Overview
Switzerland is an EFTA member and a Schengen-associated state, but not an EU member. The European Arrest Warrant does not apply in relation to Switzerland. The relevant instruments are instead the European Convention on Extradition of 13 December 1957 and the supplementary German–Swiss treaty of 13 November 1969.
Extradition between Germany and Switzerland is, in practice, one of the most frequent bilateral mutual-legal-assistance scenarios. It is well established, follows strict rule-of-law standards, and as a rule raises no human-rights concerns.
Of particular practical relevance are fiscal offenses (where Switzerland has traditionally taken a more restrictive stance) as well as white-collar criminal proceedings with a cross-border dimension.
Legal basis
Extradition to Switzerland is governed by the European Convention on Extradition of 13 Dec 1957, supplemented by the additional protocols. Both states have ratified the 1st and 2nd Additional Protocols. The supplementary German–Swiss treaty of 13 Nov 1969 (BGBl. 1975 II p. 1318) facilitates the procedure on individual points, in particular as regards direct communication between the judicial authorities in certain constellations.
Domestically, the IRG applies on the German side (Sections 1 ff. IRG), and on the Swiss side the Federal Act on International Mutual Assistance in Criminal Matters (IRSG). The authority responsible for the granting decision in Switzerland is the Federal Office of Justice (Bundesamt für Justiz, BJ); the first-instance forum for appeals is the Federal Criminal Court, and the court of last instance is the Federal Supreme Court.
Switzerland does not apply the Framework Decision on the European Arrest Warrant — the classic two-stage procedure applies: a judicial admissibility review followed by the granting decision of the executive.
Country-specific issues in Switzerland
Fiscal offenses: Historically, Switzerland has provided mutual legal assistance and extradition assistance for purely tax-related offenses only to a limited extent (distinguishing between simple tax evasion and aggravated tax fraud). Since the reform of the IRSG and in light of international standards, practice has become more permeable, yet the principle remains: simple tax evasion is in principle not subject to extradition, whereas aggravated tax fraud is.
Non-extradition of own nationals: Switzerland does not extradite its own nationals (Art. 7(1)(a) IRSG), but offers vicarious prosecution under Art. 6(2) of the European Convention on Extradition. The same applies on the German side under Article 16(2) of the Basic Law.
Direct communication: Under the 1969 supplementary treaty, direct communication between the judicial authorities is permissible in certain cases, which speeds up extradition and mutual-legal-assistance proceedings.
Simplified procedure: Art. 19(2) IRSG provides for the simplified extradition procedure where the requested person consents; the German counterpart is Section 41 IRG.
Detention conditions and the human-rights review
Detention conditions in Swiss remand prisons and correctional facilities meet high Western European standards. No human-rights concerns are documented in German case law; objections under Article 3 ECHR are almost never successfully raised in Switzerland extradition cases.
Switzerland is a party to the ECHR and subject to the jurisdiction of the ECtHR. The CPT (European Committee for the Prevention of Torture) has inspected Switzerland regularly; the reports overall certify conditions that are sound from a rule-of-law perspective, with isolated criticism concerning, for example, the length of pre-trial detention and language difficulties in the care of foreign-language detainees.
In defense practice, human-rights objections to Switzerland extradition cases are regularly not promising; the defense concentrates on admissibility questions and on fiscal or specialty reservations.
Lines of defense
The defense in Switzerland extradition proceedings is regularly technical in nature and turns on the following points of review:
- Article 16(2) of the Basic Law: where the person holds German citizenship, extradition is excluded; vicarious prosecution under Art. 6 of the European Convention on Extradition is to be offered.
- Dual criminality (Art. 2 of the European Convention on Extradition): in white-collar cases and special offenses (e.g. antitrust or securities criminal law), a thorough review of the substantive correspondence.
- Fiscal offenses (Art. 5 of the European Convention on Extradition + 2nd Additional Protocol): distinguishing simple tax evasion from aggravated tax fraud. For simple tax offenses, Switzerland remains reticent.
- Political offense (Art. 3 of the European Convention on Extradition): exclusion where the predominant character is political; rarely applicable in practice.
- Statute of limitations (Art. 10 of the European Convention on Extradition): a review under the law of both states; where prosecution or enforcement is time-barred, extradition is excluded.
- Rule of specialty (Art. 14 of the European Convention on Extradition): limitation of prosecution to the offenses granted; subsequent extension only with Germany's consent.
- Simplified procedure (Section 41 IRG / Art. 19(2) IRSG): where the facts are clear, consenting to the simplified procedure may be advantageous in terms of timing — to be granted only after detailed advice on the legal consequences.
Legal representation in Swiss extradition proceedings
An extradition case is a specialized mutual-legal-assistance procedure that goes beyond classic criminal defense. Engaging a defense lawyer specialized in extradition law at an early stage is regularly decisive — not only after the formal extradition arrest warrant has been issued, but already from the moment of an arrest based on an Interpol notice, an SIS alert or a European Arrest Warrant.
As a Certified Specialist in Criminal Law with a focus on extradition law, I advise and represent affected persons nationwide before the competent Higher Regional Courts and in constitutional complaint proceedings before the Federal Constitutional Court.