The Sperisen case: model of fair proceedings
The dramatic fall of the Syrian regime ten days ago has once again highlighted the growing importance of national jurisdictions in prosecuting the most serious international crimes.
The International Criminal Court (ICC) has no jurisdiction over crimes committed in Syria, and therefore, should Bashar al-Assad or other senior regime officials ever be prosecuted it will likely be before national courts. A French judge, for instance, has already issued an arrest warrant against the former president for international crimes committed in Syria, who will now exercise great caution when traveling outside his Russian refuge.
As prosecutions outside international tribunals become increasingly more relevant, a recurring question arises: Are national judges sufficiently equipped to handle extraterritorial cases—crimes committed far from their jurisdictions, in contexts vastly different from those they typically adjudicate? And can their systems ensure every accused individual is afforded a fair trial?
The case of Erwin Sperisen, a dual Swiss-Guatemalan citizen accused of ordering the extrajudicial execution of detainees in a Guatemalan prison while serving as police chief, is a compelling illustration of these issues. Sperisen has repeatedly claimed he was denied a fair trial in Switzerland.
Although born and raised in Guatemala, where he served as national police chief from 2004 to 2007, Sperisen holds a Swiss passport. This is therefore not a case of universal jurisdiction, theSwiss judges’ authority here is based on the suspect’s nationality. Nonetheless, it remains an extraterritorial matter since the crimes tried in Geneva were committed over 9,000 kilometers away in Guatemala.
One might wonder how Swiss judges could comprehend the reality of a prison controlled by drug traffickers in a country where authorities claimed to be restoring order amid rampant gang violence and endemic chaos—especially since these judges never visited the sites of the alleged crimes.
Having to understand facts that occurred in a context entirely different from the place where they are being judged is precisely the common denominator of most extraterritorial cases tried worldwide over the past 80 years. In this regard, the Sperisen case is a classic example. In 1945, the judges at Nuremberg had no prior experience in adjudicating mass crimes, most of which were committed in places they had never known before the trial and never visited.
The same holds true for German judges who, in recent years, rendered landmark decisions on crimes committed during Syria’s civil war, without ever visiting the crime scenes. It also applies to Swedish judges who tried an individual accused of participating in mass executions of dissidents in Iranian prisons, as well as Swiss federal judges in Bellinzona who, between 2020 and 2023, tried a Liberian citizen accused of crimes committed during a civil war thousands of kilometers from their courtroom.
Some argue, especially in light of the current conflict in Ukraine, that foreign judges may sometimes provide a more objective reading of facts. These judges are not immersed in the immediate vicinity of the crimes and are thus less exposed to national pressures and political considerations.
However, whether one is tried by a local judge or a tribunal on the other side of the world, there will always be a risk of judges failing to understand the facts, refusing to do so, or distorting them.
The only safeguard for citizens against this risk is to ensure the guarantee of a fair trial for every accused person, provided notably through reliable and independent appeals mechanisms. Such guarantees have not always existed—for instance, at Nuremberg, some defendants were executed without being granted any right of appeal. Since 1994, however, individuals tried before international tribunals have had access to an independent appeals body after their judgment, marking significant progress.
Erwin Sperisen, for his part, was afforded not one but three levels of appeal, including two courts among the most respected for their legal rigor.
The initial verdict against him, rendered in Geneva, was reviewed on both facts and law by an appellate chamber, also in Geneva. This second ruling was then reviewed on legal grounds at the federal level, outside Geneva, by the Swiss Federal Court. Finally, this third-level decision was reviewed at the European level by the European Court of Human Rights (ECHR).
This multilayered judicial protection ultimately benefited Sperisen. In 2023, the ECHR found that certain comments made by a Geneva judge reflected a lack of impartiality toward the accused, though the substantive grounds for his conviction were not questioned. Following this decision, the Federal Court annulled the judgment and ordered a retrial in Geneva.
Once again, the judges found the accusations against Sperisen to be substantiated and, in September 2024, sentenced him to 14 years in prison for complicity in the assassination of seven prisoners at Pavon Prison in Guatemala in September 2006.
In this context, shortly before the retrial, Swiss journalists interviewed M. Sperisen who claimed to live in Switzerland under a “system of state persecution.” While another journalist praised the Geneva judiciary’s “pursuit of truth” following the latest verdict, many still view the accused as a victim rather than someone proven—at this stage—guilty of very serious crimes.
Based on my experience as a lawyer in international criminal trials across three continents, I can confidently say that if I were accused of committing acts as serious as extrajudicial executions abroad, my greatest wish would be to be tried in a system that provides as many safeguards as the Swiss judicial system.
Let it be reiterated: no one is ever completely shielded from judicial error anywhere. However, to claim, as Sperisen has done publicly for over 15 years, to be a victim of “state persecution” in Switzerland is nothing short of insulting. Insulting to Switzerland and insulting to all genuine victims of state persecution, in Guatemala and across the world.
The article first appeared in French on Le Temps on the 18th of December 2024
Image: Swiss Federal Criminal Court, Bellinzona. Civitas Maxima.
