Switzerland : Problematic use of diplomatic assurances against torture and ill-treatment
In recent years, the use of diplomatic assurances [1] against torture and ill-treatment when people are extradited to a country which is known for not respecting human rights has extended to Switzerland. In her reply to a letter from the NGO Human Rights Watch in April 2007, federal councillor Micheline Calmy-Rey, on behalf of the Swiss Government, noted that the practice in Switzerland distinguished between cases of expulsion and extradition [2]. The Federal Council considers that the use of diplomatic assurances is justified in extradition cases [3].
Receiving guarantees from the requesting State does not exclude the risk that the extradited person may be subjected to inhuman or degrading treatment.
Nevertheless, on 21 January 2008 the Federal Tribunal confirmed the practice by which extradition may take place when sufficient diplomatic guarantees are given by the State accused of human rights violations. Switzerland rejects requests for extradition only in certain cases where it is clear that diplomatic assurances are unlikely to reduce the risk of human rights violations. A recent example of extradition to a risk country is the case of a Russian businessman extradited to Russia on 30 June 2008. Russia is known to infringe human rights and use torture and ill-treatment. The Federal Tribunal therefore asked Russia to provide additional guarantees, and set up a system of post-return monitoring of the person concerned, before he was extradited. [4] The fact that diplomatic assurances were requested amounts to a recognition that there is a risk to the physical and/or mental integrity of the extradited person in the requesting State. For Switzerland, a theoretical risk of this kind, under the pretext that it has almost always existed, is not sufficient justification for refusing extradition [5]. These arguments and this procedure seriously jeopardise the principle of an absolute ban on torture and are contrary to Article 3 of the United Nations Convention against Torture, which states that ‘No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’ [6]
For these reasons, FIACAT expressly calls on the Federal Council to totally renounce the use of diplomatic assurances against torture and ill-treatment, and not to extradite people to risk countries.
Sources : Human Rights Watch, Federal Tribunal, media articles (Le Temps, World Radio Switzerland), Federal Justice Office.
Please find attached :
 A presentation of the case for your personal information,
A letter to be sent to the address indicated with your name, address and signature at the bottom (also in Word format in a separate file).
Notes :[1] Diplomatic assurances are a written guarantee, in connection with a specific person, that one country requires from another country before sending the person concerned to that country. The idea behind such diplomatic assurances is to ensure that the person, once sent back or extradited, will not be subjected to torture or ill-treatment.
[2] According to the Federal Justice Office, extradition consists of the forced handing over of a wanted person to the requesting State by the requested state. (…) Extradition should be distinguished from expulsion and ‘refoulement’. (...) Expulsion is ordered in the interests of the security of the country of residence, independently of any request by a third country.
[3] Letter of 4 April 2007 from Micheline Calmy-Rey to Holly Cartner, Executive Director of the Europe and Central Asia division of Human Rights Watch : ‘Diplomatic assurances are an appropriate instrument only in cases of extradition, because the requesting state has a crucial interest in respecting such assurances. If it failed to honour an assurance, it would jeopardise the continuation of cooperation in this area.’
[4] For more on information on this case, see the communiqué of 30 June 2008 from the Federal Office of Justice.
[5] communiqué of 30 June 2008 from the Federal Office of Justice
[6] UN Convention Against Torture, Article 3, Paragraph 1. Paragraph 2 also states : ‘For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.’
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