TF, 27.02.2026, 1C_98/2026
Facts
As part of criminal proceedings for criminal mismanagement and money laundering, the National Anti-Corruption Bureau of Ukraine submitted a request for mutual legal assistance to Switzerland. This request notably sought the examination of A.________ as a witness.
On September 10, 2025, A.________ was questioned by the Office of the Attorney General of Switzerland (OAG) as a person providing information. Assisted by his lawyer, he exercised his right to refuse to answer all questions asked.
The OAG subsequently provided the transcript of this hearing to A.________, granting him a deadline to raise any objections to its transmission to the Ukrainian authorities. Having received no response, the OAG ordered the handover of said transcript to Ukraine in a closing decision dated November 6, 2025.
A.________ appealed this decision to the Federal Criminal Court, which dismissed his appeal on February 4, 2026. He then filed an appeal with the Federal Supreme Court, primarily requesting that the transmission of the transcript be refused and, alternatively, that only a written notification informing them of his refusal to testify be sent.
Law
Public law appeals to the Federal Supreme Court in the field of international mutual legal assistance in criminal matters are subject to strict admissibility requirements, as defined in Article 84 of the Federal Supreme Court Act (FSCA). This article aims to limit access to the Federal Supreme Court for these types of cases.
For an appeal to be admissible, it must involve a "particularly important case" (art. 84 para. 1 FSCA). Such a case is recognized restrictively, particularly when there are reasons to believe that fundamental procedural principles have been violated or that the proceedings abroad exhibit serious defects (art. 84 para. 2 FSCA). In the area of "minor legal assistance" (transmission of information), this condition is only met in exceptional circumstances.
In accordance withart. 42 para. 2 FSCA, it is the appellant's responsibility to demonstrate in detail in their brief how the conditions for a particularly important case are met.
On the merits, the principle of proportionality only precludes the granting of legal assistance if the requested documents are manifestly unrelated to the offense under investigation and unsuitable for advancing the inquiry, which would equate the request to a "fishing expedition."
Application to the specific case
The Federal Supreme Court examines whether the appellant has demonstrated that their case is of "particular importance" within the meaning of Art. 84 of the Federal Supreme Court Act (LTF).
The appellant alleges a violation of the principle of proportionality. They argue that transmitting a transcript containing no statements is of no potential use to the Ukrainian investigation and that a simple written communication would be a less intrusive measure.
The Federal Supreme Court rejects this argument. It reiterates that the threshold for establishing a violation of proportionality is very high and has not been met in this case. The fact that the transcript only records a refusal to testify does not preclude its "potential utility" for the requesting authority. Furthermore, the Court emphasizes that a formal transcript, even one documenting silence, holds greater "probative value" than a simple summary communication, such as the one proposed by the appellant.
The Federal Supreme Court also notes that the appellant fails to establish a legitimate interest in preventing the transmission of this transcript. Regarding their allegations of a risk of misuse of information, the Court finds that the appellant has failed to meet their burden of substantiation, merely referring back to their previous submissions. This claim is therefore deemed inadmissible.
In conclusion, the appellant fails to demonstrate that their case raises a legal issue of principle or is of particular importance for any other reason. The arguments presented are insufficient to qualify the matter as a "case of particular importance."
Outcome
The Federal Supreme Court declares the appeal inadmissible. The court costs, set at CHF 2,000, are to be borne by the appellant.
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