Facts
On July 29, 2003, the Swiss Federal Prosecutor's Office received a request for legal assistance from a Dutch public prosecutor's office, in which it requested the use of an undercover investigator to uncover a criminal organization within the meaning of Art. 260 of the Swiss Criminal Code in connection with qualified drug trafficking and money laundering. The Federal Prosecutor's Office approved the use of Dutch undercover investigators in Switzerland under various conditions and requirements until December 31, 2004.
By submission dated December 23, 2004, the Federal Prosecutor's Office requested the President of the Appeals Chamber of the Federal Criminal Court to approve the use of the undercover investigators until December 31, 2005, pursuant to Art. 18 para. 1 of the Federal Act on Covert Investigations (BVE). However, the President did not enter into the request, as he considered the granting of legal assistance to the Netherlands to be inadmissible.
The Federal Office of Justice then filed an administrative court appeal against the final decision of the Federal Prosecutor's Office, which rejected the request for legal assistance, as well as against the decisions of the President of the Appeals Chamber.
Considerations
The Federal Supreme Court dismissed the administrative court appeal. It stated that the President of the Appeals Chamber of the Federal Criminal Court had exceeded his jurisdiction by overriding the decision of the Federal Prosecutor's Office dated September 12, 2003, which had approved the legal assistance to the Netherlands. This decision of the Federal Prosecutor's Office was binding on the President as long as it was not obviously untenable.
Although the BVE provides for the use of undercover investigators, this is particularly problematic in the context of legal assistance, as the flow of…