lördag 12 mars 2011

Rättslig hjälp i brottmål mellan Sverige och Schweiz

Schweiz och internationell rättslig hjälp vid skattebrott

Internationell rättslig hjälp i brottmål syftar till att åklagare och domstolar i Sverige och utomlands bistår varandra i brottsutredningar. Exempel på sådana åtgärder är förhör under förundersökning eller utlämnande av olika typer av bankinformation. Rättslig hjälp kan begäras och lämnas såväl på ett tidigt stadium i brottsutredningen som under rättegången.

Nedan följer en e-post konversation med en tjänsteman vid den schweiziska skattemyndigheten gällande internationell rättslig hjälp i brottsmål och informationsutbyte med anledning av skattebrott mellan Sverige och Schweiz.

"Mutual legal assistance between Sweden and Switzerland can be granted based on
The Swiss Federal Act on International Mutual Assistance in Criminal Matters of 20.3.81 (IMAC; SR 351.1) contains a comprehensive regulation of international assistance. The IMAC is applicable only insofar as an international agreement neither explicitly nor implicitly provides otherwise (Art. 1, para. 1 IMAC), i.e. IMAC is Swiss law, only subsidiary applicable if international agreement applicable.

If there's no international agreement Switzerland will/can grant assistance based on the IMAC, but in fiscal matters only if tax fraud is fulfilled regardless if direct or indirect taxes!

Tax fraud and tax evasion are punishable in Switzerland. The exclusion of mutual assistance in fiscal matters is not a consequence of any lack of dual criminality, but rather is based solely on the provision contained in the Federal Act on International Mutual Assistance in Criminal Matters (Art. 3, para. 3 IMAC), which basically rules out cooperation in the fiscal area.

Tax evasion is where a person does not reveal information in their tax return in order to avoid a tax assessment or to ensure that this is incomplete. In Switzerland, tax evasion is regarded as a misdemeanor and is punished by a fine.

Tax fraud, meanwhile, refers to the provision of forged, falsified or untrue documents – such as business ledgers, balance sheets, profit and loss accounts and salary statements – in order to evade tax and deceive the tax authorities. Duty fraud refers to where a person fraudulently withholds a duty, fee or other payment to the public authority, or otherwise impairs its assets. Tax and duty fraud are regarded in Switzerland as crimes and are punished by imprisonment.

The exclusion of mutual assistance in the case of fiscal offences does not apply to tax fraud. In tax fraud proceedings, coercive measures such as searches and seizures may be used and banking secrecy may be lifted under Swiss administrative criminal law. Similarly, Switzerland provides mutual assistance based on a corresponding request from a foreign authority associated with criminal proceedings. The Swiss authorities, which order the necessary measures, e.g. the production of bank documents, are responsible for the execution of mutual assistance. The persons affected by mutual assistance have the right of appeal and may demand a judicial review of the measures ordered. It is only when the conclusive decree has become absolute that the evidence requested may be transferred to the foreign authorities.

On 29 May 2009, the Federal Council decided to apply the expansion of cooperation in cases of tax evasion - which had already been decided with respect to administrative assistance - to mutual assistance as well in a second step. In order to avoid gaps and contradictions, the Federal Council will therefore adapt mutual assistance law to the new principles of international cooperation in the case of tax offences. After the opening up of administrative assistance as part of the revision of the bilateral double taxation agreements, Switzerland will adopt and implement the negotiated solutions in the field of mutual assistance as well. In this regard, the Federal Council will focus on further development of mutual assistance by way of international agreements.

The implementation of the Federal Council decision dated 29 May 2009 - therefore the amendment - is not yet transposed into national legislation but this "declaration of intent" contents the political will, that the requirements in mutual assistance regarding the tax evasion shall be adapted to the administrative assistance, where the "barrier" for assistance is not so high.

Concerning direct taxes (income tax, property tax) Switzerland will grant assistance in criminal matters only if the qualification of tax fraud is fulfilled (see art. 3, para. 3 IMAC).

Concerning indirect taxes Switzerland will grant assistance in criminal matters based on the Convention of 19 June 1990 implementing the Schengen Agreement (see art. 50; the agreement is applicable regardless of the fact, when the criminal action happened) and or the Cooperation Agreement between the European Community and its Member States of the one part, and the Swiss Confederation, of the other part, to combat fraud and any other illegal activity to the detriment of their financial interests (but see art. 46 of the cooperation agreement: applicable for criminal actions happened six months after the ratification). Requests for information for crimes covered by the Agreement can, therefore, be filed since 8 April 2009 for crimes committed after 26 April 2005.

In executing a request, the Swiss magistrate may order searches or seizure of evidence, issue summonses, interview witnesses or release from legal obligations to keep certain facts secret only if the offence described in the request – assuming it were committed in Switzerland – were also punishable there (principle of dual criminality). When making its decision, he will consider whether in Switzerland the objective elements of an offence would be given. Moreover, dual criminality does not mean that Switzerland and the requesting State must have identical penal provisions or that their provisions are aimed at protecting the same goods or values; it is sufficient if the facts described in the request fall under one provision of ordinary Swiss penal law.

Requests for mutual assistance must contain the following information:
  • Name of the authority making the request. Requests are generally made by judicial authorities.
  • The object of the foreign proceedings and the reason for the request (description of the official acts requested) .
  • Identifying data of the person who is the object of the criminal proceedings.
  • Legal evaluation of the facts in the requesting state.
  • Description of the essential facts (place, time and circumstances).
The requesting authority does not have to prove that its description is accurate. It must only present reasonable grounds for suspicion. The requesting authority may not be required to explain what precisely it wishes to establish via its request. "Fishing expeditions", however, are heavily frowned-upon. Evidence may not be collected at random and without material clues.

Assistance is granted under the condition that the authorities of the requesting State do not use the results of investigations for investigative purposes or introduce them as evidence in any proceeding relating to an offence for which assistance is not permissible.

According to customary practice, the Swiss Federal Supreme Court emphasises that direct or indirect use of the documents obtained and the information contained therein is not permissible under any circumstances for fiscal administrative proceedings nor for criminal proceedings based on purely fiscal elements (apart from a duty or tax fraud). This means that, according to the Federal Supreme Court, utilisation for a tax assessment is even prohibited when judicial assistance was provided on the basis of duty or tax fraud.

Reservation of Speciality

To the authorities of the requesting State

Based on the applicable treaties and conventions and on articles 67 and 63 of the Swiss Federal Law on International Mutual Assistance in Criminal Matters of 20 March 1981, the use of evidence and information obtained through the means of mutual assistance is subject to the following conditions:

Use permitted
The evidence and information obtained through the means of mutual legal assistance can, in the requesting State, be used for investigative purposes and be introduced as evidence in the criminal procedure for which assistance has been requested, as well as for any other criminal procedure, subject to the following points:

Use not permitted
The evidence and information obtained through the means of mutual legal assistance may not be used, neither directly nor indirectly, in a criminal procedure concerning an offence for which assistance is not admissible.
Assistance is not admissible if the criminal procedure concerns an act which, according to Swiss law, is qualified as a political or a military offence or which violates regulations concerning monetary, trade or economic policy.
Assistance is also not admissible where the criminal procedure concerns an act which, according to Swiss law, is qualified as a fiscal offence. Considered as a fiscal offence is any act which appears to be aimed at reducing fiscal duties or taxes.

Use permitted after prior consent

V. After prior consent by Switzerland, the evidence and information obtained through the means of mutual legal assistance may be used:

a) for the prosecution of acts which are qualified as tax fraud according to Swiss law, and

b) additionally for the Schengen States: for the prosecution of the offences mentioned in article 50 of the Convention on the implementation of the Schengen Agreement (indirect fiscality), under the conditions of article 51 of this Convention.

VI. Subject to prior consent by Switzerland is also:

a) any other transmission of evidence and information, in particular to a third State or an international institution;

b) any other use in a procedure other than the ones mentioned under number I., in particular in administrative or civil procedures. However, for the Schengen States, no prior consent is necessary for civil actions joined to criminal proceedings according to article 49 subparagraph d of the Convention on the implementation of the Schengen Agreement.

  • Direct taxes -> assistance if tax fraud / e contario: NO assistance if only tax evasion! (possible adaption in the future if the decision of the Federal Council will be implemented)
  • Indirect taxes -> assistance based on the Schengen Agreement and Cooperation Agreement with the EC (no tax fraud required, but see requirements stated there)
  • Schengen Agreement applicable regardless of the time of the criminal action
  • Cooperation Agreement with the EC applicable if time of criminal action six months after ratification
Between Sweden and Switzerland the mentioned agreements are applicable, so Switzerland can grant assistance concerning indirect taxes based on the anti-fraud agreement (above mentioned as "Cooperation Agreement between the European Community") and the Schengen Agreement.

Due to the lack of an international agreement concerning mutual legal assistance in criminal matters concerning direct taxes (the European Convention on Mutual Assistance in Criminal Matters is not applicable in fiscal matters! see art. 2) Switzerland will/can grant assistance only based on the IMAC (direct taxes: tax fraud has to be fulfilled).
  • Swedish request for mutual legal assistance concerning criminal action "direct taxes" -> requirements based on the IMAC (tax fraud necessary)
  • Swedish request for mutual legal assistance concerning criminal action "indirect taxes" -> requirements based on Schengen and Anti-fraud agreement
Limitation of liability: no warranty can be given in respect of the accuracy, reliability, up-to-dateness or completeness of this information."

Ovan text är ett sammandrag av flera mail. Sammanfattningsvis kan sägas att Sverige har sedan tidigare möjligheter till att begära handräckning från Schweiz i samband med en brottsutredning. För att åtgärder ska kunna vidtas i Schweiz krävs dock att den gärning som ansökan avser motsvarar ett brott enligt schweizisk lag, dvs. det ställs ett krav på dubbel straffbarhet. För att ett skattebrott ska anses utgöra ett ett brott enligt schweizisk lag krävs att skattebrottet förenats med någon form av urkundsförfalskning. I det fall skattebrottet enbart grundar sig i oredovisade inkomster anses de enligt schweizisk lag utgöra sådant ”skatteundandragande” som inte omfattas av IMAC, oavsett beloppets storlek.

Det bör även noteras att det föreligger vissa begränsningar vad gäller hur informationen får användas av den mottagande staten.

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