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Treaty between Canada and the Swiss Confederation on Extradition [1996] CATSer 9 (19 March 1996)

E101348 - CTS 1996 No. 15

TREATY BETWEEN CANADA AND THE SWISS CONFEDERATION ON EXTRADITION

CANADA AND THE SWISS CONFEDERATION,

DESIRING to provide for more effective co-operation in the suppression of crime and to facilitate the relations between the two States in the area of extradition,

REAFFIRMING their respect for each other's legal systems and judicial institutions,

HAVE AGREED as follows:



ARTICLE 1

Obligation to Extradite

Each Contracting State agrees to extradite to the other, in accordance with the provisions of this Treaty, persons who are wanted for prosecution or the imposition or enforcement of a sentence or an order for deprivation of liberty in the Requesting State for an extraditable offence.



ARTICLE 2

Extraditable Offences

1. Extradition shall be granted for conduct which constitu­tes, under the laws of both States, offences that are punishable by imprisonment or other deprivation of li­berty for a maximum period of at least one year, or by a more severe penalty. Where the request for extradition relates to a person convicted of such an offence who is wanted for the enforcement of a sentence of imprisonment or other deprivation of liberty, extradition shall be granted if a period of at least six months of imprison­ment or other deprivation of liberty remains to be ser­ved.

2. If the request for extradition relates to a number of offences, each of which is punishable under the laws of both States, but some of which do not meet the other requirements of paragraph 1, the Requested State may also grant extradition for such offences.

3. If the request for extradition relates to a sentence of both imprisonment or other deprivation of liberty as pro­vided in paragraph 1 and a pecuniary sanction, the Re­quested State may also grant extradition for the enforce­ment of the pecuniary sanction.

4. If the offence for which extradition is requested has been committed outside the territory of the Requesting State, extradition shall be granted if the person whose extradition is requested is a national of the Requesting State. If the person whose extradition is requested in respect of such an offence is not a national of the Requesting State, the Requested State may, in its discre­tion, grant extradition.

5. For the purpose of this Article:

(a) an offence shall be an extraditable offence whether or not the laws of the Contracting States place the offence within the same category or denominate the offence by different terminology;

(b) the totality of the acts or omissions alleged against the person whose extradition is requested shall be taken into account in determining whether the conduct would amount to an extraditable offence in the Re­quested State.

6. Extradition may be granted irrespective of when the offence in relation to which extradition is requested was committed, provided that the conduct:

(a) was an offence in the Requesting State at the time it occurred; and

(b) would, if it had occurred in the Requested State at the time of the making of the request for extradition, have constituted an offence against the laws in force in that State.



ARTICLE 3

Exceptions to Extradition

1. Extradition shall not be granted in any of the following circumstances if:

(a) the offence for which extradition is requested is re­garded by the Requested State as a political offence;

(b) there are substantial grounds for believing that a request for extradition for an ordinary criminal of­fence has been made for the purpose of prosecuting or punishing a person on account of that person's race, religion, nationality or political belief;

(c) the offence for which extradition is requested con­stitutes an offence under military law which is not an offence under ordinary criminal law;

(d) final judgment has been rendered in the Requested State in respect of the offence for which the person's extradition is requested; or

(e) the person whose extradition is requested cannot, ac­cording to the laws of either Contracting State, be prosecuted or punished by reason of prescription.

2. Extradition may be refused in any of the following cir­cumstances if:

(a) the offence for which extradition is requested is re­garded by the Requested State as a fiscal offence;

(b) the person whose extradition is requested is a natio­nal of the Requested State. Where the Requested State refuses to extradite a national of that State it shall, if the other State so requests, submit the case to the competent authorities in order that pro­ceedings for the prosecution of the person in respect of all or any of the offences for which extradition has been requested may be taken. Nationality shall be determined at the time of the commission of the of­fence for which extradition is requested;

(c) the offence for which extradition is requested is subject to the jurisdiction of the Requested State and that State will prosecute that offence. In such a case, before refusing, the competent authority of the Requested State, after consulting with the competent authority of the Requesting State, shall decide whether to extradite the person or to submit the case to its competent authorities for the purpose of pro­secution. In making its decision, the Requested State shall consider all relevant factors, including but not limited to:

- the time and place of commission of each offence or place of intended commission;

- the place where the effects occurred or were inten­ded to occur;

- the respective interests of the Contracting States;

- the nationality of the person sought and victim;

- the habitual place of residence of the person sought; and

- the availability and location of the evidence;

(d) the offence for which the extradition is requested or any other offence for which the person may be detai­ned or tried in accordance with this Treaty, is pu­nishable by death under the laws of the Requesting State, unless that State undertakes that the death penalty will not be carried out; or

(e) final judgment has been rendered in a Third State in respect of the offence for which the person's extra­dition is requested:

- if the judgment resulted in the person's acquittal; or

- if the term of imprisonment or other deprivation of liberty to which the person was sentenced has been completely enforced or has been the subject of a pardon or an amnesty.

ARTICLE 4

Channels of Communication

Requests for extradition and any subsequent correspondence shall be communicated between the Departments of Justice of the Contracting States; however, use of the diplomatic chan­nel is not excluded.



ARTICLE 5

The Request and Supporting Documents

1. All requests for extradition shall be in writing and supported by:

(a) information concerning the identity, and if avai­lable, nationality, probable location of the person sought, a physical description, photograph and fingerprints;

(b) a summary of the facts of the case, including the time and location of the offence;

(c) the texts of the laws describing the essential ele­ments and the designation of the offence for which extradition is requested, the punishment for the of­fence, and any period of prescription relating to the prosecution or the execution of the punishment for the offence; and

(d) a statement of the jurisdiction of the requesting State over the offence if it was committed outside its territory.

2. A request for extradition which relates to a person char­ged with an offence or convicted in absentia shall be supported by:

(a) a copy of the order of arrest; and

(b) in the event that the law of the Requested State so requires, evidence that would justify committal for trial if the conduct had been committed in the Re­quested State. For this purpose a summary of the facts of the case setting out the evidence, including evidence of identity of the offender, whether or not the evidence was gathered or obtained in the Re­questing State, shall be admitted in evidence as proof of the facts contained therein, whether or not this evidence would otherwise be admissible under the law of the Requested State, provided that the summary is signed by a judicial authority or a prosecutor who certifies that the evidence described in the summary was obtained in accordance with the law of the Re­questing State. The Requesting State may include as part of the summary of the facts, any statements, reports, reproductions or other useful documentation.

3. A request for extradition which relates to a person who has been convicted shall be supported by:

(a) a copy of the judgment of conviction or, if the per­son has been convicted but not yet sentenced, a sta­tement by a judicial authority to that effect;

(b) a copy or a statement of the charge upon which the person has been convicted;

(c) a copy of the order of arrest or a statement that the person is subject to detention on the basis of the judgment of conviction; and

(d) if the sentence has been pronounced, a statement of the sentence or the remainder to be served.

4. All documents and copies thereof submitted in support of a request for extradition and appearing to have been certified, issued or signed by a judicial authority or a public official of the Requesting State shall be admitted as evidence in extradition proceedings in the Requested State without having to be taken under oath or affirma­tion and without proof of the signature or of the offi­cial character of the person appearing to have signed them.

5. Any translation of documents submitted in support of a request for extradition provided by the Requesting State shall be admitted for all purposes in extradition pro­ceedings.



ARTICLE 6

Authentication of Supporting Documents

No authentication or further certification of documents sub­mitted in support of the request for extradition shall be re­quired.

ARTICLE 7

Language

All documents submitted in accordance with this Treaty shall be in or translated into an official language of the Reque­sted State, to be specified by the Requested State in each case.

ARTICLE 8

Additional Information

If the Requested State considers that the documentation fur­nished in support of a request for extradition is not suffi­cient to enable extradition to be granted, that State shall request that additional information be furnished within such time as it specifies.



ARTICLE 9

Simplified Extradition

Extradition may be granted with the consent of the person sought pursuant to the provisions of this Treaty notwithstan­ding that the requirements of paragraphs 1, 2 and 3 of Ar­ticle 5 have not been complied with.



ARTICLE 10

Provisional Arrest

1. In case of urgency, a Contracting State may apply through the facilities of the International Criminal Police Orga­nization (INTERPOL) or by any other means for the provi­sional arrest of the person sought. The application may be transmitted by any means affording a record in wri­ting.

2. The application for provisional arrest shall include:

(a) information concerning the identity, and if avai­lable, nationality, probable location of the person sought, and a physical description;

(b) a statement that extradition will be requested;

(c) the name, date and place of the offence and a brief description of the facts of the case;

(d) a statement indicating that an order of arrest exists or a conviction was pronounced with the date, place and issuing authority; and

(e) a statement indicating the maximum deprivation of liberty that may be imposed or that was imposed and, where applicable, that remains to be served.

3. On receipt of an application for provisional arrest the Requested State shall, subject to its laws, take neces­sary steps to secure the arrest of the person sought and the Requesting State shall be promptly notified of the result of its request.

4. Provisional arrest shall be terminated if, within a pe­riod of forty days after the apprehension of the person sought, the Competent Authority of Canada or of Switzerland has not received the formal request for extradition and the supporting documents. Upon an application setting out the grounds for extension, this period may be extended as an exception for a maximum of twenty days.

5. The release of a person pursuant to paragraph 4 of this Article shall not prevent the institution or continuation of extradition proceedings if the request and the suppor­ting documents are received subsequently.



ARTICLE 11

Conflicting Requests

1. Where requests are received from two or more states for the extradition of the same person, the Requested State shall determine to which of those States the person is to be extradited and shall notify the requesting states of its decision.

2. In determining to which State a person is to be extradi­ted, the Requested State shall have regard to all rele­vant circumstances and, in particular, the relative se­riousness of the offences if the requests relate to dif­ferent offences, the time and place of commission of each offence, the respective dates of the requests, the natio­nality of the person, the habitual place of residence of the person, and the possibility of re-extradition to a third state.



ARTICLE 12

Decision and Surrender

1. The Requested State shall, as soon as a decision on the request for extradition has been made, communicate that decision to the Requesting State. Reasons shall be given for any complete or partial rejection of an extradition request.

2. Where extradition is granted, the Requested State shall inform the Requesting State of the length of time for which the person claimed was detained in custody as a result of the extradition request.

3. Where extradition is granted, the Requested State shall surrender the person from a point of departure in its territory convenient to the Requesting State.

4. The Requesting State shall remove the person from the Re­quested State within such reasonable period as the Reque­sted State specifies and, if the person is not removed within that period, the Requested State may refuse to ex­tradite that person for the same offence.

5. If circumstances beyond its control prevent a Contracting State from surrendering or removing the person to be ex­tradited it shall notify the other Contracting State. The Contracting States shall decide upon a new date of sur­render and the provisions of paragraph 4 of this Article shall apply.

ARTICLE 13

Postponed or Temporary Surrender

1. When the person sought is being proceeded against or is serving a sentence in the Requested State for an offence other than that for which extradition is requested, the Requested State may surrender the person sought or post­pone surrender until the conclusion of the proceedings or the service of the whole or any part of the sentence im­posed. The Requested State shall inform the Requesting State of any postponement.

2. To the extent permitted by its law, where a person has been found extraditable the Requested State may tempora­rily surrender the person sought for the purposes of pro­secution to the Requesting State in accordance with con­ditions to be determined between the Contracting States. A person who is returned to the Requested State following a temporary surrender may be finally surrendered to serve any sentence imposed, in accordance with the provisions of this Treaty.



ARTICLE 14

Surrender of Property

1. The Requested State shall, in so far as its law permits and at the request of the Requesting State, seize and surrender property:

(a) that may be required as evidence; or

(b) that has been acquired as a result of the offence and which, at the time of the arrest, is found in the possession of the person claimed or is discovered subsequently.

2. The property mentioned in paragraph 1 of this Article shall be surrendered even if extradition having been granted to, cannot be carried out owing the death or escape of the person sought.

3. When the property is liable to seizure or confiscation in the Requested State, the latter may, in connection with pending criminal proceedings, temporarily retain or sur­render it over on condition that it be returned.

4. Any rights that the Requested State or third parties may have acquired in the property shall be preserved. Where these rights exist, the property shall be returned without charge to the Requested State as soon as possible after the trial.



ARTICLE 15

Rule of Speciality

1. A person who has been extradited shall not be prosecuted, sentenced or detained for any offence committed prior to the surrender other than that for which that person was extradited, nor shall the person's liberty be restricted for any other reason, except in the following cases:

(a) where the Requested State consents;

(b) where the person, having had an opportunity to leave the Requesting State, has not done so within forty-five days of final discharge, or has returned to that State after having left it; or

(c) where the person extradited consents before a judi­cial authority in the Requesting State.

2. A request for the consent of the Requested State under paragraph 1 of this Article shall be accompanied by the documents required by Article 5 as well as a record of any statement made by the extradited person in respect of the offence concerned.

3. If the charge for which the person was extradited is sub­sequently changed, that person may be prosecuted or sen­tenced provided the offence under its new description is:

(a) based on substantially the same facts contained in the extradition request and its supporting documents; and

(b) punishable by the same maximum penalty as, or a les­ser maximum penalty than, the offence for which that person was extradited.



ARTICLE 16

Re-extradition to a Third State

1. Where a person has been surrendered to the Requesting State that State shall not extradite the person to any Third State for an offence committed before that person's surrender unless:

(a) the Requested State consents to that extradition;

(b) the person has had an opportunity to leave the Re­questing State and has not done so within forty-five days of final discharge in respect of the offence for which that person was surrendered or has returned to the Requesting State after having left it; or

(c) the person consents before a judicial authority in the Requesting State.

2. The Requested State may request the production of the do­cuments required by Article 5 in relation to any consent pursuant to paragraph 1 (a) of this Article.



ARTICLE 17

Transit

To the extent permitted by its law, transit through the ter­ritory of one of the Contracting States shall be granted on a request in writing by the other Contracting State. The re­quest for transit:

(a) may be transmitted by any means affording a record in writing; and

(b) shall contain the information referred to in para­graph 2 of Article 10.



ARTICLE 18

Expenses

1. The Requested State shall make all necessary arrangements for and meet the cost of any proceeding arising out of a request for extradition including a prosecution as a re­sult of a refusal to grant extradition on the basis of nationality.

2. The Requested State shall bear the expenses incurred in its territory in the arrest and detention of the person whose extradition is requested until the person is sur­rendered to a person nominated by the Requesting State.

3. The Requesting State shall bear the expenses incurred in conveying the person from the territory of the Requested State.

ARTICLE 19

Conduct of Proceedings

1. In the case of a request for extradition presented by the Swiss authorities, the Attorney General of Canada shall conduct the extradition proceedings.

2. In the case of a request for extradition presented by Ca­nadian authorities, the Federal Office for police Matters shall conduct the extradition proceedings.



ARTICLE 20

Other Obligations

This Treaty shall not affect any obligation that the Contrac­ting States may have undertaken or may undertake under any multilateral convention to which they are both party.

ARTICLE 21

Consultation

1. The Contracting States shall consult, at the request of either, concerning the interpretation or application of this Treaty or with respect to a specific case.

2. Any difference that is not resolved by the Contracting States shall be the subject of negotiations as to the interpretation or application of this Treaty.



ARTICLE 22

Entry into Force and Termination

1. This Treaty shall enter into force one hundred eighty days after the date on which the Contracting States have notified each other in writing that their respective requirements for the entry into force of this Treaty have been met.

2. On the entry into force of this Treaty, the provisions of:

(a) the Treaty between Great Britain and Switzerland for the Mutual Surrender of Fugitive Criminals, signed in Berne on 26 November 1880; and

(b) the Supplementary Convention to that Treaty, done at London on 29 June 1904;

shall cease to have effect between Canada and Switzerland, except with respect to formal requests received prior to that date.

3. Either Contracting Party may terminate this Treaty by no­tice in writing at any time and it shall cease to be in force on the one hundred and eightieth day after the day on which notice is given.

IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Treaty.

DONE AT Berne, on this 7th day of October, in English and French, both texts being equally authentic.

FOR THE GOVERNMENT OF CANADA

Jacques S. Roy

FOR THE SWISS CONFEDERATION

Arnold Koller

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