THE LEGAL REQUIREMENTS FOR AUTHORISING SECRET FOREIGN INVESTIGATIONS IN SWITZERLAND
The case was decided by the Swiss Federal Supreme Court on 25 October 2005. In this matter, a Dutch Public Prosecutor requested Switzerland to authorise the hiring of an infiltrated agent in Switzerland in the course of criminal proceedings conducted in the Netherlands for participation in a criminal organization, drug trafficking and money laundering.
The court determined that the recourse to an infiltrated agent is in itself a particularly sensitive measure. Additional difficulties are encountered where the agent is operating under a foreign letter of request. The intervention of a foreign agent can be particularly problematic since the exchange of information between the agent and his hierarchy cannot be easily controlled in Switzerland, thereby putting in jeopardy a fundamental requirement of international mutual assistance under Swiss law, whereby no information can be used by the requesting authority prior to a final and binding decision of the Swiss authorities ordering disclosure. It is also impractical for the Swiss authorities to supervise the terms and conditions of the hiring of a foreign agent.
In Switzerland, the Federal Act on International Mutual Assistance in Criminal Matters (IMAC) governs the admissibility of a foreign letter of request. The act provides that cooperation may only be granted where the requested measure of assistance is consistent with Swiss law or arises from an international treaty.
Article 63, section 2 of the IMAC enumerates a number of admissible measures of assistance but this list is not exhaustive. The real test is that the requested measure must exist under Swiss law. This has been the case for covert investigations since 1 January 2005, when the Federal Act on Covert Investigations was enacted (FLCI).
The FLCI does not apply explicitly to mutual assistance proceedings. As explained by the court, this in itself is no impediment to the granting of a request for mutual assistance for conducting covert investigations in Switzerland. In particular, Switzerland is party to the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters which specifically provides that the requesting and the requested parties may agree to assist one another in the conduct of investigations into crime by officers acting under covert or false identity.
Switzerland has also concluded bilateral treaties allowing covert investigations, in particular with Germany.
Under Swiss law, covert investigations may only be ordered if the following requirements are met (article 4, section 1 of the FLCI):
• first of all, there must be a reasonable suspicion that particularly serious offences have been committed or are likely to be perpetrated;
• measures taken to investigate the offence have not yielded results or pending enquiries have no chance of succeeding or would be disproportionately difficult to pursue; and
• the offence must fall into a list of offences deemed to be sufficiently serious within the meaning of the law (article 4 of the FLCI).
The authorisation to hire an infiltrated agent is within the sole jurisdiction of a judicial authority. The infiltrated agent himself must be hired at least on a provisional basis by a police force and must not be rewarded on his performance. The agent must regularly report his activity and findings to his person of contact. The law also requires the accused to be informed at the latest upon the closing of the preliminary investigations that he has been the target of covert investigations.
If covert investigations arise from a request for mutual assistance (where a foreign state seeks to hire an agent in Switzerland), further requirements need to be met. For instance, the measure must be requested in furtherance of criminal proceedings in respect of which foreign law provides for a recourse to a judicial authority competent in criminal matters. Mutual assistance in criminal matters involves the conduct of criminal investigations in the requesting state.
The Federal Supreme Court added another condition which is provided neither by the FLCI nor by the IMAC. In its judgment of 25 October 2005, the court determined that this form of assistance would be granted only to states that are bound to Switzerland by a treaty that explicitly provides for the recourse to an infiltrated agent and that governs the terms and conditions for hiring and supervising such an agent. The rationale for this rather stringent requirement is that the exchange of information between a foreign infiltrated agent and a foreign authority is usually difficult to supervise and thus, there should be a particular relationship of trust between the requesting state and the requested state. A privileged relationship should be inferred from the existence of a treaty governing the conditions of hiring of an infiltrated agent as well as the scope of his activities. This is the case for the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters which provides that the requested party will have due regard to its national law and procedures and will agree with the requesting party the duration of the covert investigation, the detailed conditions and the legal status of the officers concerned during the investigations. In addition, the parties involved must cooperate to ensure that the covert investigation is prepared and supervised and will make arrangements for the security of the officers acting under covert or false identity.
In the case it took under consideration, the court noted that the Netherlands had not ratified the Additional Protocol and thus, the court denied the request for mutual assistance. In the absence of legal provisions governing the hiring and activities of a foreign infiltrated agent, compliance with the requirements of mutual assistance and in particular with the requirement that information obtained in Switzerland should not be used by the requesting authority prior to a final and binding Swiss decision ordering disclosure, was not sufficiently guaranteed.
Some legal commentators have criticised the court's decision to subject foreign covert investigations to such stringent conditions. They submit that it should be enough to ensure that the covert investigations have been duly authorised under the laws of the requesting state. We submit, however, that the test applied by the court is a reasonable one that takes into account the sensitive issues raised by trans-border covert investigations.
CRIMINAL LIABILITY OF A FOREIGN AGENT IN THE ABSENCE OF AUTHORISATION
A foreign infiltrated agent operating in Switzerland without authorisation incurs the risk of prosecution. Article 271 of the Swiss Penal Code (SPC) prohibits any acts for a foreign state on Swiss territory. Acting for a foreign state includes all actions that, under Swiss law, lie within the competence of a Swiss public authority. The collecting of material intended to serve as evidence in foreign proceedings falls within the scope of article 271 of the SPC.
Swiss law not only prohibits engaging in unauthorised acts on Swiss territory, but also facilitating such acts. Thus, if the infiltrated agent is acting in Switzerland without proper authorisation, criminal liability would extend to persons facilitating this activity, in particular Swiss officers or foreign officials instructing the agent.
NEW SWISS LEGISLATION
On 5 October 2007, the Swiss parliament adopted the Federal Uniform Code of Criminal Procedure (Uniform Code) which will replace as of 1 January 2010 various laws of criminal procedure that have been enacted by the cantons and the Swiss Confederation.
As a rule, the Uniform Code will not govern the granting of international legal assistance; however, it will apply to specific matters that are not regulated by other federal legislation or international treaties (article 54 of the Uniform Code). The Uniform Code incorporates provisions governing covert investigations (article 286 of the Uniform Code) which currently may be found in the FLCI.
To the extent that the new law (article 54 of the Uniform Code) clearly provides for the granting of assistance in the absence of other relevant legislation, there is no certainty that the current (relatively restrictive) approach will be maintained. Even if there is no international treaty providing for the application of the domestic law of the requested party, the Swiss authorities could conceivably grant a foreign request to conduct covert investigations in Switzerland, subject to compliance with the relevant provisions of the Uniform Code.
The Swiss authorities will have to assess whether the request complies with the tenets of Swiss law which have been described above. If so, the granting of the request will no longer depend on a "privileged relationship" between Switzerland and the requesting state embodied in an international instrument such as the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters.