Facts
The Austrian authorities requested the arrest and extradition of an individual, A., for burglary. At the time, A. was in pre-trial detention in Switzerland for a separate proceeding. After being questioned by the Swiss authorities, he confirmed his identity but opposed his extradition.
On June 5, 2025, the Federal Office of Justice (FOJ) granted the extradition. A. appealed this decision to the Appeals Chamber of the Federal Criminal Court. He alleges a violation of his right to be heard, claims to have an alibi, expresses concerns for his physical safety if detained in Austria, and requests legal aid.
Law
The Court reiterates the principles governing extradition between Switzerland and Austria, based in particular on the ECExtr and the IMAC.
- Right to be heard (Art. 29 para. 2 Cst. ; Art. 52 IMAC): The right to be heard guarantees the person being prosecuted the right to review the extradition request and supporting documents, to be informed of their rights, and to be briefly heard regarding their personal situation and any objections to the extradition. However, it does not imply an unlimited right to the administration of evidence: the authority may, through an anticipatory assessment of evidence, decline further investigative steps if it determines they would not alter its conclusion. The obligation to provide reasons for a decision does not require addressing every argument in detail, provided the determining factors are clear from the decision.
- Statement of facts (Art. 12 ECExtr ; Art. 28 IMAC): The extradition request must contain as precise a statement as possible of the essential facts, including the time and place of their commission, their legal classification, and the applicable legal provisions. The requesting state is not required to provide proof of the facts; the requested state relies on the provided statement, unless there are manifest errors, contradictions, or implausibilities.
- Alibi (Art. 53 IRSMA): If the person being prosecuted claims to have an alibi, the FOJ will conduct the necessary verifications and refuse extradition if the alibi is evident. Otherwise, it will forward the exculpatory evidence to the requesting state for their response. The concept of an alibi is restrictive: it must be immediate and unequivocal proof that the individual was not at the scene at the time of the incident; mere allegations are insufficient.
- Physical integrity (Art. 37 para. 3 IRSMA): Extradition is refused if the requesting state does not guarantee that the person being prosecuted will not be subjected to treatment that violates their physical integrity. This ground applies to treatment attributable to the state; in cases of alleged risks from third parties, it is up to the person being prosecuted to demonstrate that the requesting state would be unwilling or unable to provide protection. A presumption of compliance with fundamental rights applies to states party to the ECHR.
- Legal aid (Art. 65 APA ; Art. 29 para. 3 Cst.): Legal aid is granted to a party lacking sufficient resources when their claims do not appear to be doomed to failure from the outset; a lawyer is appointed if the protection of their rights requires it.
Application to the specific case
The Complaints Chamber rejects all of the appellant's grievances:
- Right to be heard : The FOJ did not violate this right by refusing to organize a hearing via letters rogatory. By determining that the Austrian statement of facts was sufficient and that it was not its role to examine guilt, the FOJ implicitly but sufficiently justified its refusal to conduct additional investigative acts.
- Statement of facts : The Austrian request precisely describes the alleged facts, the investigative acts (testimonies, descriptions of the perpetrators), and the suspicions based notably on DNA evidence linking the appellant to the crime scene. The statement is neither contradictory nor manifestly implausible. The appellant's arguments pertain to a defense on the merits, which must be presented before the Austrian judge.
- Alibi : The appellant invoked his alibi (his presence in Hungary) for the first time at the appeal stage, which is late. Furthermore, he provides only mere allegations, without any immediate and unequivocal proof. It is not the role of the Swiss authorities to conduct a complex investigation to verify an unsubstantiated alibi, especially in the face of concrete incriminating evidence such as a DNA trace.
- Physical integrity The appellant's concerns stem from disputes with third parties rather than actions by the Austrian state. He has failed to demonstrate that the Austrian authorities would be unable or unwilling to protect him. The presumption that Austria respects fundamental rights applies.
- Legal aid Since the appeal's conclusions are clearly unfounded and bound to fail, the substantive requirement for granting legal aid is not met.
Outcome
The appeal is dismissed. The FOJ's decision to grant the extradition of A. to Austria is upheld. The request for legal aid is also denied, and the procedural costs (CHF 1,000) are charged to the appellant.
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