The Dual Criminality Principle in Criminal Assistance

The Dual Criminality Principle

The dual criminality (or double punishability) principle is a fundamental condition of international mutual legal assistance in criminal matters. It requires that the facts underlying the request be punishable in both the requesting state and the requested state.

Legal Basis

In Swiss law, this principle is set out in art. 64 para. 1 IMAC: "Coercive measures may only be ordered if the facts set out in the request are also punishable under Swiss law."

Assessment In Abstracto

The Federal Supreme Court has clarified that dual criminality must be assessed in abstracto: it suffices that the facts described in the MLA request correspond, in substance, to an offence under Swiss law. It is not necessary for the legal classification to be identical.

Exceptions

The dual criminality principle has exceptions:

1. For non-coercive measures (simple transmission of public documents), dual criminality is not required
2. Certain bilateral or multilateral treaties provide for exceptions for specific categories of offences
3. In fiscal matters, dual criminality has been relaxed under the Council of Europe Convention on laundering

Application to Fiscal Offences

Historically, Switzerland distinguished between tax evasion (not punishable as a criminal offence) and tax fraud (punishable). This distinction limited MLA in fiscal matters. The evolution of law and treaties has progressively broadened the scope of international fiscal cooperation.

Federal Supreme Court Practice

The Federal Supreme Court has developed nuanced case law, accepting dual criminality whenever the facts can be linked to a Swiss criminal offence, even if the constituent elements are not perfectly identical.