FPC, 03/18/2026, RR.2026.12, RP.2026.6
Facts
On September 4, 2025, Romania issued an alert in the Schengen Information System (SIS) against A., a Romanian national, for his arrest and extradition on charges of assault, false imprisonment, and sexual assault. A. was arrested in Switzerland on October 7, 2025, based on an order from the Federal Office of Justice (FOJ). After initially consenting to simplified extradition, he withdrew his consent. (Facts A-C)
On October 16, 2025, Romania submitted a formal extradition request, supplemented on October 24 by diplomatic assurances regarding detention conditions. Represented by counsel, A. opposed the request. On December 16, 2025, the FOJ granted the extradition. (Facts E-I)
A. appealed this decision to the Appeals Chamber of the Federal Criminal Court, seeking the annulment of the decision, his immediate release, and the granting of legal aid. He alleges a violation of his right to be heard and the insufficiency of the assurances provided by Romania with regard toArt. 3 ECHR. The FOJ requested that the appeal be dismissed. (Facts J-L)
Legal Analysis
The Court reiterates that extradition proceedings between Switzerland and Romania are governed by the European Convention on Extradition (ECE) and its protocols, as well as by the Schengen acquis. The Federal Act on International Mutual Assistance in Criminal Matters (IMAC) applies subsidiarily or if it is more favorable, in compliance with fundamental rights. The Appeals Chamber reviews whether the conditions for extradition are met with full power of cognition. (consid. 1.1-1.4)
The right to be heard, guaranteed byArt. 29 para. 2 Cst. andArt. 6 ECHR, is a fundamental principle of procedure. It includes, in particular, the right to provide explanations, consult the file, and offer evidence. However, an authority may decline to take evidence through anticipatory assessment if it believes that such evidence would not alter its conviction. Regarding formal requirements,Art. 28 IMAC andArt. 23 ECE require that the extradition request be submitted in an official language of the requested state or be accompanied by a translation, in order to guarantee the rights of the defense. (consid. 2.1.3.1, 2.2.3.1, 2.2.3.2)
Extradition is excluded if the proceedings abroad violate the fundamental principles of the ECHR or the UN Covenant II (art. 2 IMAC), in particular the prohibition of inhuman or degrading treatment (art. 3 ECHR). Case law distinguishes between three categories of states: those for which there is no doubt, those for which diplomatic assurances are necessary, and those to which extradition is excluded. For the second category, specific assurances can help reduce the risk of human rights violations to an acceptable level. (consid. 3.3.2, 3.3.3, 3.3.4)
The reliability of these assurances is assessed on a case-by-case basis, taking into account several factors (precision, issuing authority, monitoring mechanisms, etc.). Following the ECtHR pilot judgment in Rezmiveş and Others v. Romania regarding prison overcrowding, Switzerland systematically requires detailed diplomatic assurances from Romania. These cover compliance with Art. 3 ECHR, access to medical care, the right of the Swiss diplomatic representation to visit without notice, notification of the place of detention, free communication with legal counsel, and visits from relatives. (consid. 3.3.5.1, 3.3.6)
Application to the specific case
The Court first examines the appellant's formal grievances. Regarding the alleged violation of the right to be heard, it rejects the argument concerning the lack of translation, as the extradition request was indeed accompanied by a French translation, which was provided to the appellant's lawyer. The latter was therefore able to make submissions with full knowledge of the facts. (consid. 2.1.3.2)
The Court also dismisses the grievance regarding the FOJ's refusal to request the Romanian criminal file. The appellant claimed that it would contain proof of the payment of a fine which, in his view, would have extinguished the criminal proceedings (ne bis in idem principle). The Court considers that the FOJ was not required to carry out this verification. The statement of facts in the extradition request was sufficiently clear and presented no implausibility. Furthermore, the hypothesis of a fine payment is deemed unlikely, as the applicable Romanian legal provisions do not provide for such a sanction. It will be up to the appellant to present his arguments before the trial court in Romania. (consid. 2.2.5, 2.3)
On the merits, the appellant contests the sufficiency of the diplomatic assurances provided by Romania, deeming them too general in the face of the systemic problems of the Romanian prison system. He invokes a previous conviction of Romania by the ECtHR in a case concerning him. The Court notes that this conviction is based precisely on the Rezmiveş pilot judgment, which led Switzerland to systematically require the assurances in question. It notes that Romania has undertaken reforms to reduce prison overcrowding and that, even if further efforts are still needed, the system of diplomatic assurances remains the appropriate response. (consid. 3.3.8)
The Court proceeds to an analysis of the quality of the assurances provided. These were issued by the Romanian Ministry of Justice, correspond to the established practice between the two states, and include a monitoring mechanism (right of visit by the Swiss representation). As Romania is a party to the ECHR, it is appropriate to rely on the principle of good faith and to presume that it will honor its commitments. The appellant provides no concrete evidence demonstrating an objective and serious risk of violation of his rights despite these assurances. The grievance is therefore rejected. (consid. 3.3.9)
The request for release, being ancillary to the main request for refusal of extradition, is rejected following the granting of the extradition. (consid. 4.1, 4.2)
Finally, the request for legal aid is refused. The Court considers that the appeal was devoid of any chance of success from the outset, as the appellant's arguments were not such as to call into question well-established case law and practice. (consid. 5.2)
Outcome
The Appeals Chamber of the Federal Criminal Court rejects the appeal and confirms the FOJ's decision to grant the extradition of A. to Romania, subject to compliance with the diplomatic assurances provided. The ancillary request for release is rejected, as are the requests for legal aid and the appointment of a court-appointed lawyer. The procedural costs, set at CHF 1,000, are charged to the appellant. (Dispositif 1-4)
Silex newsletter published in collaboration with Elisabetta Tizzoni
