A v. Ministère Public de la Confédération, B and C

Court	Federal Criminal Court, Switzerland
Case number	BB.2011.140
Decision title	Décision du 25 Juillet 2012/Decision of 25 July 2012
Decision date	25 July 2012
Parties	Ministère Public de la Confédération/Public Ministry of the Confederation B C Khaled Nezzar alias A
Categories	Torture, War crimes
Keywords	Non-international armed conflict, torture, war crimes
Links	Decision of 25 July 2012: A. v. Ministère Public de la Confédération, B and C (French) Decision of the Swiss Federal Criminal (English translation)

Summary

It is well accepted in international law that Heads of State, Heads of Government and ministers of Foreign Affairs enjoy immunity from prosecution by virtue of the office that they hold. This immunity extends to acts committed in an official capacity whilst in office, after they have left office. In recent years, however, this concept of functional immunity has been challenged by allegations that former government officials have committed international crimes whilst in office. In what has been hailed as a ‘landmark’ decision, the Federal Criminal Court of Switzerland considered that the former Algerian Minister of Defence, who is charged with having committed war crimes and torture whilst in office in 1992-1993, is not entitled to immunity before the Swiss courts. In reaching this conclusion, the Court considered that it would be contrary for international law to prohibit genocide, war crimes and crimes against humanity as fundamental norms but then to allow for a broad interpretation of functional immunity the result of which would be that beneficiaries of this immunity would be immune from prosecution even where they allegedly committed such crimes.

Procedural history

On 19 October 2011, following a criminal complaint filed by the non-governmental organisation TRIAL, the Public Ministry of the Confederation indicted the Accused, A (identified as Mr Khaled Nezzar, the former Algerian Minister of Defence) for war crimes committed in the context of the Algerian civil war (para. A). B and C, both Algerian refugees residing in Switzerland also filed a complaint against the Accused alleging to be victims of torture at the hands of the Accused in 1993 (paras. B and C).

At the time of filing the criminal complaints, the Accused was staying in a hotel in Switzerland where he was arrested by Swiss authorities. A preliminary hearing was held on 20 and 21 October 2011. In exchange for the Accused promising to participate in subsequent proceedings, the Public Ministry of the Confederation withdrew the measures restricting his liberty and the Accused was allowed to return to Algeria (para. D).

On 1 December 2011, the Public Ministry of the Confederation declared itself competent to pursue the case against the accused on the grounds that, since 1 January 2011 adding an Article 264m to the Swiss Criminal Code, war crimes, crimes against humanity and genocide are subject to the jurisdiction of the Swiss courts even if committed abroad by a foreign national so long as the accused individual finds himself on Swiss territory and he is not extradited or handed over to an international criminal tribunal whose jurisdiction is recognised by Switzerland (para. F).

On 12 December 2011, the Accused appealed the decision to the Federal Criminal Court on the grounds, inter alia, that he enjoyed immunity for the period between 14 January 1992 and 30 January 1994 and Minister of Defence and a member of the High Council of State (paras. G-H).

Legally relevant facts

Following the electroal victory of the Islamic Salvation Front (Front Islamique de Salut (FIS)) in June 1990, Algeria experienced political and social instability, which led the government to cancel the elections after the first round in December 1991. On 11 January 1991, a military coup forced the President out of power. After this time, power was concentrated in the hands of the High Council of State (Haut Conseil d’Etat (HCE)) established on 14 January 1992. On 9 February 1992, a state of emergency was declared and on 29 June 1992, following the assassination of the head of the National Liberation Front (Front de Libération Nationale (FNI)), civil war broke out. The government systematically targeted Islamics, who in turn formed armed groups and mounted terrorist attacks throughout the country (para. 5.4).

The Accused is suspected of havng committed war crimes in the period of 1992 to 1999 and acts of torture in 1993 against a number of individuals. In his positions as Minister of Defence from end of 1991 until 10 July 2003 and member of the HCE from beginning of 1992 until 10 July 2003, he was both a member of the government and responsible for the armed forces (para. 5.4.1).

Core legal questions

Does the principle of non-retroactivity contained in Article 2 of the Swiss Criminal Code preclude instigating criminal proceedings against the Accused for crimes committed prior to the amendment of 1 January 2011 on which the jurisdiction of the Swiss courts is based?
Is the Accused’s current absence from Switzerland a barrier to the exercise of criminal proceedings against him?
Can the Accused benefit from immunity ratione materiae in respect of international crimes committed whilst in office?

Specific legal rules and provisions

Articles 2, 7 and 264m of the Swiss Criminal Code.

Court's holding and analysis

The principle of non-retroactivity of the criminal law does not apply to procedural rules, including those rules pertaining to the exercise of jurisdiction. Therefore Article 264m which is the basis for the exercise of the Swiss court’s jurisdiction in the instant case is applicable to crimes committed prior to its enactment without violating the principle of non-retroactivity (para. 2.3).

Pursuant to Article 264m, it suffices for the accused against whom criminal proceedings are commenced on the basis of this article to have been present in Switzerland at the moment that criminal proceedings against him were commenced. That he no longer resides on Swiss soil is no barrier, in and of itself, to proceedings under said Article (para. 3.1).

As Minister of Defence, the Accused benefited from immunity ratione personae throughout his period in office and immunity ratione materiae in respect of acts performed whilst in office after the conclusion of such office. This results from both the Yerodia case-law of the International Court of Justice, and the work of the International Law Commission (para. 5.4.2). The immunity ratione personae of the Accused lapsed in July 2003 when he quit office (para. 5.4.3) and he is not entitled to benefit from immunity ratione materiae in respect of charges of international crimes committed whilst in office. The Swiss legislator recognises that the prohibition of genocide, crimes against humanity and war crimes are fundamental norms of jus cogens, and has declared that it will assure a seamless repression of such acts. It would therefore be contrary to interpret functional immunity so broadly as to encompass the commission of such crimes (para. 5.4.3).

The Accused is therefore not entitled to immunity from process and his complaint is rejected (para. 6).

Instruments cited

Code Pénal Suisse du 21 décembre 1937 (Swiss Criminal Code of 21 December 1937, only available in French);
Code de Procédure Pénal Suisse du 5 octobre 2007 (Swiss Code of Criminal Procedure of 5 October 2007, only available in French).