Federal Supreme Court, 26.05.2025, 7B_381/2025
Facts
An investigation, initially conducted by the Office of the Attorney General of Switzerland (OAG) and subsequently taken over by the Lucerne Public Prosecutor's Office, revealed the existence of two Albanian criminal groups involved in drug trafficking and the laundering of several million francs through a travel agency in Lucerne. On February 10, 2022, proceedings were opened against the appellant, A.________, and other defendants on suspicion of aggravated money laundering. On February 23, 2023, the OAG took over the entire case and expanded it to include suspicions of participation in or support of a criminal organization (Art. 260ter SCC), aggravated money laundering (Art. 305bis para. 2 SCC) and aggravated violations of the Narcotics Act (Art. 19 para. 2 Narcotics Act). (A.)
On September 3, 2024, the appellant and several co-defendants were arrested. The Bern Cantonal Compulsory Measures Court ordered their pre-trial detention. After an initial request for release was denied, the appellant's detention was extended once, and then a second time until June 3, 2025, by a decision dated March 7, 2025. The appellant filed an appeal against this latest extension with the Appeals Chamber of the Federal Criminal Court, requesting his immediate release or, alternatively, the application of substitute measures, as well as the granting of legal aid. By decision of April 17, 2025, the Appeals Chamber dismissed the appeal on the merits and the request for legal aid, ordering the appellant to pay the costs. (B.)
The appellant has filed a criminal appeal with the Federal Supreme Court, reiterating his requests for release and for the granting of legal aid for both the cantonal and federal proceedings. (C., 1.)
Legal Grounds
Pre-trial detention and detention for security reasons are permissible if the defendant is strongly suspected of having committed a crime or misdemeanor and there is a serious risk that they might jeopardize the search for the truth by influencing persons or tampering with evidence. This is known as the risk of collusion (Art. 221 para. 1 let. b CrimPC). Substitute measures must be ordered if they can achieve the same purpose as detention (Art. 212 para. 2 let. c and 237 CrimPC). (3.1.)
The risk of collusion is intended to prevent the accused from interfering with the establishment of the facts. A mere theoretical possibility of collusion is insufficient; concrete evidence is required. Such evidence may stem from the accused's behavior, personality, role in the offense, and connections to those implicating them. The assessment of this risk depends on the nature of the evidence to be protected, the severity of the offenses, and the stage of the proceedings. The further the investigation has progressed, the higher the requirements for establishing a risk of collusion. (3.2.)
Legal aid is granted to an indigent party if their case is not devoid of any chance of success (Art. 64 para. 1 LTF). A case is considered to have no chance of success when the prospects of winning are significantly lower than the risks of losing. The decisive question is whether a person with the necessary financial means would pursue the lawsuit after careful consideration. Case law specifies that, in the context of detention appeals, the condition of a lack of chances of success must be applied with restraint. (4.1.)
Application to the specific case
The appellant is strongly suspected of having systematically collected, managed, and transferred funds derived from drug trafficking within an Albanian criminal organization, notably via "hawala" systems or by smuggling cash to Kosovo. He allegedly acted as a driver and money collector on behalf of one of the network's leaders, G.________. The appellant does not contest the serious suspicions against him, but only the existence of a risk of collusion. (3.1., 3.3.)
The lower court identified a risk of collusion based on several factors. The investigation, which is highly complex, is far from complete. The analysis of financial transactions, documents seized in Switzerland and Albania, and the processing of evidence are still ongoing. New elements, particularly chat conversations, suggest that the appellant's role may be more significant than that of a mere courier, implicating him in the transfer of over 720,000 CHF under the instructions of another person, H.________. Furthermore, the appellant's previous behavior during interrogations (admitting only to facts that have become irrefutable) and the group's use of encrypted communications and code names demonstrate an intent to conceal. Numerous hearings of witnesses and persons called to provide information have yet to take place, and their sincerity could be compromised by the appellant's release. (3.4.)
The Federal Supreme Court upholds this analysis. It considers that the scale of the case, its international dimension, and the number of people involved justify the duration of the investigation. The risk that the appellant, once released, might influence co-defendants or witnesses not yet identified or questioned is concrete, particularly given his ties to individuals abroad such as H.________. The Federal Supreme Court therefore confirms the existence of a risk of collusion. Regarding alternative measures, it judges, like the lower court, that they would be ineffective in preventing the appellant from communicating with other members of the network via modern means. (3.5., 3.6.)
Regarding legal aid, the lower court rejected the request on the grounds that the appeal was "manifestly unfounded" and "devoid of any chance of success from the outset." The Federal Supreme Court censures this assessment. It reiterates that the condition regarding chances of success must be applied with restraint in matters of detention. Since the lower court itself cited "new evidence" to justify the extension of detention, it could not consider the appeal to be doomed to failure from the start. The rejection of the legal aid request on these grounds therefore violates federal law. (4.2.)
Outcome
The Federal Supreme Court dismisses the appeal insofar as it contests the extension of pre-trial detention. (1., 5.)
It partially concedes the point regarding the refusal of legal aid. It sets aside points 2 and 3 of the operative part of the contested judgment (refusal of legal aid and assessment of costs to the appellant) and remits the case to the lower court to examine the appellant's indigence. (1., 5.)
No court costs are charged for the federal proceedings. The appellant is awarded legal fees, to be borne in part by the Confederation and in part by the Federal Supreme Court's treasury under the legal aid scheme. (2., 3., 4., 5.)
