FPC, 09.07.2026, RR.2026.59
Facts
The French authorities requested the extradition of A., a Portuguese national residing in Switzerland with a C permit, first via an alert in the Schengen Information System (SIS) and subsequently through a formal request. The request seeks the enforcement of a 9-month custodial sentence handed down in 2019 by the Valence Criminal Court for various drug-related offenses. (Facts, A-B)
The Federal Office of Justice (FOJ) instructed the Neuchâtel Public Prosecutor's Office to interview the individual concerned. During the hearing, A., assisted by his lawyer, opposed his extradition. Despite his submissions, the FOJ issued a decision on April 23, 2026, granting his extradition to France. (Facts, C-F)
A. filed an appeal against this decision with the Appeals Chamber of the Federal Criminal Court. He argues that his extradition would be discriminatory, would violate his right to be heard, would constitute a disproportionate interference with his family life as a divorced father with joint custody of his two young children, and would be inappropriate. He also requests the granting of legal aid. (Facts, G-I)
Law
The Court recalls that extradition relations between Switzerland and France are primarily governed by the European Convention on Extradition (ECExtr) and its protocols, supplemented by the Schengen agreements. The Federal Act on International Mutual Assistance in Criminal Matters (IMAC) applies only subsidiarily to matters not regulated by treaties, or if its provisions are more favorable to extradition (principle of favor), while respecting fundamental rights. (consid. 1.1, 1.2)
The right to be heard, guaranteed byArt. 29 para. 2 of the Federal Constitution,includes the authority's obligation to provide reasons for its decision. Reasoning is deemed sufficient if it sets out, even briefly, the reasons that guided the authority, thereby allowing the individual to understand the scope of the decision and to challenge it with full knowledge of the facts. The authority is not required to address every argument but may focus on the decisive points. (consid. 3.1.1, 3.1.2)
Art.8 ECHR protects the right to respect for private and family life. Although this provision does not confer a right not to be extradited, extradition may, in exceptional circumstances, constitute a disproportionate interference with family life. The judge must weigh the interests of the individual subject to extradition and their family against the requesting State's interest in enforcing a criminal judgment under its international obligations. The gravity of the offense, the length of the sentence, the geographical distance, and the possibilities for maintaining contact are relevant criteria. Simple family separation inherent in any detention abroad is not, in itself, disproportionate. (consid. 4.3.3, 4.3.4, 4.3.4.1)
By virtue of the principle of the primacy of international law and the obligation of pacta sunt servanda, Switzerland is bound to respect its treaty commitments.Art. 37 IMAC,which allows for the refusal of extradition on grounds of social rehabilitation if Switzerland can enforce the sentence, is not applicable when, as in this case, an international treaty such as the ECExtr establishes an obligation to extradite without providing for such an exception. (consid. 5.2, 4.3.2)
The ECExtr does not recognize inexpediency as a ground for refusal. However, Switzerland may invoke a reservation made by France toArt. 1 ECExtr, which allows for a refusal if the surrender is likely to have "exceptionally serious consequences" for the person claimed. Case law interprets this reservation restrictively, limiting it to the most severe cases where extradition would pose a significant risk to the person's physical integrity (age, state of health), excluding ordinary financial or family difficulties. (consid. 6.2.1, 6.2.2, 6.2.3)
Application to the specific case
The Court rejects the claim of discriminatory treatment regarding the appellant's inability to benefit from a sentence adjustment in Switzerland. It clarifies that this issue pertains to the modalities of sentence execution and must be raised before the competent French authorities following extradition. (consid. 2.2)
The claim of a violation of the right to be heard is also dismissed. The Court finds that the FOJ's reasoning, while concise, was sufficient. The FOJ took into account the appellant's family situation (divorce, shared custody) but concluded that extradition would not destroy family ties, as these can be maintained through visits, calls, and correspondence. This reasoning allowed the appellant to understand the reasons for the rejection of his argument and to challenge it effectively. (consid. 3.2, 3.3)
Regarding the violation of Art. 8 ECHR, the Court conducts a balancing of interests. It notes that the appellant provides no concrete evidence demonstrating that the severance of ties with his children would be definitive and irreparable. The sentence to be served is relatively short (9 months), France is a neighboring country easily accessible from Switzerland for visits, and there is no indication that maintaining contact would be impossible. The interference with family life is therefore not deemed disproportionate and does not constitute an exceptional obstacle to extradition. (consid. 4.3.5)
The appellant's request to serve his sentence in Switzerland based on Art. 37 IRS is rejected. The Court reiterates the primacy of the ECExtr, which contains no analogous provision. In the absence of such a clause in the applicable treaty, Switzerland has an obligation to extradite. Furthermore, even if Art. 37 IRS were applicable, its conditions would not be met, as the French authorities have not requested that Switzerland take over the execution of the sentence. (consid. 5.2)
Finally, the claim based on the inexpediency of the decision is deemed manifestly unfounded. The financial and family consequences invoked by the appellant (loss of employment, payment of child support) do not constitute "exceptionally serious consequences" within the meaning of the French reservation. These difficulties are inherent to any incarceration and do not reach the threshold of severity required by case law. As the conditions of the ECExtr are met, the FOJ was required to grant extradition. (consid. 6.3, 6.4)
Outcome
The Complaints Chamber dismisses the appeal, considering that all raised claims are unfounded and that the conditions for the appellant's extradition to France are met. (consid. 7)
The request for legal aid is also rejected. As the appeal is devoid of any chance of success based on well-established case law, one of the cumulative conditions of Art. 65 para. 1 APA is not met. (consid. 8.2)
The procedural costs, reduced to CHF 800.-- in consideration of the appellant's financial situation, are charged to him. (consid. 9)
