Jurisdiction of the enforcement canton for the enforcement of a foreign criminal judgment: appeal instead of action against a decision of the Federal Office

Facts

The convicted person X. on 26 July 2007 requested, on a form 'Request for Transfer', transfer to Switzerland to serve the remainder of his sentence. He had served in Spain a prison sentence of 9 years and one day, based on a judgment of a Madrid court.

The Federal Office of Justice (FOJ) asked the Department of Security and Justice of the canton of Appenzell A.Rh. for an opinion. That department declared itself lacking jurisdiction, as X. had neither residence nor citizenship in the canton and had deregistered from the municipality of Speicher on 25 August 2007.

By letter of 14 July 2008, the FOJ asked the canton of Bern (Police and Military Department) whether it consented to the transfer. The Division for Criminal and Measures Enforcement of the canton of Bern took the view that Appenzell A.Rh. was competent, as X. still had his residence in Speicher under Art. 342 SCC; the place of origin Kleindietwil/BE therefore did not apply.

The First Appeals Chamber of the Federal Criminal Court, by decision of 6 July 2009, did not entertain the request of the canton of Bern to determine jurisdiction. It was not a determination of place of jurisdiction under Art. 345 SCC; domestic jurisdiction was established by the FOJ decision under Art. 104 para. 1 IMAC and was not contestable before the Federal Criminal Court.

On 7 October 2009 the canton of Bern filed an action with the Federal Supreme Court against the canton of Appenzell A.Rh. It requested a declaration that Appenzell A.Rh. was competent for the enforcement of the prison sentence imposed by the Untersuchungsgericht Madrid N. 15 and declared enforceable by the Gerichtskreis IV Aarwangen-Wangen. It relied on Art. 120 para. 1 lit. b FSCA and argued that no legal remedy existed against the decision on jurisdiction. Appenzell A.Rh. requested dismissal of the action, insofar as admissible.

Main question: Is the action admissible under Art. 120 para. 1 lit. b FSCA, or is the appeal under Art. 120 para. 2 FSCA against the FOJ decision the correct legal remedy, and which canton is competent for enforcement?

Considerations

The Federal Supreme Court examines its own jurisdiction ex officio and with free cognition (Art. 29 para. 1 FSCA). Under Art. 120 para. 1 lit. b FSCA, it decides as the sole instance on actions concerning public-law disputes between cantons. Under Art. 120 para. 2 FSCA, however, the action is inadmissible if another federal statute authorises an authority to issue a decision on such disputes; an appeal to the Federal Supreme Court is admissible against that decision.

Under Art. 104 para. 1 IMAC, the FOJ, after consultation with the enforcement authority, decides binding on the assumption of the enforcement of the sentence by Switzerland and on the designated canton. Cantonal jurisdiction is governed by Art. 342 SCC (in conjunction with Art. 105 IMAC): for offences committed abroad, the authorities of the place of residence are competent; if there is no place of residence in Switzerland, the authorities of the place of origin are competent. Consultation with the enforcement canton serves to safeguard the right to be heard (Art. 29 para. 2 Cst.). If the FOJ agrees, it simultaneously designates the canton competent for the exequatur procedure (Art. 105 f. IMAC).

If the jurisdictional question arises in first-instance proceedings from a decision, the appeal under Art. 120 para. 2 FSCA takes the place of the action under Art. 120 para. 1 FSCA. This appeal concerns only the competence to conduct the exequatur procedure and to enforce the foreign criminal judgment; it is a public-law dispute that does not in every respect follow the rules of the three unified appeals under the FSCA. The object of challenge is the FOJ decision under…