Federal Supreme Court, 01.10.2026, 1C_530/2026
Facts
On September 7, 2021, the Italian authorities requested mutual legal assistance from Switzerland to obtain the seizure and restitution of a fresco fragment originating from illicit archaeological excavations in the Pompeii region. The item, acquired in 1994, was located in a Geneva gallery operated by A. SA. The Vaud Public Prosecutor's Office ordered its seizure on October 22, 2021, while leaving it in the gallery's custody (recitals 1.1 and 1.2).
In April 2023, the Italian authorities closed the criminal proceedings regarding the theft, handling of stolen goods, and illegal export of the fragment, while ordering its confiscation and restitution to Italy. This decision was not contested. On May 8, 2026, the Vaud Public Prosecutor's Office ordered the lifting of the seizure and the handover of the item to the Italian State. The Federal Criminal Court (FCC) confirmed this decision on September 8, 2026. A. SA appealed to the Federal Supreme Court, invoking in particular the violation of the principle of dual criminality and the prohibition of retroactivity (recitals 1.1 and 1.2).
Law
According toArt. 84 para. 1 LTF, an appeal to the Federal Supreme Court in matters of international mutual assistance in criminal matters is only admissible if it concerns, among other things, the handover of objects or assets and constitutes a particularly important case. This second condition may be met in the presence of a serious violation of procedural guarantees, a legal question of principle, or a departure from established case law. It is the appellant's responsibility to demonstrate these circumstances concretely in accordance withArt. 42 para. 2 LTF (recital 1).
Dual criminality is assessed according to the Swiss law in force at the time the authority rules on the request for assistance, and not according to the law applicable at the time the acts were committed or the item was acquired. As the mutual assistance procedure is administrative in nature, the principle of non-retroactivity inherent in criminal law does not apply to this assessment, including with regard to the relevant substantive provisions (recital 1.2).
Furthermore, the closure of foreign criminal proceedings does not automatically exclude mutual assistance, particularly when it occurs for formal or discretionary reasons. A final confiscation decision can thus justify international cooperation for the purpose of returning the item in question (recital 1.2).
Application to the specific case
The appellant argued that the Federal Act on the International Transfer of Cultural Property (CPTA) and the bilateral agreement between Switzerland and Italy could not justify the restitution of an item acquired in 1994, before they entered into force. The Federal Supreme Court rejected this argument: dual criminality had to be examined according to the law applicable in 2026.Art. 33 CPTA, which excludes retroactivity, was therefore irrelevant to this assessment. As the question had already been settled by established case law, it did not constitute a legal question of principle (recital 1.2).
The closure of the Italian proceedings did not pose an obstacle to mutual assistance either. There was no indication that it resulted from the acts not being punishable. On the contrary, it was accompanied by a final and binding confiscation order, allowing for restitution within the framework of mutual criminal assistance. No grounds therefore justified a re-examination of existing case law (recital 1.2).
Outcome
The Federal Supreme Court declared the appeal inadmissible, as there was no particularly important case within the meaning of Art. 84 of the Federal Supreme Court Act (FSCA). The handover of the fresco fragment to Italy is therefore confirmed. The court costs of CHF 2,000 are charged to the appellant, with no award of costs. The judgment is rendered according to the simplified procedure ofArt. 109 para. 1 FSCA (recital 2).