Swiss Federal Supreme Court, 27.02.2026, 1C_480/2025
Facts
A French national, sentenced in 2024 by the Geneva Criminal Court to eight years of imprisonment and a lifetime ban from Swiss territory, requested a transfer to France to serve the remainder of his sentence. The Federal Office of Justice (FOJ) consulted the Geneva Public Prosecutor's Office, which opposed the request. The Public Prosecutor argued that serving the sentence in Switzerland would not compromise the prisoner's social reintegration, noting that the geographical proximity between the place of detention and his family's home in France was sufficient. Relying exclusively on this opinion, the FOJ refused to submit a transfer request to the French authorities.
The prisoner appealed this decision. The Complaints Chamber of the Federal Criminal Court (FCC) declared the appeal inadmissible. It ruled that, although the refusal of a transfer is an act of mutual legal assistance, the prisoner does not have a subjective right to a transfer, but can only express a wish. Consequently, he lacks the standing to appeal a refusal decision. The Complaints Chamber also dismissed any claims of procedural rights violations. The prisoner then filed a public law appeal with the Federal Supreme Court.
Legal Analysis
The Federal Supreme Court examines two main legal issues.
First, it addresses the admissibility of an appeal against an FOJ refusal to request a prisoner's transfer. It recalls its previous case law (BGE 118 Ib 137) which denied this possibility on the grounds that the prisoner has no right to a transfer. However, the Federal Supreme Court re-examines this jurisprudence in light of the guarantee of access to a court, enshrined inArt. 29a of the Federal Constitution (Cst.), which entered into force after that previous ruling. Art. 29a Cst. guarantees everyone the right to have their case heard by a judicial authority whenever there is a "legal dispute," meaning a conflict involving individual interests worthy of protection. It is not necessary to have a formal legal claim; it is sufficient that the individual's legal position is affected by the contested decision. Exceptions to this guarantee are only possible if expressly provided for by a law in the formal sense, which is not the case here.
Second, the Federal Supreme Court reiterates the requirements stemming from the right to be heard (Art. 29 para. 2 Cst.). This fundamental right guarantees a party the opportunity to explain their position before a decision is made to their detriment. It specifically includes the right to review any arguments or statements submitted to the decision-making authority (such as an opinion from another authority) and to comment on them, regardless of whether they are likely to influence the final decision.
Application to the case
The Federal Supreme Court considers that the question of whether the previous jurisprudence is compatible with Art. 29a Cst. constitutes a question of principle, justifying the admission of the appeal (Art. 84 LTF).
In terms of substance, it marks a reversal of case law. It holds that the refusal to request a transfer directly affects the legally protected interests of the appellant. In this case, the latter invoked an infringement of his right to respect for private and family life (Art. 13 of the Constitution and Art. 8 ECHR) and argued that his social reintegration was impossible in Switzerland due to his lifetime expulsion. These arguments are sufficient to demonstrate that the FOJ's decision infringes upon his legal position and creates a "legal dispute" within the meaning of Art. 29a of the Constitution. Consequently, the appellant must be granted access to a judge to challenge this decision, even if he does not have a formal right to obtain his transfer. The Complaints Chamber therefore violated Art. 29a of the Constitution by declaring the appeal inadmissible.
Furthermore, the Federal Supreme Court notes a "gross violation" of the appellant's right to be heard. The FOJ based its refusal decision exclusively on the unfavorable opinion of the Geneva Public Prosecutor's Office. However, this opinion was never communicated to the appellant before the decision was rendered, thereby depriving him of any opportunity to challenge it or present counter-arguments. The Complaints Chamber also failed to recognize this serious and obvious violation.
Outcome
The Federal Supreme Court allows the appeal on these two grounds. It annuls the judgment of the SCC Complaints Chamber as well as the initial decision of the FOJ. For reasons of procedural economy and to avoid "long and unnecessary detours," it refers the case directly back to the FOJ. The latter must issue a new decision after allowing the appellant to comment on the opinion of the Geneva Public Prosecutor's Office, thus fully respecting his right to be heard. No court costs are charged, and the appellant is awarded legal fees, to be paid by the FOJ.
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