Facts
The Swiss Federal Prosecutor’s Office opened a judicial police investigation on 8 September 2003 against unknown persons for supporting or participating in a criminal organisation within the meaning of Art. 260ter SCC and qualified offences under the Narcotics Act (NarcA). The investigations concerned several individuals, including the accused A., B., C., X., Y. and Z., who were suspected of involvement in an internationally active organisation that imported large quantities of cocaine from Central and South America into Switzerland and/or participated in cocaine trafficking.
On 5 February 2004, the federal investigating judge’s office opened a preliminary investigation at the request of the Federal Prosecutor’s Office. In its final report dated 21 December 2005, the investigating judge’s office requested that charges be brought for supporting or participating in a criminal organisation and qualified offences under the Narcotics Act against the accused. However, with a decision dated 3 April 2006, the Federal Prosecutor’s Office discontinued the proceedings against all accused persons regarding the offence under Art. 260ter SCC as the suspicion of the existence of a criminal organisation had not been substantiated. Instead, it filed an indictment with the Criminal Chamber of the Federal Criminal Court against the accused A., B., X. and Z. for qualified offences under the Narcotics Act (committed as part of a criminal organisation) and, additionally, for money laundering (Art. 305bis SCC) committed in part as part of a criminal organisation and on a commercial basis.
The Criminal Chamber of the Federal Criminal Court declined to enter on the indictment in respect of X., Y. and Z. by decision dated 16/28 August 2006, on the grounds that there were no indications of the existence of a criminal organisation in the indictment and that the sole place of commission in Zurich did not establish federal jurisdiction. The Swiss Federal Prosecutor’s Office filed an extraordinary appeal with the Court of Cassation of the Federal Supreme Court against this decision of non-entry, seeking to have the contested decision set aside and the matter remitted to the lower court for reassessment.
Considerations
The Federal Supreme Court first examined whether the Criminal Chamber of the Federal Criminal Court was entitled to deny federal jurisdiction after the indictment had been filed. The Court emphasised that the indictment has no binding effect on the assessment of subject-matter jurisdiction. Rather, it is for the court to examine jurisdiction ex officio, in particular the prerequisites for federal jurisdiction under Art. 340bis para. 1 SCC. The delimiting function of the indictment serves merely to define the subject matter of the proceedings, not to determine the prerequisites for jurisdiction. The principle of indictment does not therefore preclude entering on the indictment, even if the indictment contains no statements regarding federal jurisdiction.
The Federal Supreme Court further clarified that the Criminal Chamber of the Federal Criminal Court may deny federal jurisdiction after the indictment has been filed only in exceptional cases and for compelling reasons. This follows from the principle of perpetuatio fori, according to which jurisdiction once established generally remains in place in order to ensure the efficiency and acceleration of the proceedings. A subsequent change in jurisdiction is only justified if the original assumption of federal jurisdiction was manifestly abusive or if the accused contests jurisdiction with particularly weighty arguments. In the present case, however, there were neither abusive assumptions nor weighty arguments from the accused that would have justified denying federal jurisdiction.
The Federal…