The defendant, only known as A., came to the attention of Spanish authorities via the Supplementary Information Request at the National Entries (SIRENE) register on November 8, 2012. She was wanted for a sentence of 11 years and 11 months for belonging to a terrorist organization Euskadi Ta Askatasuna, commonly known by its initials ETA, a Basque nationalist and separatist organization in Northern Spain. On May 25, 2015, Spain’s Ministry of Justice filed a request to extradite A. with Switzerland’s Federal Office of Justice, known as OFJ.
A little over a year later, on April 6, 2016, the defendant A. was arrested in the Swiss canton of Z. On that same day, the OFJ issued an interim order of arrest. However, because A. opposed her extradition to Spain, the OFJ issued a warrant for her arrest carrying a sentence of six years and 9 months. A week later the defendant reiterated her opposition to the extradition, applying for asylum with the Swiss State Secretariat for Migration (SEM) on May 4th, 2016.
The following year, on March 13th 2017, the Ministry of Justice of the State sent the OFJ a sentence revision for February 8, 2017, in which the Supreme Court of Spain increased her prison sentence to three years and six months. Based on the decision made on March 22nd, 2017, the OFJ permitted Spain to extradite A., subject to the objection of political offense (objection de délit politique) and granting of refugee status. That same day the OFJ requested that the federal criminal court lift the objection of political offense.
After the Swiss State Secretariat for Migration (SEM) rejected the defendant’s asylum request, A. appealed the decision before the federal administrative court and requested free legal representation. The defendant requested that the court annul the OFJ’s decision to extradite her. Appealing her extradition, A. awaited a new decision on her case. However, the OFJ dismissed the appeal.
瑞士
西班牙西班牙瑞士Tribunal penal federal
The Swiss Tribunal Penal Federal accused the defendant of belonging to a criminal organization. The Court approved her extradition to Spain per the Swiss Penal Code.
The defendant was wanted for passed involved in ETA, considered a terrorist organization by Spanish and Swiss authorities, and which was defined in the case as an organized criminal group per Swiss Penal Code, Art. 260. Modelled on Art. 275 (Illicit Associations), Art. 260 is used to define a group of three or more, and is distinguished by "omerta," "systematic professionalism (entrepreneurship)", "secretive nature about the group's structure," and "violent modality or nonviolent but conducting illegal activities for nefarious ends."
The defendant tried to argue the statutes, "Objection to the political offense" and "Extradition to Spain," by claiming she was being charged for a political offense as Spanish judges had accused her of ETA related crimes during the Peace Negotiations between the Spanish government and ETA. In the defendant's view, the charges set against her, based on her "alleged" involvement with ETA, were politically motivated.
However, the Swiss court did not accept the defendant's claim of "Political Offense" since A.'s involvement in ETA followed the basic guidelines of Art. 260. Meaning, she had participated in a violent offense by collaborating and actively participating in ETA in Spain and France. (In Spain in 2009, she had planted a bomb in a car that upon detonating wounded six children).
Ultimately, the Court verdict found the defendant guilty and accepted Spain's extradition request due to the severity of her crimes.
Extradition Decision (Décision d'extradition) (art. 55 EIMP)
Objection to Political Offense (Objection de délit politique) (art. 55 al. 2 EIMP)
Legal Assistance (assistance judiciaire) (art. 65 PA)
Extradition to Spain for belonging to a criminal organization, ETA.
Tribunal federal
One of the case's most significant features is that it is an example of international cooperation between Switzerland and Spain on the definition of terrorist group and organized criminal group.
The cooperation was rooted in Switzerland's agreement, per Spain's request, to extradite the defendant A. for belonging in ETA, an organized criminal group. The cooperation between the two countries should not be taken for granted as there have been many high-profile extradition cases that have not resulted in cooperation. Recently the Edward Snowden case, who after leaking NSA documents while working there as a contractor, is now wanted by the U.S. on three felony charges, including treason. However, Russia, where he currently resides, refused to cooperate, turning this case into a public showdown between the two countries.
In this case, however, the judicial cooperation between Spanish and Swiss authorities stems from the fact that the Swiss court considered the defendant's violent crimes (most notably the 2009 car bomb she planted that wounded several children) a reason to extradite her to Spain per the request of the Spanish authorities.
Another significant feature of this case is the way in which Swiss judicial authorities define the defendant as belonging, and thus by extension ETA, to a terrorist group ("appartenance a une organisation terroriste"), as well as a criminal organization ("participation a une organisation criminelle.").
The similarities between terrorist groups and organized crime groups are many, as such the lines are often blurred. The areas in which they intersect are known as the nexus. This juncture is an invaluable conversation and is becoming increasingly relevant, especially as terrorists resort to criminal activities to fund their activities.
UNTOC does not have a definition for terrorist groups, since terrorism is not considered organized crime, as terrorism's objective is often considered political rather than based on "financial or other material benefit." However, the definition of organized criminal group in UNTOC (under Article 2) mirrors the Swiss Penal Code's Art. 260, and it is this shared, albeit broad, understanding of what constitutes a "serious crime" and participation in a "structured group" that enabled the Swiss judicial authorities to cooperate with Spain and establish the defendant A.'s guilt. As a result, the defendant could not fight extradition with a claim of political offense, as she had initially sought.
Indeed, while the line between organized crime and terrorist groups might constitute a grey zone, the court's decision, on the other hand, was clear: the defendant was found guilty.