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Conditional mutual legal assistance: is there still a third circle in the “three circles” theory?

 Robert Zimmermann

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- Robert Zimmermann
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When the person cited in an application for mutual legal assistance lodged by a foreign State is exposed to the specific risk of ill-treatment in the applicant State, prohibited in particular by Art. 3 of the European Convention on Human Rights (ECHR,) an international practice has developed allowing the State to which the application has been addressed to make its cooperation conditional upon the applicant State pledging guarantees in favor of the person concerned. This practice likewise exists in Swiss law (Art. 80p of the Swiss Federal Law on International Mutual Assistance in Criminal Matters/IMAC). When it comes to respect for human rights in the applicant State, the Swiss Federal Supreme Court (FCC) has established the “three circles” theory (ATF 134 IV 156). The first circle consists of applicant States deemed to respect human rights, States in which nobody has any grounds for fear, hence no guarantees are needed. The second circle consists of States where the person against whom proceedings are being taken may have good reason to fear exposure to ill-treatment; the pledging of formal guarantees by the applicant State is therefore essential. States in the case of which even the pledging of guarantees does not rule out the feared risk are relegated to the third circle: guarantees are pointless and mutual assistance is refused. According to current practice, the first circle comprises Member States of the Council of Europe that are bound by the ECHR and subject to the jurisdiction of the European Court of Human Rights; that being so, no guarantees have been required from Latvia, Macedonia, Montenegro, Poland, Romania and Slovakia. The second circle includes Albania, Bosnia-Herzegovina, Burkina Faso, Ecuador, Georgia, Kosovo, Mexico, Moldova, Russia, Serbia, Taiwan, Tunisia, Ukraine and Venezuela. The third circle comprises Iran and Turkey, after the repression in the wake of the abortive coup d’état of 15 July 2016.

The Sultanate of Oman has applied for mutual legal assistance from Switzerland, asking for the release of banking documentation and the placing of a freeze on funds deposited in the accounts of which A. is the holder in Switzerland. A., a defendant in proceedings in Oman where he resides, opposed this application for legal assistance primarily because of the situation concerning human rights in Oman (see Art. 2, letter a, IMAC). The Office of the Attorney General of Switzerland (OAG), as the authority responsible for acting on the Omani application for legal assistance, held that there were no grounds for declining legal assistance or even for imposing any conditions. The OAG based its view on the concordant opinions of the Swiss Federal Office of Justice (FoJ) and the Swiss Federal Department of Foreign Affairs (FDFA). In other words, those authorities placed the Sultanate of Oman in the first circle.

The Swiss Federal Criminal Court (FCC) partially endorsed the appeal filed by A. against the decision to grant mutual legal assistance, which it cancelled. It referred the case back to the FoJ to impose the conditions on legal assistance set out in the recitals of its ruling and to ascertain from the FDFA whether the Sultanate of Oman can furnish these guarantees and whether the Embassy of Switzerland in Oman will be able to verify compliance (FCC ruling RR.2017.94 dated 7 December 2017).

In reaching this conclusion and after pointing out that the Sultanate of Oman had ratified neither UN Covenant II nor the UN Convention against Torture (UNCAT), the FCC conducted a thorough examination of the human rights situation in Oman, backed by international reports as supportive evidence. The least that can be said is that the picture is not brilliant. Prisoners are subjected to various kinds of torture, deprived of contacts with their families and their defense counsel, held in secret detention centers, placed in isolation, deprived of pharmaceuticals, sleep, hygiene and decent sanitary conditions (recital 7 to the FCC ruling). In conclusion on this point, the FCC held that the assessment of the situation in Oman made by the FoJ was untenable. While one might have expected Oman to be placed in the third circle and legal assistance declined, the FCC believed it possible to impose conditions on legal assistance. It listed twenty-four, relating to conditions of detention, judicial guarantees, relations between the prisoner and his defense counsel, the presumption of innocence, the ne bis in idem principle, and prohibition of the use of force against detainees. The Omani authorities must also agree to keep the Embassy of Switzerland in Oman regularly informed of developments in the criminal proceedings and to ensure the detainee is free to make contact with the Embassy (recital 8). This leaves us rather baffled. If the authorities of Oman reject these conditions, the case will be closed. If, on the other hand, the authorities of Oman agree to the Swiss demands, the FoJ will be faced with the awkward questions of determining whether the undertaking given by Oman is credible and whether the Swiss representation in Oman will be capable of exercising the supervision that the FCC is asking it to provide in terms of monitoring the detention – even though the FDFA believes that there are no particular problems in this regard in Oman.

By trying to move States that should normally be listed in the third circle up to the second circle and by requiring guarantees from States that would be better advised to take human rights seriously, Switzerland is running the risk of discrediting itself. It would be more sensible (and more courageous) to revert to the stringent classification laid down in ATF 134 IV 156.

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