The details of this specific law are available on the web page of the Swiss Foreign Affairs Department under the link http://www.eda.admin.ch/eda/en/home/topics/intorg/chres/imdig.html
The web page says in accordance with the Federal Supreme Court, under certain conditions a foreign (head of) state can be summoned before a Swiss court. A distinction must be drawn between:
* whether the foreign state acted in the exercise of sovereign authority (sovereign act or act of state, “acta iure imperii”) or
* whether it acted as a subject of private law equal to a private person (legal transactions, “acta iure gestionis”).
This Swiss law will clarify a lot of confusion currently prevailing in Pakistan whether President Asif Ali Zardari enjoys immunity in Switzerland if the Supreme Court denies him the immunity and a letter is written to the Swiss authorities to reopen his money laundering cases.
Following is the full text of the Swiss law, as available on the web page of the Department of Foreign Affairs:
“To enable them to exercise their office unhindered, heads of state enjoy full immunity against legal proceedings abroad. Heads of government and foreign ministers can also claim immunity when travelling abroad. In certain circumstances, this also applies to other members of government in the exercise of their duties.
Besides the personal immunity of officeholders, states and their property also enjoy immunity. Immunity of holders of political office
While abroad, serving heads of state enjoy absolute immunity against criminal proceedings in all actions that otherwise would have been subject to the jurisdiction of these states. The immunity of heads of state is a principle embodied in customary international law.
According to the Federal Supreme Court, immunity is weakened in the following two cases:
* When a state expressly waives the immunity of its head of state, the head of state cannot invoke immunity.
* When a head of state leaves office, immunity no longer holds. A former head of state can claim immunity at most for actions undertaken in the exercise of official functions. If such a connection does not exist, the former head of state can be legally prosecuted.
* Decision of the Federal Supreme Court in the Marcos case (115 Ib 496, p. 500) (fr)
Heads of state have no immunity in the case of war crimes. The statutes of the International Court of Justice and the International Criminal Tribunals for the former Yugoslavia and for Rwanda make provision for the fact that a defendant’s official position for qualified war crimes, e.g. as head of state, does not relieve such person of criminal responsibility.
The case of Augusto Pinochet, the former Chilean dictator, revived the debate over the criminal responsibility of former heads of state for qualified crimes committed while in office. General Pinochet was held not to be immune from arrest for alleged acts of torture.
In contrast to criminal proceedings, there is less agreement on the immunity of heads of state with respect to offences under civil law. One body of legal doctrine holds that both the official actions and the private actions of heads of state enjoy immunity from civil law proceedings. Another body takes the view that immunity extends only to official, and not private, actions.
Immunity of states and their property
In Europe, the European Convention on State Immunity of 16 May 1972 regulates protection of the property of foreign states. Non-member states of the Council of Europe may also accede to this convention. Very few states have ratified the convention. In Switzerland, the convention entered into force on 7 October 1982.
On 2 December 2004, the General Assembly of the United Nations (UNO) adopted a universal convention on the jurisdictional immunities of states and their property. Switzerland will sign this convention.
Switzerland does not have a law that regulates the application of the immunity of states under international law. In accordance with the Federal Supreme Court, under certain conditions a foreign state can be summoned before a Swiss court. A distinction must be drawn between
* whether the foreign state acted in the exercise of sovereign authority (sovereign act or act of state, “acta iure imperii”) or
* whether it acted as a subject of private law equal to a private person (legal transactions, “acta iure gestionis”).
Only in the first case can the state claim jurisdictional immunity. In the second case, by contrast, the state can be summoned before a Swiss court, but only on condition that there is a connection between the civil legal relationship and Swiss territory.
According to the Federal Supreme Court, Switzerland can also impose sanctions on the foreign state. What holds for jurisdictional immunity also holds in principle for immunity from measures of constraint: Measures of constraint may not be taken against assets and property intended for the performance of public functions.
A state can expressly waive its immunity from jurisdiction and constraint. Such a waiver can take place in various ways, either before a dispute materialises or ad hoc in a lawsuit. Since 1918, the Federal Supreme Court has followed a restrictive line on the immunity of states.
