Granting of judicial assistance to Taiwan under conditions

Facts

Parties involved: Wang and others (appellants) against Office of the Federal Criminal Court (defendant).

Court: Federal Supreme Court, First Public Law Chamber.

Date of judgment: May 3, 2004.

Context: A criminal procedure is being conducted in Switzerland for money laundering, failure to exercise due diligence in financial transactions, and forgery of documents, in relation to facts of corruption concerning the sale of six frigates to Taiwan by the French company Thomson.

Request for assistance: The Federal Judge of Instruction requested documents from the Taiwanese authorities and received a request for assistance from Taiwan for banking documents and information on accounts related to Wang Chuan-pu and his family.

Challenged decision: The Judge of Instruction ordered the transmission of documents and the seizure of blocked funds, a decision against which the appellants filed an appeal.

Main arguments of the appellants: They challenge the validity of the request for assistance, invoking, inter alia, the lack of recognition of the Republic of China by Switzerland, the violation of Art. 2 IMAC, and the prescription of the facts.

Considerations

5. Recognition of the Republic of China The Court notes that the Republic of China (Taiwan) meets the criteria of a State under international law, despite the lack of diplomatic recognition by Switzerland. Recognition is not a necessary condition for the existence of a State. Switzerland can therefore grant judicial assistance to Taiwan without officially recognizing this State.

6. Essential interests of Switzerland The Court leaves open the question of whether granting assistance to Taiwan could compromise Switzerland's essential interests. It refers this question to the Federal Department of Justice and Police, which is competent to decide to refuse assistance on this ground.

7. Reciprocity The Court confirms that the declaration of reciprocity made by the Taiwanese authorities is valid and that the Federal Office could even have waived the requirement for this guarantee due to the nature of the offenses in question (money laundering and corruption).

8. Respect for fundamental rights The Court examines whether the procedure in Taiwan respects the principles of procedure set by the ECHR and the UN Pact II. It notes that, although Taiwan has had past problems in terms of human rights, recent reforms have…