C v Federal Police Department

CourtFederal Tribunal (Switzerland)
Switzerland, Federal Tribunal (First Court of Public Law).
Federal Police Department

Extradition Capital offences Offence carrying death penalty in requesting State but not in requested State Switzerland-Belgium Extradition Treaty, 1874 Whether requested State required to seek assurance that death penalty will not be imposed Rule of domestic law requiring such assurance to be obtained Whether conflicting Treaty taking precedence European Convention on Extradition, 1957, Article 11 Whether having any effect upon requesting State prior to ratification by that State Whether any binding rule of international public policy concerning death penalty Effect of Article 2(1) of European Convention on Human Rights, 1950

Extradition Concurrent requests for extradition European Convention on Extradition, 1957, Article 17 Principles applicable in deciding which request should take priority Requesting States not both bound by treaty containing rule similar to Article 17 Exercise of discretion by authorities in requested State Relevant factors Relative gravity of different offences committed in the requesting States Whether re-extradition would be possible

Relationship of international law and municipal law Treaties Application by municipal courts Conflict between treaty and municipal legislation Whether treaty prevails The law of Switzerland

Summary: The facts:In 1987 the Belgian authorities requested the Swiss Government to extradite C, an Italian national, who was the subject of a total of seven arrest warrants issued in Belgium relating to a whole series of armed attacks carried out there, including one involving the taking of a hostage. Belgian law (Section 347 of the Criminal Code) provided for the death penalty for hostage-taking in certain circumstances. The Italian authorities also requested the Swiss Government to extradite C on the basis of an arrest warrant related to a single armed attack carried out in Italy. C objected to his extradition to Belgium but did not oppose his surrender to the Italian authorities. The Swiss Police Department granted the Belgian extradition request but refused the Italian request, pointing out that a request for the re-extradition of the accused from Belgium to Italy would be possible. C lodged an administrative law appeal against that decision before the Federal Tribunal.

Held:The appeal was dismissed. Switzerland could not refuse extradition to Belgium on the ground that the accused might be sentenced to death and executed.

(1) Under Federal law (Section 37(2) of the Law on Mutual Assistance in Criminal Matters, 1981) extradition should not be granted if the requesting State did not give a guarantee that the person sought would not be executed. But no such reservation was contained in the Belgium-Switzerland Extradition Treaty, 1874, which must take precedence as a rule of international treaty law. Despite the fact that Switzerland had now abolished the death penalty, the Treaty had not been denounced or amended on this point. Switzerland was therefore not required to obtain a guarantee within the meaning of Section 37(2) (pp. 65960).

(2) The position would have been...

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