial
4
(1) Extradition may be denied if Switzerland can assume the prosecution
of the offense or the execution of a penal judgment rendered in the
requesting State and the social rehabilitation of the accused appears
to justify it.
(2) Extradition shall be denied if the requesting State does not
guarantee that the accused person will not be executed in the requesting
State or that he will not be subject to treatment which will impair
his physical integrity.
Art.38 Conditions
(1) A fugitive may be extradited only on condition that the requesting
State:
(a) shall neither prosecute nor sentence nor re-extradite him to
a third State for an offense committed prior to his extradition and
for which extradition was not granted;
(b) shall not deprive him of his liberty on any other pre-existing
ground;
(c) shall not proceed against him before a special court;
(d) shall furnish to the Swiss authorities, upon request, an
officially certified true copy of the decision which terminates the
penal proceedings.
(2) The conditions of subparas. (a) and (b) of para. 1, above, shall
become inapplicable 45 days following the extradited person's conditional
or unconditional release, if that person, having been advised of the
consequences, fails to leave the territory of the requesting State
even though he had an opportunity to do so, or if that person returns
to the territory after having left the same, or if he is returned by
a third State.
Art.39 Extension
If the extradited person is charged with other offenses, the State to
which he was extradited may be permitted, upon a new request, to
prosecute these offenses.
Art.40 Request by Several States
(1) If several States request extradition for the same offense,
extradition shall, as a general rule, be granted to the State where
the offense was committed or where it was principally perpetrated.
(2) If extradition is requested by more than one State for different
offenses, the decision to extradite shall be made with due regard to
all circumstances, especially the gravity of the offenses, the place
of commission, the chronological order in which the requests were
received, the nationality of the fugitive, the prospect of social
rehabilitation, and the possibility of extradition to another State.
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Chapter 2: Procedure
Section 1: Requests
Art.41 Documents Supporting the Request
In addition to the documents specified in Art. 28, para. 3, above,
the following shall be enclosed with the request: the original or
an officially certified true copy of the final judgment, the warrant
of arrest, or of any other document issued in the requesting State,
and having the same effect in accordance with its laws.
Art.42 Requests for Searches and Arrest
Requests for searches and apprehension with a view to extradition
shall state in addition to the items of information specified in Art.
4 28, paras. 2 and 3(a), the following:
(a) the existence of a valid warrant of arrest, the date of its
issuance, and the name of the issuing authority;
(b) the intention of the competent authority to make a request
for extradition.
Art.43 Execution of the Request
The Federal Office shall decide whether and under what conditions it
will execute 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 a National Office of Interpol, the Ministry of
Justice of another State, or on the basis of an international "wanted"
notice in a police bulletin. Art. 52, paras. 1 and 2, shall apply by
analogy.
Art.45 Seizure of Objects
(1) At the time of arrest, objects and valuables which can serve as
evidence in foreign criminal proceedings or which are derived from an
offense shall be seized.
(2) The Cantonal authorities may, if necessary, order that the
arrested person and the rooms be searched.
Art.46 Notice of Execution; Duration of Measures
(1) Arrest and seizure shall be reported to the Federal Office.
(2) They shall continue in effect until a decision concerning arrest
pending extadition is rendered, but not longer than the third
workday after the arrest.
Section 3: Arrest Pending Extradition and Seizure
Art.47 Warrant of Arrest and Other Decrees
(1) The Federal Office shall issue a warrant of arrest for the purpose
of extradition. It may decline to do so, if the fugitive:
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(a) is not likely to avoid extradition and will not endanger the
criminal investigation, or
(b) can prove forthwith that he was not at the place of the
offense when it was committed.
Ay,
(2) If the fugitive is unfit to be placed in detention or if there
are other valid reasons, the Federal Office may order measures other
than detention to assure his presence.
(3) At the same time it shall order which objects and valuables shall
remain seized or are to be seized.
Art.48 Contents
(1) A decree issued under Art. 47 shall contain:
(a) the foreign authority's submissions concerning the identity
of the fugitive and the offense alleged against him;
(b) the name of the authority making the request;
(c) confirmation that extradition is being requested;
(d) notice regarding the right of appeal according to para. 2 below,
and the right-to retain. counsel.
(2) An appeal against such a decree may be lodged within ten days with
the Federal Court, Chamber of Indictments. Art. 214, et seq., of the
Federal Code of Criminal Procedure shall apply by analogy.
Art.49 Execution
(1) Execution of decrees issued under Art. 47 shall fall within the
jurisdiction of the Cantonal authorities.
(2) A warrant of arrest for purposes of extradition shall not be
effective as long as the fugitive is held in preliminary custody or
is serving a penal sentence.
(3) The fugitive sought may not be released from custody nor deported
from Switzerland without the consent of the Federal Office.
Art.50 Cancellation of Detention
(1) The Federal Office shall cancel the detention 18 days after the
arrest if the request for extradition and its enclosures have not been
received. This period may be extended for special reasons up to
40 days.
(2) If the fugitive is already under arrest, the time shall start to
run when he is arrested for purposes of extradition.
(3) Arrest for purposes of extradition may, in exceptional cases, be
lifted at any stage of the proceedings if the circumstances so warrant.
The fugitive may file a petition for release at any time.
(4) Articles 53 - 60 of the Federal Code of Criminal Procedure shall
apply by analogy to the cancellation of detention.
Art.51 Continuation and Renewal of Detention
(1) If the request and its enclosures are received timely, and if
extradition is not inadmissible on its face, detention shall continue
throughout the entire proceedings without further order.
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(2) If the fugitive was released, detention arrest for purposes of
extradition may be reordered.
4
Section 4: Preparation of Extradition Decision
Art.52 Right to be Heard
(1) The request and its supporting documents shall be made available
to the fugitive and his counsel. In initiating the warrant of arrest
for the purpose of extradition, the Cantonal authority shall ascertain
if the fugitive is identical with the person mentioned in the request;
it shall explain to him the conditions for extradition and for informal
surrender, and advise him of his right to appeal, to retain counsel,
or to have counsel officially appointed.
(2) The fugitive shall be examined briefly with respect to his personal
circumstances, especially his nationality and his relationship to the
requesting State, and shall be asked whether and for what reasons he
raises objections to the warrant of arrest or to his extradition.
His counsel may assist in this examination.
(3) Should the extradited person be prosecuted for other offenses or
extradited to a third State, the Federal Office shall cause him to be
examined on the record with respect to the matters listed in para. 2
by a judicial authority of the requesting State.
Art.53 Proof of Alibi
(1) If the fugitive claims that he is able to prove that he was not at
the scene of the offense when it was committed, the Federal Office
shall conduct an appropriate investigation.
(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 signify without delay whether it will maintain the
request.
Art.54 Informal Surrender
(1) If the fugitive places on the record before a judicial authority
a waiver of extradition proceedings and if he requests informal surren-
der, the Federal Office shall order such in the absence of special
considerations.
(2) The waiver may be revoked as long as the Federal Office has not
ordered the surrender.
(3) Informal surrender shall have the effect of extradition.
Section 5: Decisions on Extradition
Art.55 Competence
(1) The Federal Office shall render decisions on extradition.
(2) If the fugitive claims to be charged with a political offense,
or if the investigation presents serious reasons to believe that
the offense is of a political nature, the Federal Court shall decide
the case. The Federal Office shall send the file to the Court with
its submissions. The fugitive shall have an opportunity to be heard.
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Irk
(3) The procedure for court review of administrative determinations
under Art. 25 shall apply by analogy.
Section 6: Execution
Art. 56 Executability
(1) Extradition may be carried out if the fugitive:
(a) explicitly requests immediate extradition, or
(b) if he does not signify within five days after notice of the
decision to extradite is given that he intends to appeal.
(2) If extradition is refused, the Federal Office shall cancel the
arrest for purposes of extradition.
Art.57 Extradition
(1) The Federal Office shall issue the necessary orders with the con-
currence of the Cantonal authorities.
(2) It shall-notify'ihe requesting State of the decision as well as
of the date and place of surrender.
Art.58 Postponement; Provisional Surrender
(1) The surrender may be postponed as long as the person to be extradited
is being prosecuted in Switzerland for other offenses or if he is
serving a penal sentence.
(2) However, provisional surrender of the prosecuted person may be
granted, if:
(a) Swiss criminal proceedings are not adversely affected
thereby, and
(b) the requesting State guarantees to keep the fugitive in custody
during his stay in that State and to return him regardless of his
nationality.
Art.59 Return of Objects
(1) Objects and valuables which the requesting State does not need as
evidence may be retained, particularly if:
(a) the victim lives in Switzerland and if they are to be returned
to him;
(b) a person not involved in the offense makes a showing that he
has in good faith acquired rights to the property in Switzerland and
that his claims to the property are not secured, or
(c) the objects and valuables are necessary for pending criminal
proceedings in Switzerland.
(2) Return of the evidence furnished, free of costs, may be requested
under the same conditions.
Art.60 Tax Liens
(1) If the objects or valuables are handed over and their return is
waived, any customs lien or any other liability imposed under Swiss
customs or tax-laws shall not be asserted if the owner of the property,
who was a victim of the criminal act, is not personally liable for
the tax.
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(2) A waiver of such lien may be conditioned on reciprocity.
Art.61 Time Period for Assumption of Custody
If the requesting State fails to take steps within ten days after
receipt of the extradition decision to assume his custody, the person
ordered extradited shall be released. Upon application of the re-
questing State, and for good cause, the time period may be enlarged
to 30 days.
Art.62 Costs
(1) The Confederation shall bear the costs of arrest and transportation
in extradition to foreign States, to the extent that international
custom imposes such costs on the requested State.
4 (2) Personal property of the fugitive may be used to cover the costs,
to the extent that such property is not delivered up.
Part Three: Other Acts of Assistance
Chapter 1: Conditions
Section 1: In General
Art.63 Basic Principles
(1) Assistance within the meaning of this Part shall comprise the
transmittal of information, as well as the performance of procedural
acts and other official acts permitted under Swiss law, as far as
such acts appear necessary for the proceedings carried out abroad in
criminal matters or serve to retrieve the proceeds of an offense.
(2) Acts of assistance shall, in particular, include: service of
documents, obtaining of evidence, production of records or documents,
search of persons or rooms, seizure, confrontation and transit of
fugitives.
?
(3) Proceedings carried out in criminal matters include the
(a) the prosecution of criminal offenses (Art. 1, para.
(b) administrative measures against an offender;
(c) execution of sentences and granting of pardons;
(d) compensation for unjustified detention.
following:
(3));
(4) Assistance may also be granted to the European Court of Human Rights
and to the European Commission on Human Rights in proceedings relating
to the protection of human rights and fundamental freedoms in criminal
cases.
(5) Assistance aimed at exculpating a fugitive shall be rendered even
if the grounds for exclusion according to Arts. 3 - 5 are given.
Art.64 Compulsory Measures
(1) Measures according to Art. 63 which involve the application of
compulsory measures may be ordered only if the statement of the relevant
facts shows that the offense prosecuted abroad contains the objective
elements of an offense punishable under Swiss law.
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(2) Such measures shall be allowed for the exculpation of a fugitive
even if the offense prosecuted abroad is not punishable in Switzerland.
Art.65 Application of Foreign Law
(1) The following rules shall apply to acts of assistance:
(a) the presence of the parties to the foreign proceedings and
access to the files may be granted if the requesting State so requires
based on its laws;
(b) statements of witnesses or experts shall be affirmed in the
form prescribed by the laws of the requesting State if expressly re-
quired in the request, even if applicable Swiss law does not provide
for an affirmation; the manner of taking evidence that is admissible
in court may be taken into consideration if the requesting State makes
an express request to that effect;
(c) the manner of taking and affirming evidence under para. (b)
must be compatible with Swiss law, and no material disadvantages may
result therefrom to the persons involved;
(d) testimony may also be refused if the law of the requesting
State provides a privilege, or if the giving of testimony would give
rise to criminal or disciplinary sanctions under the laws of that State
or of the State where-the witness resides.
Art.66 Denial of Assistance
Assistance may be denied if the fugitive resides in Switzerland and
proceedings have been initiated here regarding the offense to which
the request refers.
Art.67 Use of Information
(1) Information obtained through judicial assitance shall not be
used for investigative purposes or be introduced into evidence in the
requesting State in any proceeding relating to offenses for which
assistance could not be granted. Any other use of information requires
authorization by the Federal Office.
(2) Permission to inspect files, granted to a foreign State which
intervenes in a Swiss penal proceeding as a civilly-damaged party, is
subject to the same condition.
Chapter 2: Specific Acts of Assistance
Art.68 Service of Documents; General Provisions
(1) Service of documents which a Swiss authority is asked to make may
be effected by personal delivery to the recipient or by mail.
(2) The Federal Council may permit the direct service of documents
from abroad upon the recipient in Switzerland. It shall establish the
conditions for such service.
(3) Service shall be deemed effected if acceptance or refusal to accept
is confirmed in writing.
Art.69 Service of Summons; Safe Conduct
(1) Whoever accepts a summons to appear before a foreign authority
need not comply with such summons.
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44-
(2) Summonses containing threats of coercion will not be served.
(3) Service of a summons may be made subject to the condition that the
recipient shall be guaranteed safe conduct for an appropriate period
of time and that he will not be prevented from freely leaving the
territory of the requesting State. If the recipient so requires, the
authority effecting service shall ask the requesting State to give
appropriate written assurances before proof of service is furnished.
Art.70 Transfer of Arrested Persons
(1) Persons held in custody in Switzerland may be transferred to a
foreign authority for an official investigation if they are guaranteed
safe conduct and if assurances are given that they will be kept in
custody and returned to Switzerland upon request.
(2) Persons who are not accused abroad and Swiss citizens may be trans-
ferred only with their written consent. This shall not be necessary
if a transfer is needed for the execution of a Swiss request or for
confrontation with other persons abroad.
Art.71 Transit
(1) In furtherance of a proceeding carried out in another State and
permitted under this Law, the Federal Office may grant transit [through
Swiss territory] on submission of a request by that State or a third
State without notice to the affected person. Such decision is non-
reviewable. The decision is to be communicated only to the requesting
State.
(2) No authorization shall be required if the detained person is to
be transported by aircraft over Swiss territory without intermediate
landing. In case of an unscheduled intermediate landing, the detained
person may be kept in custody only if:
(a) the conditions for his arrest under Art. 44 (of this Law)
are given, or
(b) the State arranging for the transport has previously informed
the Federal Office by indicating the reason for the transfer and the
offense justifying it.
(3) In case of measures taken for the prosecution or for the execution
of sentences in Switzerland, transit may be interrupted only with the
approval of the Federal Office.
Art.72 Maintaining of Custody
(1) If a detained person is surrendered to Swiss authorities in the
course of an act of assistance, the warrant for his arrest issued
abroad shall also be valid in Switzerland for the period of his stay
in Switzerland.
(2) During transit, the fugitive shall be kept in custody by virtue of
the order for transit given by the Federal Office.
(3) In such cases, the detained person may be released only with the
concurrence of the competent foreign authority.
Art.73 Safe Conduct in Switzerland
(1) A person who customarily resides abroad, and who appears in
Switzerland pursuant to a summons in a criminal case, may be neither
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prosecuted nor restricted in his personal freedom with respect to
acts committed prior to his entry into Switzerland.
-or
(2) A fugitive shall enjoy no safe conduct regarding offenses specified
in the summons.
(3) The safe conduct provided in para. 1 shall cease when the person
leaves Switzerland, but not later than three days after dismissal by
the summoning authorities.
Art.74 Surrender of Objects
(1) Upon request, objects, particularly documents and valuables which
may be seized under Swiss law, as well as official records and decisions,
shall be placed at the disposal of the authorities competent for
criminal matters or for issuing or withdrawing drivers' licenses, as
far as these objects may be of significance in their decision.
(2) Other objects and valuables originating from an offense may be
surrendered for the purpose of returning them to the owner even if he
is not involved in the proceedings in the requesting State.
(3) Rights asserted by authorities and third parties shall be governed
by Art. 34, paras. (3) and (4); Art. 59 shall apply to the return and Art.
60 to tax liens.
Chapter 2: Procedure
Section 1: Requests for Assistance
Art.75 Competence
(1) Requests for assistance may be submitted by authorities which are
competent to investigate and prosecute offenses or to render decisions
in other proceedings to which this Law applies.
(2) Where the law of a requesting State imposes upon the parties them-
selves the obligation to perform certain procedural acts, Swiss
authorities may honor requests from the parties.
Art.76 Contents and Documents
In addition to the information and documents required by Art. 28, the
following shall be specified in, or added to, a request:
(a) as concerns requests for service: name and address of the
recipient, his standing in the proceedings, as well as the type of
document to be served;
(b) as concerns requests for transit: one of the documents listed
in Art. 41;
(c) as concerns requests for search of persons or rooms, for
seizure or surrender of objects: confirmation that these measures are
permitted in the requesting State.
Art.77 Address
(1) Foreign requests shall be addressed to the appropriate Cantonal
authority through the Federal Office.
(2) Requests for extracts from the penal register or for the identi-
fication of a person shall be addressed to the Swiss Central Police
Bureau.
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Art.78 Federal Office
(1) The Federal Office shall examine the request to determine whether
the formal requirements of this Law have been met and forward the
request to the appropriate Cantonal authority, unless assistance
appears inadmissible on its face.
(2) It may impose conditions for the granting of assistance.
(3) It shall issue necessary transit orders.
(4) It shall prepare requests for assistance not directly related to
criminal proceedings.
Art.79 Cantonal Authorities
(1) Cantonal authorities shall decide whether assistance shall be
granted and questions of international procedure, unless a Federal
authority has exclusive authority to do so.
(2) If direct contact between the competent Swiss and foreign prosecuting
authorities is stipulated, Cantonal authorities shall deal with the
merits of the request if the conditions of Art. 78, para. 1, are met.
(3) Arts. 6, 26 and 27 of the Federal Administrative Procedure Act
shall also apply to the inspection of records in a Cantonal proceeding.
Any person entitled thereto may examine the request for assistance and
the accompanying documents as far as this is necessary for the pro-
tection of his interests. A defendant who is not personally affected
by the assistance to be rendered may invoke this right only if his
usual residence is in Switzerland, and only in the interest of protecting
his rights of defense in the foreign criminal proceeding.
(4) The Federal Office, in its capacity as supervising authority, may
in accordance with Art. 23, challenge decisions of Cantonal authorities
by means of appeals provided by Cantonal law.
Art.80 Investigationa in Several Cantons
If the execution of a request requires investigations in several
Cantons, the Federal Office may charge the competent authority of one
of these Cantons with the execution of the request. Arts. 352 - 355 of
the Penal Code apply by analogy.
Art.81 Police Requests
(1) The highest police authorities of the Confederation and of the
Cantons may make requests in accordance with Art. 63 on their awn,
and may grant such requests issued by foreign authorities.
(2) The Federal Council shall promulgate rules on methods and procedures.
Section 3: Special Provisions
Art.82 Safeguarding of Secrecy
(1) If in the execution of a request the parties to a proceeding would
gain knowledge concerning information which falls within the legally
protected sphere of privacy of a person who does not appear to be
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?
involved in the offense which is being prosecuted abroad, the parties
shall be excluded from the investigation until such time as the con-
ditions for the disclosure of the secret have been met.
(2) Information about such facts, which is contained in papers or
decisions which are to be released under Art. 74, or which are to be
furnished for inspection to the parties or to the foreign authorities,
shall be removed if the conditions for disclosure are not met.
(3) The forwarding of information which forms part of the sphere of
privacy shall be subject to appeal in accordance with Arts. 23 and 25.
Art.83 Conclusion of the Assistance Proceeding
(1) When the executing authority considers the assistance proceeding
concluded, it shall forward the files to the competent Cantonal or
Federal authority. That authority shall determine whether the request
has been executed correctly and, if necessary, return the files to the
executing authority for amplification.
(2) The documents of execution may be delivered to the requesting
authority:
(a) if no appeal was filed in the course of the execution of the
request;
(b) if the determination under para. 1 shows that no right of
privacy of third persons is affected and that there are no questions
regarding the propriety of granting of assistance.
(3) If the conditions of para. 2 are not met, an appealable order
shall be issued which shall state if and to what extent or in what
form the documents of execution shall be transmitted.
Art.84 Costs
The requesting State shall bear the costs for:
(a) experts;
(b) surrender of objects for return to the owner.
Part Four: Transfer of Proceedings
Chapter 1: Conditions
Section 1: Assumption by Switzerland
Art.85 General Principles
(1) Switzerland may, upon request, exercise its jurisdiction in lieu
of the State within whose territory the offense was committed if:
(a) extradition is not available;
(b) the fugitive sought has been charged in Switzerland with
other, more serious, offenses, and
(c) the requesting State gives assurance that it will not prosecute
the offender for the same offense should he be acquitted or should he
be sentenced in Switzerland.
(2) The prosecution of an alien who has his usual residence in Switzerland
may be undertaken if his extradition cannot be justified and if assumption
of prosecution seems expedient with regard to his personal circumstances
and social rehabilitation.
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(3) These rules shall not apply if the offense is subject to Swiss
jurisdiction on other grounds.
Art.86 Applicable Law
(1) The offense shall be tried according to Swiss law as if it had
been committed in Switzerland.
(2) Foreign law shall be applied if it is more lenient. The court may
impose only such penalties as are provided by Swiss law.
(3) Proceedings in the absence of the defendant shall not be permitted.
Art.87 Venue
If the venue in Switzerland is not otherwise laid, it shall be determined
according to Art. 348 of the Penal Code.
Section 2: Transfer to a Foreign State
- -Art.88 Conditions
Another State may be requested to assume the prosecution of an offense
subject to Swiss jurisdiction if its laws allow prosecution and judicial
penalties for the offense, and if the offender:
(a) has his residence in such other State and his extradition to
Switzerland would be inappropriate or impermissible, or
(b) if the offender is being extradited to such other State and
the transfer of the prosecution would lead to the expectation of a
better social rehabilitation.
Art.89 Effects
(1) If another State assumes prosecution, Swiss authorities may not
take further measures against the offender on account of the same
offense:
(a) as long as the requested State has not given notice that it
is not in a position to conduct the prosecution, or
(b) if according to the decision rendered in that State the
conditions of Art. 5, subparas. (a) or (b), are met.
(2) The running of the Swiss statute of limitations shall be tolled
for such period as the prosecution, including execution of the sentence,
is pending in the requested State.
(3) If the offender was extradited to a requested State for other
offenses, that State need not observe the conditions for extradition
according to Art. 38 if it grants the request to assume the prosecution.
Chapter 2: Procedure
Art.90 Documents
In addition to the documents specified in Art. 28, para. 3, the record
of criminal proceedings as well as exhibits shall be attached to the
request.
Art.91 Decision on the Request
(1) The Federal Office shall after consultation with the prosecuting
authorities, decide whether a foreign reauest will be accepted.
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(2) If it accepts the request, it shall transmit the file to the
prosecuting authority and notify the requesting State and the person
concerned.
(3) Such decision shall not create an obligation to institute criminal
proceedings.
(4) The Federal Office may decline to assume the prosecution for weighty
reasons or if the significance of the offense does not justify it.
Art.92 Foreign Investigative Acts
Any investigative act carried out by the authorities of a requesting
State under its law shall be considered equal to a corresponding Swiss
act of investigation in a prosecution here.
Art.93 Costs
(1) The costs of the proceedings incurred by a requesting State shall
be added to the costs of the proceedings in Switzerland and collected.
They will not be refOnded to the requesting State.
(2) The Cantons shall dispose of fines, confiscated objects or forfeited
monies.
(3) A requesting State shall be notified of the costs of the proceedings
incurred in Switzerland if it assumes prosecution. No reimbursement
shall be claimed.
Part Five: Execution of Criminal Judgments
Chapter 1: Conditions
Section 1: Assumption by Switzerland
Art.94 Basic Principles
(1) Final and enforceable criminal judgments of another State may be
executed upon its request if:
(a) the convicted person has his usual residence in Switzerland
or has been charged here with a serious offense;
(b) the subject of the conviction is an offense committed abroad
which if similarly committed in Switzerland, would be punishable here;
and
(c) execution in Switzerland is appropriate on any of the grounds
specified in Art. 85, paras. 1 and 2, or appears to be precluded in
the requesting State.
(2) Penalties imposed abroad shall be executed to the extent that they
do not exceed the maximum penalty provided by Swiss law for a corres-
ponding offense. Penalties that are less than penalties provided by
Swiss law may be executed.
(3) These provisions shall not apply if the Penal Code either prohibits
(Art. 6 P.C.) or explicitly mandates (Art. 5 P.C.) the execution of a
penalty imposed abroad.
(4) Fines as well as costs arising from procedures according to Art. 63
may also be collected if a convicted person whose usual residence is
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abroad has assets in Switzerland, and if the requesting State grants
reciprocity.
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Art.95 Inadmissibility of a Certificate of Execution
(1) A certificate of execution (Exequatur) shall not be accepted if:
(a) the conviction took place at a time when, under Swiss law,
the prosecution would have been clearly barred by the statute of
limitations;
(b) the penalty imposed would have been time-barred under Swiss
law if a Swiss authority had imposed it contemporaneously; or
(c) the offense is subject to concurrent Swiss jurisdiction and
if according to Swiss law a penalty could not be imposed for other
reasons.
(2) Decisions regarding costs shall be executed only if the costs are
payable to the State.
Art.96 Denial of Execution
A court shall deny execution
(a) the convicted person
Switzerland because of other
would result in a manifestly
in part or in whole if:
was sentenced and incarcerated in
offenses and if the requested execution
more severe punishment than if the offenses,
taken as a whole, were tried in Switzerland, or
(b) the execution of a subsidiary penal measure in Switzerland
is forbidden, or
(c) it determines that the convicted person had good cause to
challenge the execution of a judgment or sentence rendered against
him in absentia but that the review or appeal period under the law
of the requesting State has expired.
Art.97 Binding Force of Foreign Findings of Fact
When judging punishability and amenability to prosecution under Swiss
law, the court shall be bound by the findings of fact on which the
[foreign] decision is based. If these are inadequate, the taking of
additional evidence may be ordered.
Art.98 Effects of Assumption
If Switzerland assumes execution, domestic criminal proceedings
against the convicted person for the same offense may not be instituted
or continued.
Art.99 Utilization of Swiss Penal Institutions
by Foreign States
(1) If the conditions of Art. 94, para. 1, cannot be met, sentences
of incarceration which have been imposed against non-Swiss nationals
in another State may be executed in Switzerland under Swiss law if
the other State is unable to execute them.
(2) A final and enforceable foreign decision shall constitute a legal
basis for the incarceration of the convicted person in such cases.
(3) Persons who are surrendered to Switzerland under para. 1 may not
be prosecuted, punished or extradited to a third State by Swiss
authorities for offenses committed before their surrender and which
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did not serve as basis for their conviction unless there are arrange-
ments to the contrary made with the competent authorities of the
surrendering State. This effect ceases 10 days after the conditional
or final release of the offender from a penal institution.
(4) The Federal Council shall issue regulations implementing this
Article.
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Section 2: Transfer to a Foreign State
Art.100 General Principles
A foreign State may be requested to assume the execution of a Swiss
penal judgment if:
(a) finality of the judgment within the meaning of Art. 97 is
guaranteed, and
(b) the transfer of the execution leads to a reasonable expecta-
tion of better social rehabilitation of the convicted person, or if
Switzerland cannot obtain his extradition.
_
Art.101 Conditions of Transfer
The convicted person who is incarcerated in Switzerland may be trans-
ferred with a view to execution under Art. 100 only if he agrees,
and if the requested State can be expected to observe the conditions
set by the Federal Office.
Art.102 Effects of Transfer
(1) If another State assumes the execution of a criminal judgment,
the Swiss authority shall not execute it as long as the requested
State has not signified that it will be unable to complete the execution.
(2) The convicted person may be taken into custody to ensure his transfer.
(3) Art. 89, paras. 2 and 3, apply by analogy.
Chapter 2: Procedure
Section 1: Request
Art.103 Documents
In addition to the documents required under Art. 28, para. 3, the
following shall be attached to a request:
(a) the original or an officially authenticated copy of the
sentence, with a certificate attesting that it is legally enforceable;
(b) a certificate attesting to the period of detention in the
requesting State;
(c) if the requested State so requests, the original or officially
authenticated copy of the penal file.
Art.104 Decision on the Request
(1) The Federal Office, after consultation with the authority which
will execute the request, shall decide whether to accept the request.
If it accepts, it shall transmit the file and its opinion to the executing
authority and inform the.requesting State. Art. 91, para 4, applies
by analogy.
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(2) If there is Swiss jurisdiction, and if a penalty more severe
than that provided by Swiss law was imposed abroad, prosecution may
be assumed instead of execution of the existing judgment if the
requesting State so requests.
Section 2: Procedure of Exequatur
Art.105 Competent Court
A court competent under Art. 348 of the Penal Code shall advise the
convicted person as to the procedure, hear him and his attorney in
the matter, and decide on the execution.
Art.106 Certificate of Execution
(1) A court shall examine ex officio whether the conditions for
execution are met and gather the necessary evidence.
(2) If the conditions are met, the judge shall declare that the
sentence can be executed and take the measures necessary for execution.
(3) The decision shall be rendered in the form of a judgment, giving
reasons. Cantonal law shall govern appellate remedies.
Section 3: Execution
Art.107 Execution of the Penalty
(1) The penalty imposed by the court shall be executed according
to Swiss law.
(2) Execution shall be terminated if the sentence is no longer enforce-
able in the requesting State.
(3) If a judgment of costs only was executed, the amount collected,
after deduction of the costs resulting from the execution, shall be
transferred to the requesting State if it guarantees reciprocity.
Art.108 Costs
In addition to the costs for the execution of a penal judgment, costs
for the procedure of exequatur and other measures of execution shall
also be considered as taxable costs according to Art. 31.
Part Six: Final Provisions
Art.109 Repeals and Amendments of Existing Law
[omitted]
Art.110 Transitory Provisions
(1) The procedural provisions of the Federal Act of 22 January 1892
on Extradition to Foreign States shall remain applicable to extradition
proceedings which are pending on the day of the entry into force of
this Law.
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(2) The prosecution and execution of sentences in accordance with
Parts Four and Five of this Law may be assumed only if the offense
to which the request refers was committed after the entry into force
of this Law.
(3) Requests for extradition or other assistance on account of offenses,
which, under Art. 75 of the Penal Code or Art. 56, as amended, of the
Military Penal Code are not subject to the statute of limitations,
may be granted by the Federal Council even if, upon the entry into
force of these provisions, the prosecution or the sentence has become
time-barred.
Art, ill Implementation
* (1) The Federal Council shall promulgate implementing regulations.
(2) It may establish a permanent commission to examine the question
whether the gravity of an offense justifies the release of information
protected by the right of privacy. The members of the commission shall
be bound to secrecy to the same extent as civil servants of the
Confederation.
Art.112 Entry into Force and Referendum
(1) This Law shall be subject to the optional referendum.
(2) The Federal Council shall establish the effective date [of this Law].
Council of States National Council
20 March 1981 20 March 1981
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APPENDIX L
ORDINANCE OF 24 FEBRUARY 1982 ON
INTERNATIONAL MUTUAL ASSISTANCE IN PENAL MATTERS
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I. ORDINANCE ON INTERNATIONAL MUTUAL ASSISTANCE IN THE PENAL SPHER
(Ordinance on International Penal Assistance [OEIMP]
of 24 February 1982
The Swiss Federal Council,
considering Article III of the Federal Law of 20 March 1981 on
international penal assistance,
Decrees:
Chapter I: General Provisions
Section I: Sphere of Application: Applicable Law
Art. 1: Reciprocity
Reciprocity is also believed to be guaranteed if assistance from
another state can be obtained without its authorities getting
involved.
Art. 2: Protection of Secrecy
1--If a written document contains, in addition to the information
which can be passed on to a foreign country, some facts which
cannot be revealed in accordance with Article 10 of the Law on
International Penal Assistance, the executory authority will make
a copy or a photocopy deleting the information which must be kept
secret.
2--It will mention in the document that something has been
omitted, indicating where and why it was done, and will certify
that the rest of the document is otherwise a true reproduction of
the original.
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3--If so requested, the Federal Office of Police (the Federal
Office) receives, for its information, the unaltered full text.
4--The preceding provisions also apply to other supporting
documents.
Section 2: Procedure
4 Art. 3: Supervision
The Federal Office is in charge of supervising the application of
the law. In cases assuming political importance, it seeks advice
from the competent directorate of the Federal Department of
Foreign Affairs.
Art 4: Procedure to be followed in cases falling under federal
penal jurisdiction
1--In criminal cases which fall under the jurisdiction of the
Federal Criminal Court and are not delegated to a cantonal
authority (Art. 18 of the federal penal procedure), the Attorney
General of the Confederation or the federal examining magistrate
sends to the Federal Office the request dealing with an
extradition (EIMP, Part 2) and to the other state those requests
which concern "other acts of assistance" (EIMP, Part 3).
2--The Attorney General of the Confederation drafts the request
asking another state to assume a penal prosecution or an execution
(EIMP, Part 4 and 5).
3--The cantonal authorities, in agreement with the Attorney
General of the Confederation, rules on the execution of requests
dealing with "other acts of assistance" (EIMP. Part 3) received
from a foreign country.
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4.
4--The Federal Office, in agreement with the Attorney General of
the Confederation, rules on the matter of accepting foreign
requests to delegate the penal prosecution and the execution.
Art. 5: Notification to the Federal Office
Judicial and cantonal decisions of last resort issued concerning
international penal assistance are notified to the Federal Office.
Art. 6: Consent
If the act of assistance is contingent on the consent of the
person concerned (Art. 7, 54, 70 and 101 of the EIMP), that person
must be informed of the fact that it can withdraw its consent and
told how much time he is allowed to do so. That information must
be entered in the official statement.
Art. 7: Transfer to the federal authorities
The authorities entrusted with the execution will transfer the
file to the competent federal authority, if a ruling is required
on one of the points listed under Article 17 of the Law on
International Penal Assistance.
Art. 8: Selection of the procedure
1--The selection of the procedure (Art. 19 of the EIMP) must be
made on the basis of:
a) the relations between the accused and the state to which
the request has been sent as well as between the accused and
Switzerland;
4.
b) the chances of an expulsion from Switzerland;
c) a rational approach to administering justice;
d) an overall judgment in the case of several offenses.
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2--If the extradition of a foreigner is requested of Switzerland
and the conditions set to agree with the proceedings and with the
execution are fulfilled (Art. 85, paragraph 2 and Art. 94 of the
EIMP), the Federal Office issues a ruling taking into
consideration the elements listed under paragraph 1 and in
agreement with the cantonal authorities. Before that, the accused
is allowed a hearing.
* Art. 9: Address to send the notification
The interested party living abroad or his attorney must indicate
an address in Switzerland where the notification can be sent. If
they don't, notification can be omitted.
Art. 10: Statement of facts
1--The facts can be stated in the request or in its annexes.
2--The statement of facts must indicate at least the place, date
and manner in which the offense was committed.
Art. 11: Swiss requests
1--As long as the state to which the request is sent has no other
requirements, Articles 27 to 29 of the Law on International Penal
Assistance apply by analogy to Swiss requests.
2--The requests and their annexes must not contain any information:
a) likely to have an aggravating effect on the plight of an
individual due to his political views, his membership to a
specific social group, his race, religion or nationality;
A
b) or which can lead to complaints from the state to which the
request is sent.
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Art. 12: Costs charged to the foreign country
1--The Swiss authorities can ask the petitioning state to
reimburse all the costs incurred in the execution of the request.
2--They can bill for the time spent dealing with it, if it amounts
to more than one working day and if Switzerland cannot obtain
* assistance free of charge from the petitioning state.
3--Costs adding up to less than 200 francs are not billed.
Art. 13: Allocation of expenses between the Confederation and the
cantons
1--The federal and cantonal authorities do not demand from one
another any outlay or compensation for the time spent or work done
to deal with the cases covered by the Law on International Penal
Assistance.
2--When the detention has been ordered by a federal authority, the
Confederation assumes the expenses derived from the following
measures:
a) detention (Art. 47. 72 paragraph 2 and 104, paragraph 2 of
the EIMP);
b) transportation of the prisoners and their escort;
c) naming of a court-appointed attorney in the assistance
proceedings (Art. 21, paragraph 1 of the EIMP);
0
d) necessary medical care required by the prisoner.
Art. 14: Preliminary review
If the conditions established for cooperation with a foreign
country must be reviewed by the Federal Office (Art. 78, paragraph
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1 and Art. 91, paragraph 1 of the EIMP), the acceptance or the
transfer of the request to the executory authority cannot be
tacked separately.
0 Chapter II: Extradition
Section 1: Repatriation of persons under 20 years of age
Art. 15
1--The competent agencies (Art. 33, paragraph 1 of the EIMP) are,
of course, the authorities appointed by the cantons under Article
369 of the Penal Code.
2--When the cantonal authorities receive, directly from a foreign
authority, a request for the repatriation of a foreign person
under 20 years of age, knowing that because that person has
committed a crime or an offense, criminal proceedings have been
opened against him abroad, or that he has been sentenced but the
punishment has not been executed yet, these authorities will
notify the Federal Office immediately.
3--If the repatriation takes place in accordance with Article 33
of the Law on International Penal Assistance, the Federal Office
notifies the petitioning state.
Section 2: Procedure
Article. 16: Communication with foreign consular offices
Any foreigner who is arrested is told immediately that he has the
right to ask that the appropriate consular office of his country
of origin be notified and the right to communicate with that
office (Art. 36 of the Vienna Convention of 24 April 1963 on
consular relations).
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4.
Art. 17: Right to a hearing
At the hearing, the accused is handed a statement on the
extradition procedures in a language which he understands. The
Federal Office has statements available in German, French, English
and Spanish.
Art. 18: Official report
1--The hearing is recorded in an official report which must
indicate:
a) The appointment of an attorney or an interpreter when
needed;
b) The documents and legal provisions which have been read to
the accused (Art. 52, paragraph 1 of the EIMP);
c) The explanations he was given and the language in which
this was done (Art. 52, paragraph 2 of the EIMP);
d) The statements he made regarding his personal circumstances
and his objections to the warrant of arrest or to the extradition
(Art. 52, paragraph 2 of the EIMP);
e) His consent to be extradited in accordance with Article 7
or to be handed over without formality in accordance with Article
54 of the Law on International Penal Assistance (Art. 6);
f) A note saying that the accused has the right to communicate
with a representative of his country of origin (Art. 16).
2--If the accused refuses to sign it, the fact must be mentioned
in the report which must also state the reason for his refusal.
Art. 19: Arrest leading to extradition
The Federal Office can also order an arrest leading to extradition
by telex or by phone. That order must be immediately confirmed by
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a written warrant of arrest (Art. 47 of the EIMP) which is
presented to the accused.
Art. 20: Execution of the detention
1--As a general rule, the detention takes place under the
0
stipulations set by the cantons. If the circumstances so require,
the Federal Office can order other measures in agreement with the
* cantons. Easier conditions of detention can be granted without
prior consent from the Federal Office.
2--In agreement with the canton, the Federal Office appoints the
authority responsible for controlling the prisoner's mail.
3--The present article also applies if the detention for
extradition has been ordered in addition to a preventive or
repressive detention.
Art. 21: Handing over without formality
The authorization to hand over the accused without formality must
include a reference to the conditions listed in Article 38 or the
Law on International Penal Assistance.
Art. 22: Execution of the Decision
The effects of the person due to be extradited, as well as the
objects and assets seized, can be handed over to the petitioning
state even if there is no specific request to do so. The same
applies to the objects and assets discovered after the extradition
takes place qr. when the extradition cannot be executed.
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Art. 23: Right to a bond as surety for the Internal Revenue
1--The right to impose a bond as surety for the Internal Revenue
can be put forward if the objects which will be handed over:
a) are likely to be confiscated by the petitioning state;
O b) belong to a petitioning state which, when the situation is
reversed, does not relinquish its rights to impose a bond.
* 2--The General Customs Office decides if there is reason to
relinquish the rights to impose a bond (Art. 60 of the EIMP).
?
Chapter III: Other Acts of Assistance
Section 1: Conditions
Art. 24: Tax Fraud
1--When it involves the use of coercive measures, the assistance
described in Article 3, paragraph 3 of the Law on International
Penal assistance is granted for acts which amount to tax fraud as
defined in Article 14, paragraph 2 of the Law on Administrative
Penal Law.
2--The request cannot be rejected merely on the grounds that the
Swiss law does not levy the same type of taxes or does not have
the same type of regulations applicable to taxes.
3--In the case of doubt regarding the characteristics of the taxes
mentioned in the foreign request, the Federal Office or the
cantonal authority of execution will seek the advice of the
Federal Tax Department.
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Art. 25: Official Act
Also considered as an official act (Art. 63, paragraph 1 of the
EIMP) is the supervision of persons who have been sentenced or
released on parole.
Art. 26: Presence of foreign persons who participate in the
procedure
1--The judge from the petitioning state or the official from that
state who is in charge of conducting the investigation can also
attend the execution of the request when his presence will make it
considerably easier to carry out the execution or the penal
proceedings.
2--The executory authority rules on the matter of the right of
foreigners who take part in the procedure to ask questions and to
request additional investigations.
3--The Federal Council's executive order of 7 July 1971--
empowering the departments and the Federal Chancellor's Office to
grant the authorization provided for in Article 271, section 1 of
the Swiss Penal Code -- applies in the case of a foreign
prosecuting authority which asks Swiss authorities to be allowed
to carry out its own investigations in Switzerland. That
authorization is granted after consultation with the cantonal
authorities concerned.
' Art. 27: Testifying under special form
Taking an oath is also incompatible with Swiss law (Art. 65, c of
the EIMP) if the law allows the witness or the expert to choose
between taking the oath or making a solemn promise, or if he
refuses to take the oath.
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Art. 28: Exceptional cases where assistance will not be refused
The assistance is not refused (Art. 66 of the EIMP) if the
proceedings initiated abroad are not solely directed against the
accused person residing in Switzerland or if the execution of the
request is likely to exonerate that person.
Section 2: Special Acts of Assistance
A
Art. 29: Attestation of Notification
As proof of notification, the executory authority must send an
acknowledgment of receipt, dated and signed by the addressee or a
statement from the official who served the notification in which
he bears witness as to the method and date in which the
notification was served and, if the case arises, to the fact that
the addressee had refused to accept it.
Art. 30: Direct notification
Penal actions which originate in neighboring countries and deal
with traffic violations can be notified by post directly to the
person concerned in Switzerland.
Art. 31: Legal Attestation
1--In the case of Swiss requests for searches, seizures and
handing over of objects, the attestation required for such
measures to be admissible under Swiss law (Art. 76 c of the EIMP)
can only be endorsed by an authority with power to order such
A
measures in Switzerland.
2--The search and seizure order issued by the foreign authority,
and attached to the request, confirms the legality of the measure.
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Section 3: Procedure
Art 32: Prisoner's escort
While on transit, the prisoner is escorted by foreign officials.
Art.33: Handing over of valuable objects
* The executory authority sees to it that objects of great value are
protected before being handed over and are insured against any
damage or loss during transportation.
Art. 34: Conditions
1--If the foreign petitioning authority has not given its
guarantee, the competent Swiss authorities must draw its attention
to the fact that:
a) the information provided cannot be used in proceedings
where assistance is ruled out;
b) any other use of the information is contingent upon consent
from the Federal Office.
2--The same applies when a foreign authority is given permission
to consult a Swiss file outside the framework of a procedure of
assistance.
Art. 35: Acts of assistance handled by the police
1--No assistance of the kind covered by Article 81 of the Law on
International Penal Assistance will be given for requests:
a) Involving the use of means of constraint;
b) Aimed at obtaining information or ordering measures in
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cases of extradition, delegation of the penal prosecution or
execution of decisions (EIMP, Part 1, 4 and 5);
c) to hand over decisions or police files;
d) and requests from cantonal authorities concerning
activities which fall under the jurisdiction of central offices of
the Federal State Prosecutor.
2--The competent police authorities have contacts with foreign
countries through the Swiss Central Police Department in Bern.
They must abide by the statutes of the International Criminal
Police Organization (ICPO-Interpol). Exceptions can be made in
the case of an emergency or when frontier traffic is involved.
Chapter IV: Delegation of penal proceedings
Art. 36: Communications
1--The competent authority notifies the Federal Office:
a) whether or not it has accepted to initiate a penal
procedure;
b) the sentence which was executed;
c) if the sentence was passed;
d) the interruption of a penal procedure;
e) the decision on the procedure to follow if the accused
eludes penal prosecution.
2--The Federal Office notifies the foreign state.
Art. 37: Foreign official documents
The official documents issued by the state which requests the
penal proceedings have the same effect, in the penal procedure, as
similar Swiss documents.
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cv
Chapter 5: Execution of decisions
Section 1: Acceptance by Switzerland
Art. 38: Execution when the offense was committed in Switzerland
If the judgment passed in the foreign country covers several
offenses some of which were committed in Switzerland, the decision
can be executed in Switzerland:
a) if the aggregate penalty has been pronounced;
b) if Switzerland had asked the other state to take over the
prosecution.
Art. 39: Ancillary effects of the conviction
Implementation of the ancillary effects of the conviction (Art. 96
b) of the EIMP) is not ruled out for the mere reason that, under
Swiss law, these effects can only be implemented as administrative
measures.
Art. 40: Judgment by default
The penal decisions issued in the country where the sentenced
person has been convicted and which deal with his objections or
appeal are not considered to be judgments by default.
Art. 41: Use of Swiss penal institutions by the foreigner
1--The use of Swiss penal institutions (Art. 99 of the EIMP) is
contingent on permission given by the competent authority from the
canton which manages such institutions. The authorization can
have an overall scope or can apply to a specific case only.
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2--The condition that another state be unable to execute the
sentence is fulfilled when that state does not have an institution
within its territory allowing it to execute the sentence handed
down.
3--The authorities of the state which sent the convicted person on
parole, on a trial basis or for good, his reincarceration in that
institution as well as the cancellation of the execution.
4--The convict is handed over to the Swiss authorities at the
border. At that time, the authorities receive a complete copy of
the decision ordering his incarceration in the Swiss penal
institution with attestation of the executory power.
5--If the prisoner escapes, the authorities of the canton where
the institution is located take immediately whatever steps are
required to arrest the fugitive in Switzerland and notify the
authorities of the state which had ordered his imprisonment.
6--The costs of execution are charged to the State which ordered
the imprisonment.
Section 2: Effects of the delegation to a foreign country
Art. 42:
If the person sentenced is already in Switzerland, the effects of
the delegation (Art. 102 of the EIMP) start as soon as the
competent cantonal authority receives notification that the state
to which the request was sent has accepted the delegation.
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Section 3: Procedure
Art. 43: Handling of the request by the Federal Office
1--The Federal Office can propose to the petitioning state to
initiate penal proceedings instead of executing the sentence when
that sentence goes beyond the limits set under Swiss law or when
it is obviously more severe than the sentence which would be
imposed in a similar case.
2--If the Federal Office does not accept the request or if the
competent judge declares that the penal decision is not executory,
the Federal Office looks to see if all the conditions for
acceptance of the prosecution--as stipulated in Part 4 of the Law
on International Assistance--have been fulfilled. If that is the
case, the Federal Office proposes to the petitioning state to
initiate proceedings instead of executing the sentence when it
notifies that State that the request has been rejected or that
acceptance had been revoked.
3--If the judge determines that the legal conditions set for the
execution have not been fulfilled with regard to all the offenses,
the Federal Office asks the petitioning state which part of the
sentence applies to offenses where the conditions for execution
have been fulfilled.
Art. 44: Determination of the sentence to be executed
1--If the judge declares that the decision can be executed (Art
106 of the EIMP), he sets the penalty which comes closest, under
Swiss law, ty the one imposed in the foreign country and converts
the fine into Swiss francs based on the current rate of exchange.
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U'
iv-
2--The cantonal authority sends to the Federal Office two copies
of the complete file on the decision of exequatur which has gone
into effect.
Art. 45: Execution of the Penalty
1--The competent cantonal authorities notify the Federal Office
that the execution is underway.
2--When the execution is completed, the competent authorities send
an affidavit of execution to the Federal Office which passes it on
to the petitioning state.
Chapter VI: Coming into force
Art. 46:
The present ordinance goes into effect on 1 January 1983.
24 February 1982
On behalf of the Swiss Federal Council:
The President of the Confederation, Honegg
The Chancellor of the Confederation, Buser
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I.
APPENDIX M
*,.
ORDINANCE OF 4 JULY 1984 ON
ORIGIN CERTIFICATION
r
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Ordinance on Origin Certification (VUB)
of 4 July 1984 (946.31)
The Swiss Federal Council,
based on Article 7, Para. 2 of the Customs Act'
and on Articles 3, 4 Para. 1 and 5 of the Federal Law of 25 June
19822 on Foreign Trade Measures,
in execution of Article 11 of the International Agreement of 3
November 19233 on simplifying customs formalities as well as
Article 2 and Supplements D.1, D.2 and D.3 of the International
Agreement of 18 May 19734 on the simplification and harmonization
of customs procedures,
ordains:
Section 1: General Provisions
Art. 1 Area of Validity
'This ordinance applies to origin certification used in foreign
trade. Excepted from it is origin certification that is issued
on the basis of international treaties on the movement of goods
1SR 631.0
2SR 946.201
aSR 0.631.121.1
45R 0.631.20
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or on the basis of the Customs Preference Resolution of 9 October
1981.1
2The ordinance is in effect in Switzerland and its free zone.
Art. 2 Origin
?
An item has its origin in the state or group of states where it
was either entirely manufactured or sufficiently treated or
processed.
Art. 3 Origin Certification
'Origin certification (certificate of origin, confirmation of
origin, domestic certification) serves as proof of the origin,
the value or the price of an item. It contains further informa-
tion necessary for the identification of the item.
2The certificate of origin is an official document that is given
using the form so established for it (Supplement 2). All parts
of it must reflect the truth.
3The confirmation of origin is given on trade invoices and other
documents.
4The domestic certificate is given on trade invoices or other
documents for the attention of a certification office and is
valid only within Switzerland.
Art. 4
Certification Offices
'The certification offices listed in Supplement 1 issue origin
certification to the persons and firms established in their area
of jurisdiction.
'SR 632.91
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2In the interest of goods export, the certification offices can
issue exceptional origin certification to persons and firms that
are not established in their area of jurisdiction, if:
a. the goods in question were produced in their area of
Jurisdiction and
b. the certification office in accordance with Para. 1 is in
agreement.
3The Federal Office for Foreign Trade (Federal Office) can stipu-
late other exceptions on a case-to-case basis for technical
reasons.
Art. 5 Factual Certification
The certification offices can certify other provable facts with
regard to an item in addition to origin, value or price, specifi-
cally, the state or group of states from which an item is being
shipped.
Section 2: Origin Criteria
Art. 6 Swiss Origin
An item is of Swiss origin if it was entirely manufactured or
sufficiently treated or processed in Switzerland.
Art. 7 Entirely Manufactured Goods
The following are considered goods entirely manufactured in
Switzerland:
a. mineral products extracted from the earth here;
b. plant products harvested here;
c. animals born or hatched and reared here;
d. products obtained from living animals kept here;
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e. hunting and fishing booty gained here;
f. products of Swiss deep-sea fishing and other products
obtained by its ships from the sea;
g. goods produced aboard Swiss factory ships exclusively from
products according to letter f;
h. second-hand goods that have been gathered here and can
only be used for the exploitation of raw materials;
1. waste products from a production activity;
k. goods produced exclusively from products according to
letters a through i.
Art. 8 Sufficient Treatment or Processing
'An item is sufficiently treated or processed if:
a. the value of all the material of foreign origin used in
its production does not exceed 50 percent of its export
price or
b. the item is, because of its treatment or processing, to be
placed under a different four-digit number in the Swiss
Utility Customs Tariff' than the products of foreign
origin used for its production, or it is considered an
original product in keeping with Supplement 4.
2Not considered treatment or processing are activities that
consist exclusively of one or more of the following processes:
a. actions that are necessary for the maintenance of the
goods during transport or storage;
'SR 632.10 Supplement
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b. actions serving to improve the presentation or commercial
quality of the goods or to prepare them for transport,
such as splitting up or assembling packing units, assem-
bling and arranging goods and repacking;
?
c. simple assembly;
d. the simple mixing of goods if the characteristics of the
?
product are not significantly different from those of the
mixed goods.
Art. 9 Accessories, Replacement Parts and Tool Kits
lAccessories, replacement parts and tool kits have the same
origin
as the devices, machines, appliances or vehicles with
which they are delivered as standard equipment.
2Essential replacement parts delivered at a later date have the
same origin as the devices, machines, appliances or vehicles in
question if:
a. the country of destination so requires for import and
b. the item is, because of its treatment or processing, to be
placed under a different four-digit number in the Swiss
Utility Customs Tariffl than the products of foreign
origin used for its production, or it is considered an
original product in keeping with Supplement 4.
3Para. 1 and 2 do not apply to goods whose import into Switzer-
land is subject to the Ordinance of 7 March 19832 on Import
?
Supervision.
1SR 632.10 Supplement
"SR 946.211
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Section 3: Issue of Origin Certification
Art. 10 Issue and Revocation of Origin Certification
"Origin certification may be issued only by certification
offices.
mt-
2The certification offices are authorized to charge fees for the
issue of origin certification.
3If origin certification was wrongly issued, the Federal Office
orders its revocation.
Art. II Right to Origin Certification
'Applicants established in the area of jurisdiction of the cer-
tification office who product goods intended for export or trade
in such goods have a right to origin certification if they:
a. provide the necessary information (Art. 12);
b. allow any and all inspections (Art. 13 and 14) and
c. pay the fee established by the certification office.
2If the applicant is a company, then it must be entered in the
Trade Register.
Art. 12 Obligations of the Applicant, Supplier and Producer
'The applicant must apply for the origin certification on the
prescribed form (Supplement 3) with the certification office.
2He must completely and truthfully provide all information neces-
sary for the origin certification and prove this information with
the appropriate documents.
4
3The applicant, the supplier and the producer must provide the
persons so commissioned by the certification office with the
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necessary information, as well as allow perusal of documents and
access to operating premises.
Art. 13 Obligations of the Certification Office
'The certification office checks the accuracy of the information
?
attested to in the origin certification to the necessary extent.
2If there is well-founded suspicion or it is ascertained that
provisions of this ordinance have been violated, the certifica-
tion office notifies the Federal Office. It conveys to it the
evidence.
3The bodies, employees and representatives of the certification
office are subject to the Responsibility Act' and to confiden-
tiality in accordance with Article 320 of the Swiss Criminal
Codez.
Section 4: Controls
Art. 14 Clarifications by the Certification Office and the
Federal Office
"The certification office can at any time check the information
of the applicant through clarifications; it can demand informa-
tion on the location and dispatch of goods, as well as samples.
2The Federal Office can order clarifications concerning informa-
tion made in an origin certification before and after export.
3The applicant 'bears the expense of the clarifications.
'SR 170.32
2SR 311.0
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Art. 15 Cooperation of the Customs Entities
'During the export of goods, the customs entities examine the
origin certification that has been added to the accompanying
documents according to instructions by the main customs office.
This office acts in agreement with the Federal Office.
2The customs entities hold back a shipment or take samples from
it if the certification office that issued the origin certifica-
tion or the Federal Office so require.
3If there is well-founded suspicion that a criminal act according
to this ordinance is in evidence, then the customs entities hold
back the shipment and the origin certification.
4The customs entities make a report on the situation described in
Para. 3 and have it signed by the party subject to customs duty
or his authorized agent. If the party refuses to sign, this is
noted in the report. The report is sent to the Federal Office,,
together with the origin certification and other evidence
(samples, etc.).
Section 5: Supervision and Legal Protection
Art. 16 Duties of the Federal Office
'The Federal Office exercises direct supervision over the cer-
tification office insofar as they are engaged in activities in
accordance with this ordinance.
2It approves the fee schedules of the certification office.
3In case of doubt, the Federal Office can specify the origin of
an item.
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Art. 17 Legal Protection
Orders by the certification offices can be disputed by appeals to
the Federal Office.
Section 6: Penal Provisions
Art. 18 Violations by Entities and Representatives of a Cer-
tification Office
1. Whoever, as an entity of a certification office falsely cer-
tifies the origin, the value or the price of an item or the
identity of an applicant with the intention of inflicting damage
to property or to other rights, or of giving another party an
unlawful advantage,
whoever is responsible for clarifications of matters that are to
be or have been certified in origin certification and in so doing
furnishes a false statement or a false report with the intention
of inflicting damage to property or to other rights, or of giving
another party an unlawful advantage,
is punished by imprisonment or fines.
2. If the perpetrator acts with negligence, then the punishment
is fines of up to 20,000 francs.
3. If the representative himself reports the false statement or
false report before the origin certification is used, then the
Judge can dispense with punishment.
Art. 19 Administrative Measures
'The entity of a certification office that acts contrary to his
duty despite warnings can be dismissed from his position by the
certification office.
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2The entity of a certification office against whom criminal
proceedings for deliberate violation of this ordinance have been
initiated is relieved of duties by the certification office for
the duration of the proceedings.
3The entity of a certification office who has been convicted of
deliberate violation of this ordinance is dismissed from his
position by the certification office.
41:f the certification office itself does not take the administra-
tive measures according to Para. 1 through 3, the Federal Office
can demand that they be taken.
5If an entity of a certification office has repeatedly issued
false origin certification, the Federal Council can deprive this
office of its function as a certification office.
Art. 20 Falsification of Origin Certification
1. Whoever forges or falsifies origin certification with the
intention of using it or uses the genuine signature of a cer-
tification office in order to produce false origin certification,
whoever forges or falsifies the statement or the report of a
person responsible for the clarification of the origin, the value
or the price of an item, or uses the genuine signature of such a
person in order to produce a false statement or report,
is punished by imprisonment or fines.
2. If the perpetrator acts with negligence, then the punishment
is fines of up to 20,000 francs.
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Art. 21 Procurement and Use of False Origin Certification;
Misrepresentation of Origin
1. Whoever acts such that the entity of a certification office
issues false origin certification or such that a person respon-
sible for the clarification of the origin, the value or the price
of an item produces a false statement or report,
(ft whoever uses or permits the use of origin certification, domesti-
cally or abroad, for goods to which it does not pertain,
whoever uses or permits the use of forged, falsified, untrue or
revoked origin certification, domestically or abroad,
whoever in some other way misrepresents or allows misrepresenta-
tion of the origin of goods,
is punished with imprisonment or fines.
2. If the perpetrator acts with negligence, then the punishment
is fines of up to 20,000 francs.
Art. 22 Unlawful Use of Equipment
Whoever makes or procures equipment for forging or falsifying
origin certification in order to make unlawful use of it,
whoever uses origin certification equipment unlawfully,
is punished with imprisonment or fines
Art. 23 Foreign Origin Certification
?
'Article 20 No. 1 Para. 1 applies to foreign origin certification
as well.
?
2Article 21 No. 1 Para. 2 and 3 as well as Art. 22 apply to
foreign origin certification if the perpetrator uses it or allows
its use within Switzerland.
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Art. 24 Misdemeanors
I. Whoever encumbers, impedes or obstructs the clarifications of
matters certified or to be certified in origin certification,
whoever acts in violation of a provision of this ordinance or of
an individual order directed at him with reference to the penal
provisions of this article,
is punished by fines of up to 5,000 francs.
2. If the perpetrator acts with negligence, then the punishment
is fines of up to 2,000 franc's.
3. The right to referral to the court judge based on Article 285
or 286 of the Swiss Criminal Code' remains reserved.
Art. 25 Administrative Criminal Procedure
'The Federal Law on Administrative Criminal Law2 is applicable.
2The administrative authority charged with prosecuting and sen-
tencing is the Federal Office.
3The Federal Office can call in the customs administration or the
certification office for the investigation.
Section 7: Final Provisions
Art. 26. Settlement of Details
After hearings with interested parties, the Swiss Department of
Public Economy
can settle details concerning the origin criteria
(Section 2) insofar as they are of a primarily technical nature.
'SR 311.0
2sR 313.0
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Art. 27 Repeal and Modification of Previous Laws
1. The Certificate of Origin Ordinance of 9 December 1929' is
repealed.
2. The Ordinance of 10 January 19722 on Foreign Trade Statistics
is modified as follows:
Art. 8 Para. 2
3
3. The Ordinance of 7 March 19834 on Goods Export is modified as
follows:
Art. 7 Para. 1
3
4. The Ordinance of 8 December 1975 on the Import of Textiles 5 is
modified as follows:
Art. 11 letters a and b
a
? . ?
Art. 28 Effectiveness
This ordinance goes into effect on 1 January 1985.
1[13S 10 525; AS 1974 1985, 1980 2663
2SR 632.14
3Text added in the ordinance in question.
4SR 946.221
sSR 946.213
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Secret
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