CHAPTER II: COOPERATION WITH THE COURT
Section 3: Communication with the Court
Art. 10 Form and transmission of requests of the Court
3 Subject to subsequent confirmation through ordinary channels, requests for provisional measures, searches, arrests, and other urgent requests may be transmitted:
a. through the International Criminal Police Organization (Interpol); or
b. by any medium capable of delivering a written record.
CHAPTER IV: OTHER FORMS OF COOPERATION
SECTION I: CONDITIONS
Art. 29 Principle
1Cooperation as provided in article 30 shall be granted to the Court if the request and supporting documentation indicate that the act is within the jurisdiction of the Court.
2 If the Court is considering a challenge to its jurisdiction in accordance with articles 17- 19 of the Statute, the Central Authority may postpone execution of a request until the Court has decided; this shall not affect orders of preventive measures.
Art. 30 Forms of cooperation
Cooperation according to this chapter may include any procedural acts not prohibited by Swiss law that facilitate the investigation and prosecution of crimes within the jurisdiction of the Court or that serve to produce the proceeds of such crimes, in particular:
a. the identification and determination of the whereabouts of persons not being prosecuted by the Court or the location of objects;
b. the taking of evidence, including testimony under oath, and the production of evidence,
including expert opinions and reports necessary to the Court;
c. the questioning of any person being investigated or prosecuted;
d. the service of documents, including judicial documents;
e. the temporary transfer of persons in detention as provided in article 39;
f. the examination of places or sites, including the exhumation and examination of grave sites;
g. the execution of searches and seizures;
h. the provision of records and documents, including official records and documents;
i. the protection of victims and witnesses and the preservation of evidence;
j. the identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture.
Art. 31 Preserving measures
1 Upon the explicit request of the Court, the Central Authority may take preventive measures to maintain existing conditions, to protect threatened legal interests, or to preserve endangered evidence.
2 If delay was to jeopardize the proceedings, the Central Authority may order preventive measures as soon as a request is announced and sufficient information is available to assess the conditions. The preserving measures shall be lifted if the Court does not make the request within the period of time specified by the Central Authority.
Art. 32 Application of the procedures of the Court
Upon the explicit request of the Court, requests shall be executed in the manner specified by the Court, in particular:
a. The statements of witnesses and experts shall be substantiated in the manner prescribed by the Statute or the Rules of Procedure and Evidence of the Court.
b. The procedures necessary for judicial admissibility of other evidence may be taken into account.
c. Measures may be taken to ensure the safety or physical or psychological well-being of victims, any witnesses, and their families.
d. Persons involved in the proceedings before the Court may be allowed to participate in the execution of requests and to examine the records.
Art. 33 Handing over of evidence to another State
If the Court requests the consent of the Central Authority to forward evidence to another State that was transmitted to the Court by Switzerland, then:
a. the Central Authority shall grant the request in accordance with the provisions of this chapter if the act is within the jurisdiction of the Court;
b. proceedings in accordance with the provisions of the Federal Law of 20 March 1981 Mutual Legal Assistance shall be undertaken, if the act is a serious crime under the on domestic law of the requesting State.
SECTION II: SPECIFIC FORMS OF COOPERATION
Art. 34 Principles for questioning
1 If a person is questioned in a language other than a language the person fully understands and speaks, a competent interpreter and such translations as are necessary to meet the requirements of fairness shall be provided.
2 The person may refuse to make a statement if:
a. the person would thereby incriminate himself or herself or a person named in this regard in the Rules of Procedure and Evidence of the Court, or if the person would thereby confess guilt; or
b. by refusing to make the statement, the person intends to prevent the disclosure of confidential information pertaining to national security in accordance with article 72 of the Statute.
3 The person shall be informed, prior to being questioned, of the rights provided in paragraph 2.
4 If the person asserts a ground specified in paragraph 2, the Central Authority shall decide on the admissibility of the questioning.
Art. 35 Questioning of a suspect
1 Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court, the person shall also have the following rights in addition to those provided in article 34:
a. to be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
b. to remain silent, without such silence being a consideration in the determination of guilt or innocence;
c. to be defended by counsel of the person’s choosing or, if the person does not have counsel, to have the Central Authority assign counsel or, if applicable, a public defender;
d. to be questioned in the presence of counsel, unless the person has voluntarily waived the right to counsel.
2 The person shall be informed, prior to being questioned, of the rights provided in paragraph 1.
Art. 36 Service of records
The Court may serve its decisions and other records or documents upon recipients in Switzerland directly by mail.
Art. 37 Summons
1 A summons to appear before the Court as a witness or expert shall be accompanied by
the Rule of Procedure and Evidence of the Court on self-incrimination. The Rule shall be
given to the person in a language that the person understands.
2 The person summoned is under no obligation to comply with the summons. If so requested, the Central Authority shall obtain written assurances from the Court guaranteeing the safe-conduct of the witness or expert.
Art. 38 Investigative measures on Swiss territory
1 Upon request of the Prosecutor, the Central Authority may authorize the Prosecutor to conduct investigative measures on Swiss territory as indicated in article 99 paragraph 4 of the Statute.
2 The Central Authority shall inform the authorities which would be responsible for the investigative acts according to Swiss law.
Art. 39 Temporary transfer of persons in detention
1 Persons not accused by the Court who are in detention in Switzerland may be transferred temporarily to the Court for purposes of identification, questioning, confrontation, or other investigative acts, if the person consents in full knowledge of the circumstances.
2 The Court shall grant the transferred person safe-conduct, keep the person in detention, and give assurances that the person will be returned once the purpose of the transfer is satisfied.
Art. 40 Handing over of evidence
1 Objects, documents, or assets that have been seized as evidence, as well as records and decisions shall be provided to the Court upon the request of the Court.
2 If third parties who have acquired rights in good faith, authorities, or victims whose usual residence is in Switzerland claim rights with regard to objects, documents, or assets as described in paragraph 1, their handing over shall be subject to the condition that the Court gives the guarantee to return them without cost after conclusion of the proceedings.
3 Transmission may be postponed as long as the objects, documents, or assets are required for criminal proceedings pending in Switzerland and if the Court consents upon consultation.
Art. 41 Handing over for forfeiture, transfer to the Trust Fund, or restitution
1 Objects or assets subject to a precautionary seizure may at any time, upon request, be transmitted to the Court for the purpose of forfeiture, transfer to the Trust Fund (art. 79 of the Statute), or restitution.
2 Objects and assets referred to in paragraph 1 include:
a. instruments which served to commit the crime;
b. the product or proceeds of a criminal act, their replacement value, and illicit advantages;
c. gifts and other contributions that served as or that were intended as an inducement or reward for the criminal act, as well as their replacement value.
3 Objects and assets shall remain seized until they have been transmitted to the Court or until the Court notifies the Central Authority that it waives transmission.
4 Objects and assets may be retained in Switzerland if:
a. the victim’s usual residence is in Switzerland and the objects and assets are to be returned to the victim;
b. authorities assert rights over them;
c. a person not involved in the criminal act claims that he or she acquired rights to the objects and assets in good faith in Switzerland or, provided that the person’s usual residence is in Switzerland, in a foreign country;
d. the objects or assets are required for criminal proceedings pending in Switzerland or they could be forfeited in Switzerland.
5 If a person asserts a claim provided for in paragraph 4, the handing over of the objects or assets to the Court is suspended until the legal situation is clarified. The contested objects or assets may only be handed over to the person if:
a. the Court consents;
b. the authorities consent in the case of paragraph 4 subparagraph b; or
c. Swiss authorities recognize the validity of the claim.
CHAPTER IV: OTHER FORMS OF COOPERATION
SECTION III: PROCEDURE
Art. 42 Content of a request
1 A request shall contain:
a. a concise statement of the essential facts underlying the request, as well as the legal description of the act;
b. information as accurate and complete as possible about the person against whom the criminal proceedings are being conducted;
c. a concise statement of the purpose of the request and the cooperation sought, including the legal basis and the grounds for the request;
d. if applicable, as much detailed information as possible about the location or identification of any person or about any place or site that must be found or identified in order for the cooperation sought to be provided;
e. if applicable, the reasons for and details of any procedure or condition to be followed.
2 If a request does not satisfy the requirements of paragraph 1, the Central Authority may ask that the request be improved or supplemented; this shall not affect orders of preserving measures.
Art. 43 Decision to proceed and execution of request
1 Upon considering the request, the Central Authority shall issue a decision to proceed containing a summary explanation that cannot be appealed. The Central Authority shall designate the federal authorities or the canton responsible for the execution of the request and shall order the measures admissible for cooperation.
2 If the immediate execution of a request would interfere with an ongoing investigation or prosecution of a case different from that to which the request refers, the Central Authority may postpone the execution of the request for a period of time agreed upon with the Court.
Art. 44 National Security
1 If the Central Authority has serious grounds to believe that the execution of a request could prejudice national security interests, it shall immediately inform the Department.
2 Where paragraph 1 applies, the Department may suspend execution measures.
3 Upon request of the Department, the Federal Council shall deny the request of the Court for cooperation, to the extent that granting the request would prejudice national security.
Art. 45 Notification of decisions
1 The executing authorities and the Central Authority shall notify their decisions upon the persons who, as provided in article 50, have a right to appeal and whose usual residence or service address is in Switzerland.
2 The right to notification shall expire once the order terminating the proceedings is executory.
Art. 46 Assistance at the proceedings and access to the files
1 To the extent necessary to protect their interests, persons may assist at the proceedings and examine the records.
2 The rights provided in paragraph 1 may, to the extent necessary, be restricted:
a. in the interest of the proceedings before the Court;
b. to protect an essential legal interest, provided that the Court asks for such protection;
c. due to the nature or the urgency of the measures to be taken;
d. to protect essential private interests;
e. in the interest of Swiss proceedings.
3 The holders of documents have the right to inform their clients of the existence of a request and of all facts related to it, provided this has not expressly been prohibited by the
Central Authority either in exceptional circumstances or upon request of the Court and under menace of sanctions as provided in article 292 of the Criminal Code.
Art. 47 Simplified procedure
1 Persons who, as provided in article 50, have a right to appeal, in particular the holders of objects, documents, information, or assets, may consent to the handing over thereof to the Court until completion of the proceedings. Such consent shall be irrevocable.
2 If all persons entitled according to paragraph 1 give their consent, the executing authorities shall record this consent in writing and notify the Central Authority. The Central Authority shall complete the proceedings without issuing a final order.
3 If the handing over includes only part of the requested objects, documents, information,
or assets, the regular procedure shall be followed for the remainder.
Art. 48 Final decision
When the Central Authority considers a request to be entirely or partially completed, it shall issue a decision, with reasons on whether cooperation is granted and to what extent.
CHAPTER IV: OTHER FORMS OF COOPERATION
SECTION IV: APPEALS
Art. 49 Administrative court appeal
The final order of the Central Authority shall be subject to administrative court appeal to the Federal Supreme Court.
Art. 50 Right to appeal
Shall be entitled to appeal whoever:
a. is not accused in the proceedings before the Court;
b. is personally and directly affected by a measure;
c. has an interest worthy of protection in the modification or suspension of the decision; and
d. cannot assert his or her rights before the Court or cannot reasonably be expected to do so.
Art. 51 Grounds and deadline for appeal
1 Appeals may be lodged to allege violations of federal law, including excess or abuse of discretion.
2 If the appellant asserts grounds which, according to the provisions of the Statute, may only be adjudicated by the Court, then the Central Authority shall forward the appeal to the Court, unless the Court has already decided.
3 Appeals against a final order must be lodged within ten days of notification of the order.
4 The person entitled who intervenes in a pending proceeding may no longer challenge decisions that have become executory.
Art. 52 Postponement of proceedings
1 Appeals have suspensive effect.
2 In urgent cases as indicated in article 99 paragraph 2 of the Statute, the Central Authority may apply to the Federal Supreme Court for annulment of the suspension.
3 If the Federal Supreme Court annuls the suspension, it may join this decision with the condition specified in article 93 paragraph 8 subparagraph b of the Statute.
1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
(a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
(i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
(a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(b)
(i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.