Facts
The Federal Office of Justice filed an administrative court appeal against the final decision of the Swiss Federal Prosecutor's Office dated June 28, 2005, in which it had rejected a request for legal assistance from a Dutch public prosecutor's office to conduct a covert investigation in Switzerland.
In July 2003, the Dutch public prosecutor's office had submitted a request for legal assistance to Switzerland to obtain the use of an undercover investigator to uncover a criminal organization, qualified drug trafficking, and money laundering. In September 2003, the Federal Prosecutor's Office had approved the request and allowed the use of Dutch undercover investigators in Switzerland.
However, with the entry into force of the Federal Act on Covert Investigations (BVE) on January 1, 2005, the use of an undercover investigator in Switzerland was made subject to judicial approval by the President of the Appeals Chamber of the Federal Criminal Court. In December 2004, the Federal Prosecutor's Office therefore requested an extension of the authorization, which the President of the Appeals Chamber rejected, as he considered the legal assistance to the Netherlands to be inadmissible.
Consequently, in its final decision of June 28, 2005, the Federal Prosecutor's Office rejected the request for legal assistance from the Netherlands.
Considerations
The Federal Supreme Court held that the final decision of the Federal Prosecutor's Office was subject to an administrative court appeal, but not the decisions of the President of the Appeals Chamber of the Federal Criminal Court, as these were not appealable according to the law and previous case law of the Federal Supreme Court.
On the merits, the Federal Supreme…