Federal Criminal Court of Switzerland's Decision on the Investigation of the Assassination of Kazem Rajavi
Decision of September
23, 2021 Court of Complaints
Composition The
Federal Criminal Judges Roy Garre, president,
Giorgio
Bomio-Giovanascini and Patrick Robert Nicoud,
the clerk Yasmine
Dellagana-Sabry
Parties [REDACTED ] c/o Etude Santamaria &
Jakob
Attorneys at Law, rue
Fran9ois-Versonnex 7, 1207 Geneva,
represented by Mr.
Raphael Jakob and Mr. Nils de Dardel, Etude Santamaria & Jakob Avocats, rue
Francois-Versonnex 7, 1207 Geneve,
appellant
against
PUBLIC MINISTRY OF THE
CONFEDERATION,
Guisanplatz 1, 3003
Bern,
respondent
Subject Extension of
the investigation (art. 311 para. 2 Criminal Procedure Code)
Facts:
A. Following the violent
death of Kazem Radjavi (hereinafter: K. Radjavi), a former member of the
Iranian diplomacy and activist of the National Council of Resistance of Iran,
which occurred in French-speaking Switzerland in April 1990, the Central Public
Ministry of the Canton of Vaud, Special Affairs Division (hereinafter: MP VD,
Special Affairs Division), opened an investigation, under the reference PE15.016958-ADY,
against thirteen defendants for murder, respectively or subsidiarily complicity
in murder, and against Ali Fallahijan (hereinafter: Fallahijan) for instigation
to murder (act. 1.1, p. 1; G.2021.12, act.1, p.1 f.).
B. Notwithstanding
numerous investigative acts, including several international letters rogatory,
the MP-VD, Special Affairs Division, by notice of May 28, 2020, informed the plaintiffs
of its intention to close the aforementioned proceedings since the thirty-year
statute of limitations had been reached with respect to the alleged offenses
(act. 1.1, p. 2; BG.2021.12, act.1, p. 4).
C. By letter dated July
23, 2020, [REDACTED] the victim's brother, who is the plaintiff, through one of
his counsels, denounced the acts committed by the defendants as constituting
genocide and crimes against humanity within the meaning of articles 264 and
264a of the Swiss Criminal Code of December 21, 1937 (CP; SR 311.0). ----- thus
claimed the imprescriptibility[1]
of the offences in question, considering in substance that the execution of his
brother was directly related to the massacre of thirty thousand political
prisoners, perpetrated in Iran in the second half of 1988 under the cover of
the fatwa pronounced by the Supreme Leader Khomeini (act. 1.1, p. 2; file
MP-VD, exhibit 477.13; act. 1, p. 4 f.).
D. By letter of 9
September 2020, the MP-VD, Special Affairs Division, forwarded the letter of 23
July 2020 to the Office of the Attorney General of the Confederation
(hereinafter: OAG) as a matter of its competence (act 1.1, p. 2; BG.2021.12,
act 1.1).
Following the refusals of October 1, 2020 and February 9, 2021 of the
MPC to take over the proceedings due to lack of competence on its part (MPC
file, documents 2.1-0037 ff. and 2.1-0041 ff.), the Central Public Prosecutor's
Office of the Canton of Vaud, Cellule For et Entraide (hereinafter: MP-VD,
Cellule For et Entraide) addressed a request for the determination of material
jurisdiction to the Complaints Court of the Federal Criminal Court
(hereinafter: the Court) on 11 February 2021 (act. 1.1, p. 2; BG.2021.12, act.
1).
E. By decision of March
25, 2021, this Court decided that only the criminal prosecution authorities of
the Confederation were competent to decide on the extension of the legal
qualification of the facts required and, if necessary, to prosecute and judge
the offences in question (BG.2021.12, act. 8).
F. On April 28, 2021,
the MPC issued an order refusing to extend the legal classification, on the
grounds that the principle of non-retroactivity of the criminal norm within the
meaning of art. 2 para. 1 of the Swiss Criminal Code is applicable in this
case, since the acts that are the subject of the criminal proceedings were
committed before the entry into force of the provisions on genocide and crimes
against humanity (act 1.1).
G. In a petition dated
May 12, 2021, the defendant, through his counsel, appealed against the
aforementioned order, claiming in substance, with costs and expenses, that it
be annulled and that the MPC be ordered to investigate the facts under
investigation for genocide and crimes against humanity. Having done so, it also
requests the reinstatement without delay of the arrest warrants and other
measures of restraint lifted by the MP-VD (act. 1).
H. In the context of the
exchange of filings, the MPC, persisting in the terms of its order of April 28,
2021, concludes on June 11 and July 8, 2021, to the dismissal of the
above-mentioned appeal (acts 10 and 14).
As for [redacted], he persists by reply of June 24, 2021, in the terms
of his appeal (act. 12).
The arguments and means of proof invoked by the parties will be taken
up, if necessary, in the legal considerations.
The Court considers in law:
1. The Court examines ex
officio the admissibility of appeals addressed to it (see Gu100N, Die
Beschwerde gemass Schweizerischer Straf prozessordnung, 2011, n. 546 and
references cited).
1.1 The decisions of the MPC may in principle be appealed to the present
Court (art. 393 para. 1 let. a CPP and art. 37 para. 1 of the federal law of 19
March 2010 on the organization of the criminal authorities of the Confederation
[LOAP; RS 173.71]).
The refusal of the MPC to extend the investigation of the procedure to
another offence is akin to a decision of non-consideration within the meaning
of art. 310 CPP (Federal Court decision 6B_1276/2019 of February 27, 2020
consid. 3.1; SCHMID/JOSITSCH, Praxiskommentar, 3rd ed. 2018, n. 7 ad art. 311
CPP; see e.g. decision of the Federal Criminal Court BB.2019.245 of January 26,
2021 consid 1.2), which can be appealed before the present Court (art. 322
para. 2 CPP by reference to art. 310 para. 2 CPP).
According to art. 393 para. 2 CCP, the appeal can be filed for violation
of the law, including excess and abuse of discretion, denial of justice and
unjustified delay (let. a), incomplete or erroneous determination of the facts
(let. b) or untimeliness (let. c).
1.2
1.2.1 Any party who has a legally protected interest in the annulment or
modification of a decision has the right to appeal (art. 382 para. 1 of the CCP).
This interest must be actual and practical (ATF 144 IV 81, recital 2.3.1 and
references cited; decision of the Federal Criminal Court BB.2013.88 of 13
September 2013, consid. 1.4 and references cited). The notion of party referred
to in this provision must be understood in the sense of art. 104 and 105 of the
CCP, i.e., in particular the complainant (art. 104 para. 1 let. b of the CCP),
the accused (art. 105 para. 1 let. a of the CCP) and the persons who report the
offences (art. 105 para. 1b CCP). The plaintiff is understood to be the person
who expressly declares that he or she wishes to participate in the criminal
proceedings as a plaintiff in the criminal or civil proceedings (art. 118 para.
1 CCP). The plaintiff is defined in art. 115 al. 1 as any person whose rights
have been directly affected by a crime.
The right of appeal of the complainant, the plaintiff or the informant
against an order to close the case or not to proceed with the case is subject
to the condition that they are directly affected by the offence and can assert
a legally protected interest in the annulment of the decision. As a general
rule, only the owner of the legal right protected by the infringed law can
claim a direct infringement. (ATF 141 IV
1, consid. 3.1 and the ref. cited). The rights affected are individual legal
assets such as life and physical integrity, property, honor, etc. (Message of
21 December 2005 on the unification of the law of criminal procedure, FF 2006
1057, 1148). On the other hand, when the
criminal provision primarily protects the collective interest, individuals are
only considered to be harmed if their private interests have actually been
affected by the acts in question, so that their damage appears to be the direct
consequence of the act in question (ATF 141 IV 454 consid. 2.3.1; 138 IV 258
consid. 2.3 and the ref. cited; judgments of the Federal Court 68_92/2018 of
May 17, 2018 consid. 2.1; 18_723/2012 of March 15, 2013 consid. 4.1; decisions
of the Federal Criminal Court 88.2020.13-15 of May 12, 2020 consid. 3.2;
BB.2012 .67 of January 22, 2013 consid. 1.3). In order to be directly affected,
the defendant must suffer an injury that is directly causal to the offence,
which excludes vicarious damage (judgment of the Federal Court 68_694/2019 of
July 11, 2019, recital 2.1 and the references cited). The injury must also be
of a certain gravity. In this respect, the qualification of the offence is not
decisive; the decisive factor is the effect of the offence on the individual
(BGE 129 IV 216, para. 1.2.1), which must be assessed objectively and not on
the basis of the individual's personal and subjective sensitivities (Federal
Court judgment 6B_266/2009 of 30 June 2009, para. 1.2.1). Art. 115 para. 2 CCP
adds that persons who are entitled to file a criminal complaint are always
considered as effected. According to the Message PPC, this paragraph clarifies
that persons who are entitled to file a criminal complaint according to art. 30
para. 1 PPC, in other words the owners of legally protected rights that have
been affected, must always be considered as plaintiffs (Message PPC, op. cit.,
ibidem).
1.2.2 In the present case, the appellant claims that the investigation
should be extended to the offences of genocide and crimes against humanity
within the meaning of art. 264 and art. 264a of the Swiss Criminal Code
respectively.
The first offence protects a collective interest, i.e. the right to
existence of a group, characterized by the membership of its members to the
same nationality, ethnicity, race, religion as well as to the same social or
political group (WEHRENBERG, Basler Kommentar, 4th ed. 2019, n. 26 ad art. 264
CP; VEST, Schweizerisches Strafgesetzbuch, Praxiskommentar, 3rd ed. 2017, n. 2
ad art. 264; DUPUIS et al, Petit commentaire, Code penal, 2nd ed. 2017, n. 3 ad
art. 264 CP). As for the second offence, it protects both a collective and an
individual interest, in particular public peace and security as well as life,
health and liberty (VEST, op. cit . VEST, op. cit. n. 3 ad art. 264a CP;
WEHRENBERG/EHLERT, Basler Kommentar, op. cit. n. 10 ad art. 264a CP).
The appellant, who was granted the status of plaintiff by the MP-VD in
the context of the investigation procedure PE15.016958-ADY (JAN 289-90; see act
1.1, p. 2; MPC file, exhibit 2.1-001), argues in substance that the execution
of his brother "was part of the context and continuation of the massacre of
nearly thirty thousand political prisoners in 1988 and of systematic
extrajudicial executions of political opponents in the years that followed.
This policy was intended by the highest leaders of the Iranian regime and
implemented in particular the fatwa issued by the Supreme Leader Khomeini"
(act 1, p. 2).
1.2.3 Consequently, in his capacity as a close relative of a victim
within the meaning of art. 116 al. 2 CCP and since he expressly declared his
intention to participate in the criminal proceedings as a plaintiff in both the
criminal and civil cases (MPC file, exhibit 2.1-001), the appellant is entitled
to appeal.
In addition, the present Court notes that in cases where the contested
decision is similar, as in the present case, to a decision of non-consideration,
it is clear that the plaintiff has a legally protected interest in pursuing the
criminal proceedings that the MPC refuses to initiate, since his willingness to
proceed is inherent in his status as a party (see above, recital 1.2.1; see
also the decision of the Federal Criminal Court BB.2016.376/377/378/379-384 of
2 February 2018, recital 2.4.6).
1.3 The appeal was filed in writing on May 10, 2021, within ten days of
the notification of the decision rendered on April 29, 2021, and was therefore
filed in due time (art. 384 and 396 para. 1 CCP; see e.g. art. 322 para. 2 CCP
by reference to art. 310 para. 2 CCP).
1.4 In view of the foregoing, the appeal is admissible and it is
appropriate to consider it.
2. The disputed issue is
whether the refusal of the MPC to extend the legal qualification to the
offences to genocide and crimes against humanity was based in law.
In essence, the lower court considers that the principle of
non-retroactivity of the criminal norm enshrined in art. 2 of the Swiss Penal
Code is not subject to any exception and therefore excludes the application of
the provisions of Title 12bsi CP, namely those relating to the offences of
genocide and crimes against humanity, to the facts under investigation, which
date back to the years 1980 and 1990, i.e. before the entry into force of the
said provisions (act. 1.1, 10 and 14).
2.1
2.1.1 According to art. 101 al. 1 let. a and b CP, genocide (art. 264
CP) and crimes against humanity (art. 264a CP) are not subject to the statute
of limitations. If the question of the imprescriptibility provided for by this
provision is not in doubt with regard to genocide and crimes against humanity
committed after the entry into force in 2011 of the new criminal provisions for
the implementation of the Rome Statute of the International Criminal Court, the
fate of acts committed prior to the said revision remains to be determined.
2.1.2 Art. 2 of the Criminal Code determines the conditions for the
application of the criminal law in time. It recalls the general principle of
the non-retroactivity of the criminal law (art. 2 al. 1 CP) but also provides
for the exception of the so-called lex mitior, namely the application of the
new law to acts committed before its entry into force if it is more favourable
to the author (art. 2 al. 2 CP). Art. 388 to 390 CP complete art. 2 CP and
regulate according to the same principles of non-retroactivity and application
of the lex mitior the execution of judgments, sentences and measures, the
statute of limitations as well as the complaint (DONGOIS/ LUBISHTANI,
Commentaire romand, 2nd ed. 2021, n. 19 ad art. 2 CP). Thus, in particular,
with regard to the provisions of the new law concerning the statute of
limitations for criminal proceedings and sentences and in accordance with art.
389 para. 1 they are also applicable to the perpetrators of acts committed or
judged before the entry into force of the new law, if they are more favourable
than the old law (ATF 134 IV 29, para. 4.1; DONGOIS/LUBISH TANI, op. cit., n.
21 ad art. 2 CP). Article 389 of the Criminal Code, however, expressly reserves
any contrary provision of the law.
2.1.3 Such a derogation follows precisely from art. 101 para. 3 CP with
regard to the statute of limitations for genocide and crimes against humanity
(TPF 2018 96 consid. 7.2.2; see eg. DONGOIS/LUBISHTANI, op. cit. n. 21 ad art.
2 CP; JAKOB/MALEH, Commentaire romand, op. cit. n. 43 ad Intro. aux art. 264-
264n CP). This provision provides that the imprescriptibility for this first
offence applies if the criminal proceedings or the sentence were not barred by
statutes of limitations on January 1st, 1983 under the applicable
law at that date. In the case of crimes against humanity, the statute of
limitations shall not apply if the criminal action or the sentence was not
barred by statutes of limitations on the date of entry into force of the
amendment of June 18, 2010 of the present Code, under the law applicable on
that date. Thus, crimes against humanity are not subject to the statute of
limitations when they were not barred by statutes of limitations on January 1st,
2011 (ZIEGLER/WEHRENBERG, Commentaire romand, op. cit. n. 25c ad art. 101 CP;
see e.g. statements by WIDMER-SCHLUMPF BO E 2009 p. 340). In these cases, the
provisions on the imprescriptibility also apply to acts committed before the
entry into force of the punishable conduct (TPF 2018 96, ibidem; JAKOB/MALEH,
op. cit. n. 44 and 48-51 ad Intro. to art. 264-264n CP; TRECH SEL/CAPUS,
Schweizerisches Strafgesetzbuch, op. cit. n. 11 ad art. 101 CP).
In this way, crimes for which there is no statute of limitations under
art. 101 para. 3 CP are an exception to the principle of lex mitior and the
rule therefore applies irrespective of provisions on the statute of limitations
that are more favourable to the perpetrator (TPF 2018 96, ibidem;
DONGOIS/LUBISHTANI, op. cit. n. 21 ad art. 2 CP; DUPUIS et a/., op. cit. n. 1
to 3 ad art. 389 CP). As the statute of limitations is not a characteristic of
the punishable character of the act, its abolition does not pose any problem,
as long as the repressive power of the State is not extinguished (JAKOB/MALEH,
op. cit, (JAKOB/MALEH, op. cit. n. 44 ad Intro. to art. 264-264n CP; ZIEGLER/
WEHRENBERG, op. cit. n. 42 ad art. 101 CP; see e.g. judgment of the European
Court of Human Rights Coeme et al. v. Belgium of 22 June 2000 ECR 2000-VII p.
54 f., n. 149).
It follows that art. 101 para. 3 of the Criminal Code provides for a
limited retroactive effect of the rules on the imprescriptibility of crimes
which, on the day this rule is adopted, are not already time-barred (ATF 132
Ill 661, paras. 4.3 ff). This limited retroactivity in time makes it possible
to reconcile the principle of non-retroactivity of criminal laws in the sense
of art. 2 of the Swiss Penal Code with the political considerations militating
in favour of the non-applicability of the statute of limitations to crimes with
a historical dimension, such as genocide and crimes against humanity (ZIEGLER/ WEHRENBERG,
op. cit. METTRAUX, International crimes, Vol. II: Crimes against Humanity,
2020, p. 187 ff).
2.2
2.2.1 In this case, the MP-VD has been investigating since the 1990s a
case against thirteen defendants for murder, respectively or subsidiarily accomplice
to murder, and against Fallahijan for instigation to murder.
2.2.2 With regard to the repression of genocide and crimes against humanity
committed before December 15, 2000, respectively January 1, 2011, it was
necessary to refer to the different provisions of general law, such as murder
(art. 111 CP), assassination (art. 112 CP), grievous bodily harm (art. 122 CP),
etc. (Meylan, in: La lutte contre I'impunité in Swiss Law, Universal Jurisdiction
and International Crimes, 2nd ed. 2015, n. 10 and note 19, p. 33; BERTOSSA/Ces,
in: ibidem, p.91, n.40s. and annexes 1, p. 165).
2.2.3 According to Art. 264, paragraph a of the Criminal Code, the
following offences are punishable by life imprisonment or at least ten years
imprisonment whoever, with the intention of destroying in whole or in part a
national, racial, religious, ethnic, social or political group, as such, kills
members of the group or seriously harms their physical or mental integrity.
This provision expressly refers to the killing of members of a group.
Although the number of victims is not decisive for the qualification of
genocide, the letter of the law seems to provide that there must be at least
two victims (Garibian, Commentaire romand, op' cit', n. 12 ad art. 264 CP). The
offence is intentional and the perpetrator must have acted with the intention
of exterminating, in whole or in part, a national, racial, ethnic, social or
political group, i.e. a group of people with common characteristics that
distinguish them collectively from others (BERTOSSA/Ces, op. cit. n. 9, p. 85;
WEHRENBERG, Basler Kommentar, op. cit. n. 27 ad art. 264 CP). In particular,
with regard to the political groups covered by the provision, these are communities
that share general and public interests and organizing themselves for these
purposes (VEST, op. cit. n. 4 ad art.264 CP, WEHRENBERG, op. cit. n. 36 ad art.
264 CP).
According to Art. 264a para. 1 letter a CP, a sentence of at least five
years' imprisonment is imposed on anyone who, in the context of a generalized
or systematic attack against the civilian population, intentionally kills a
person.
Such an attack is usually the result of a strategy or policy of a state
or organization (DUPUIS et al., op. cit., n.7 ad art. 264a CP). The attack must
be general, i.e. it must be distinguished by its scope or systematic, in which
case it is distinguished by its degree of organization (Message on the
amendment of federal laws in order to implement the Rome Statute of the
International Criminal Court, FF 2008 3461,3517; DUPUIS et al, op. cit. n. 8 ad
art.264a CP; VEST, op.cit., n.6 ad art.264a CP). The said attack is launched
against the civilian population (VEST, op. cit., n. 7 ad art. 264a CP). In
other words, it is sufficient for the perpetrator to have intentionally caused
a single victim, regardless of his nationality, as long as the action is part
of a broader context of a generalized or systematic attack (Message Rome
Statute, 3515; DUPUIS et al, op. cit. n. 9 ad arl. 264a CP).
2.2.4 In light of the criminal file and the investigations conducted by
the MP-VD since the 1990s, it is clear that the above-mentioned characteristics
necessary for the application of art. 264 and 264a of the Swiss Criminal Code, which
can be used in combination (see JAKOB/MALEH, op. cit. n. 36 ad intro. to art.
264-264n CP), cannot be denied.
It is clear from the evidence gathered during the investigation that the
execution of K. Rajavi, an activist of the National Council of Resistance of
Iran, who had been granted political asylum in Switzerland since 1981, had
already been decided and ordered in 1982 or 1983 by Fallahijan, Minister of
Intelligence services and Security Affairs of the Islamic Republic of Iran and responsible
for the direction of the execution of opponents of the regime. For the purpose
of planning the crime in question, Iranian commandos travelled to Switzerland
three times between October 1989 and April 1990. During the last trip, the
commando set up and composed of 13 persons with Iranian service passports
bearing the mention "chargé de mission" observed the victim for
several days before carrying out the act on April 24, 1990. He was ambushed not
far from his home by two vehicles whose occupants opened fire with a 9 mm
machine gun. K. Rajavi died on the spot from his injuries. The perpetrators left
Switzerland within hours of the crime and have since been the subject of
international arrest warrants issued by the Swiss authorities, which have been
lifted as of today.
The MP-VD has also highlighted that the elimination of Iranian opponents
was carried out in several European countries. Assassinations were carried out
between 1987 and 1993 in Hamburg, Vienna, Geneva, London, Dubai and Paris.
Fallahijan was placed under an international arrest warrant by the German
criminal courts in 1996 for playing a key role in the assassinations of opponents
and by the Argentine authorities in 2003 for organizing and coordinating a
bombing at the headquarters of the Israeli-Argentine Mutual Association in
Buenos Aires. An international arrest warrant was issued against him by the
Swiss authorities in 2006 in connection with the present case.
2.2.5 It follows from the foregoing that the facts under investigation
are likely to fall within the scope of the offences of genocide and/or crimes
against humanity, which the MPC does not appear to dispute.
2.3 In view of the foregoing considerations, as well as the principle of
in dubio pro duriore, the assassination in question in this case may have been committed
with genocidal intent or with the intention of committing crimes against
humanity. As these acts were not barred by statutes of limitations on January
1, 1983, respectively, on January 1, 2011, they can be prosecuted without time
limit (see MEYLAN, op. cit., ibidem).
It is therefore appropriate for the MPC to take up the case again.
3 The appeal against the decision of 28 April 2021 of the MPC refusing
to extend the legal qualification is well-founded and must be allowed.
4.
4.1 In view of the outcome of the appeal, the costs of the present case
are to be borne by the state fund (art. 428 para. 4 and 423 para. 1 CCP).
4.2 The cashier of the Federal Criminal Court shall reimburse the
appellant the advance payment of costs paid, amounting to CHF 2000.
4.3
4.2.1 The successful party is entitled to compensation for the expenses
incurred in the reasonable exercise of its procedural rights (Art. 436 para. 1
in connection with Art. 429 para. 1 letter a of the Code of Criminal Procedure).
According to Art. 12 of the regulation of 31 August 2010 on the costs, fees,
expenses and compensation in federal procedure (RFPPF; RS 173.713.162), the
fees are fixed according to the time actually spent on the case and necessary
for the defense. When, as in the present case, the lawyer does not send the
breakdown of his services fees with his sole or last entry, the amount of the
fees is fixed at the discretion of the Court (art. 12 al.2 RFPPF).
4.2.2 In the present case, an indemnity amounting to CHF 2'000.00 (VAT
included) appears fair and will be charged to the respondent authority.
On these grounds, the
Court of Complaints pronounces:
1. The appeal is
admitted.
2. The order of the
Federal Prosecutor's Office of April 28, 2021, refusing to extend the legal
qualification is annulled.
3. The case is
remitted to the Office of the Attorney General of Switzerland.
4. This decision is
rendered without costs.
5. The advance on
costs paid by the appellant, amounting to CHF 2,000, is to be returned to him
by the cashier of the Federal Criminal Court.
6. A compensation of
CHF 2'000.00 is granted to the appellant for the proceedings. This amount is to
be paid by the Office of the Attorney General of the Confederation.
Bellinzone, 23 September
2021
On behalf of the
Complaints Court
of the Federal
Criminal Court
The President: The
clerk:
(signature) (signature)
Distribution
Me Raphaël Jakob and Me Nils de Dardel, Etude
Santamaria & Jakob, rue
François-Versonnex 7,
1207 Geneva.
Federal Public
Prosecutor's Office, Mrs. Miriam Spittler, Federal Prosecutor, Guisanplatz 1,
3003 Bern (SV.20.1103-SPM)
Indication of remedies
There is no ordinary
right of appeal against this decision
Stamp:
Tribunale penale federale
23 SET. 2021
VERSAND / EXPEDITION / SPEDIZION
---
[1] Translator’s note : the term imprescriptibility
is a literal translation of the French term “imprescriptibilité” meaning not
subject to a statute of limitations.