Swiss Federal Supreme Court, 17.12.2025, 1C_701/2025
Facts
In 2009, Italy requested mutual legal assistance from Switzerland in the context of criminal proceedings against A. and others for various economic offenses. In 2014, Italian authorities obtained the seizure for the purpose of confiscation of assets in a Swiss bank account held by D. Limited, but economically attributable to A.
Subsequently, Italy informed Switzerland that a final confiscation decree had been issued in 2016 regarding these assets. This confiscation was not ordered as part of the criminal proceedings, but under a separate "preventive asset" procedure governed by Italian law. In 2021, the criminal proceedings against A. were dismissed due to the statute of limitations, while the other co-defendants were acquitted.
In 2025, the Office of the Attorney General of Switzerland (OAG) ordered the transfer of the funds to Italy. D. Limited's appeal against this decision was rejected by the Federal Criminal Court. The company then appealed to the Federal Supreme Court.
Legal Analysis
In accordance withArt. 84 para. 1 of the Federal Supreme Court Act (LTF), an appeal against a decision rendered in matters of international mutual legal assistance is only admissible if it concerns extradition, seizure, the transfer of items or assets, or the transmission of information covered by secrecy, and if it involves a particularly important case. Such a case is deemed to exist, in particular, when there are reasons to assume that the proceedings abroad violate fundamental principles or present other serious defects (Art. 84 para. 2 LTF). It is the appellant's responsibility to establish in detail that these conditions are met.
The appellant argued that the case constituted a particularly important matter on the grounds that the preventive confiscation ordered in Italy, independent of a prior criminal conviction due to the statute of limitations, violated the presumption of innocence (Art. 6 para. 2 ECHR) as well as the principle of nulla poena sine lege (Art. 7 ECHR).
The Federal Supreme Court reiterated the established case law of the European Court of Human Rights, according to which the preventive confiscation provided for by Italian Legislative Decree No. 159/2011 does not constitute a "penalty" within the meaning of Art. 7 ECHR, but rather an asset-related measure of an essentially preventive and remedial nature, aimed at preventing illicit enrichment and ensuring that crime does not pay. Such a measure is, in principle, compatible with the ECHR, even in the absence of a criminal conviction, provided it is based on sufficient evidence regarding the illicit origin of the assets and a manifest disproportion between the assets and declared income.
Application to the specific case
The Federal Supreme Court finds that the appellant's argument is based on a flawed premise. The question of the compatibility of Italian preventive confiscation with the ECHR has already been settled on several occasions by the ECtHR. The case therefore does not raise any new legal question of principle that would justify classifying it as a "particularly important case" within the meaning of Art. 84 LTF.
The Federal Supreme Court notes that the Italian confiscation decision is final, enforceable, and duly reasoned, based on numerous indications of A.'s social dangerousness and the manifest disproportion between his declared income and his assets. The oversight by Swiss authorities is limited to a summary examination of compliance with fundamental procedural guarantees, without the power to re-examine the merits of the foreign decision.
Furthermore, A. has himself appealed to the ECtHR to challenge the confiscation decision. A review on the merits by the Federal Supreme Court would risk creating contradictory judgments. There is no reason to doubt that Italy will comply with any potential ECtHR ruling in his favor.
As the case does not raise a legal issue of fundamental importance, the admissibility requirements under Article 84 of the Federal Supreme Court Act are not met.
Outcome
The Federal Supreme Court declares the appeal inadmissible.
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