A new decision of the Court of Complaints of the Federal Criminal Court RR.2019.191 dated April 22, 2020 reports a case where Portugal asked Switzerland, on the basis of the European Convention on Extradition (EECxtr)In the case of a robbery committed in 2007 (for an amount of a little more than € 900), to extradite a Cape Verdean national to stand trial.

The EECxtr requires member states – including Switzerland and Portugal – to surrender to each other individuals who are being prosecuted for an offence or are wanted for the purpose of carrying out a sentence or a security measure by the judicial authorities of the requesting state. In accordance with the principles of good faith in international law and pacta sunt servanda, Switzerland is obliged to respect the obligations arising from its international commitments. Exceptions to the obligation to extradite are only permitted if they are provided for in the provisions of the ECCxtr or in other international rules. Therefore, in a case where Portugal requests extradition to Switzerland, only another international rule, binding for Portugal and Switzerland, can justify an exceptional refusal to extradite, if the reasons are particularly serious.

This makes it particularly difficult to oppose an extradition request based on this Convention. However, this is what the Court of Complaints of the Federal Criminal Court has just recognized on the basis ofarticle 8 ECHR.

Article 8 ECHR, whose equivalent is found in Art. 13 Cst, guarantees everyone the fundamental right to respect for his private and family life, his home and his correspondence. If it does not give the right to reside in the territory of the State or not to be expelled or extradited, an extradition may, in certain circumstances, lead to a violation of Art. 8 ECHR as soon as it results in the destruction of family ties. Thus, case law has regularly emphasized the great importance of the fundamental right of persons deprived of their liberty to maintain sufficient contact with their next of kin, with the protection of fundamental rights also applying, in principle, to persons prosecuted under extradition legislation and within the scope of the applicability of the EEC.xlvii

In this case, the person whose extradition was requested was a mother of three children aged 11, 13 and 15 living either near her or not far from her in Switzerland, and who was in a situation “ quite exceptional In the opinion of the Court of Complaints of the Federal Criminal Court, this was “quite exceptional”, so much so that the Court of Complaints finally refused the extradition. See only: “The pre-named, notwithstanding her financial precariousness, her educational limitations and a certain fragility is the reference point for his childrenthe SPJ stating, on the one hand, its full collaboration during the conduct of the various actions implemented and, on the other hand, the fact that her children’s difficulties “would be multiplied by the distance from their primary attachment figure (act. 1.18, p. 2). Although C. and D.’s father has joint parental authority and pays child support, he also delegates his obligations towards his children to their mother who is, in practice, the reference person. In the case of E., even if she was placed because of her behavioural problems, she is likely to need her mother’s support, as there is no connection with her father. As for C., who lives with her mother, who has no particular educational problems and who shares a fusional bond with her mother, she is at risk of seeing her psychological state deteriorate, as separations from her mother create in her – according to the youth protection authorities – insecurity and anxiety. Finally, as far as D. is concerned, he is certainly surrounded by a multidisciplinary team at the G. home, but he maintains regular contact with his mother as she regularly hosts him at home on extended weekends (from Friday or Monday according to the SPJ calendar for April and May 2019 [act. 1.12]). In these circumstances, extraditing A. would result, de facto, in the break-up of the family and the destruction of family ties; maintaining relations by telephone or letter would be particularly difficult, if not impossible, especially for D. who suffers from a severe disability. Such a serious interference thus violates Art. 8 ECHR from the perspective of respect for family life. Moreover, the extradition of the appellant would reduce to nothing the efforts undertaken since 2011 by the SPJ in order to re-establish and consolidate, in the best possible conditions, the parental function of the appellant, which has also allowed the return of E. and C. to their mother after 4 years of placement.

The appeal is therefore admitted and the decision of the Federal Office of Justice (FOJ) which granted the extradition to Portugal is annulled.

A ruling that enshrines a recognized, but rarely accepted, hypothesis, which is why it should be savored without moderation.

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