FPC, 17.06.2026, BB.2026.37
Facts
As part of a major criminal investigation ("Aktion CH-Force") into alleged fraud in the field of credit intermediation and debt restructuring, the Office of the Attorney General of Switzerland (OAG) opened proceedings against several defendants. Among them, A. (the appellant) was initially charged with simple money laundering (Art. 305bis SCC), while B. was charged with fraud (Art. 146 SCC). (Facts, let. A-B)
On May 19, 2020, the OAG ordered retroactive and real-time surveillance of several telephone numbers used by B. and companies linked to him, as well as the use of an IMSI-Catcher. These measures were authorized by the Compulsory Measures Court of the Canton of Zurich (CMC ZH) on May 25 and June 16, 2020. On February 25, 2022, the Federal Judicial Police (FJP) submitted its surveillance analysis reports to the OAG. (Facts, let. C-F)
On November 25, 2022, the OAG extended the proceedings against the appellant to include charges of professional fraud (Art. 146 para. 2 SCC) and aggravated money laundering (Art. 305bis no. 2 SCC). Subsequently, on January 31, 2023, the OAG requested that the CMC ZH authorize the use of information gathered during the 2020 surveillance operations against the appellant as incidental findings. (Facts, let. G-H)
By decision of February 9, 2023, the CMC ZH authorized the use of these incidental findings against the appellant for the offenses of professional fraud and aggravated money laundering. The appellant filed an appeal against this decision with the Appeals Chamber of the Federal Criminal Court, seeking the annulment of the authorization and the invalidation of the evidence, which she argues does not constitute an incidental finding and for which the authorization request was untimely. (Facts, let. I-J; consid. 1.1-1.5)
Legal Analysis
Telecommunications surveillance is governed byArt. 269 CrimPC. It may be ordered by the public prosecutor if there is strong suspicion that a listed offense has been committed (lit. a), if the gravity of the offense justifies it (lit. b), and if other investigative measures are insufficient (lit. c). Fraud (Art. 146 SCC) and aggravated money laundering (Art. 305bis no. 2 SCC) are included in this list. The measure must be approved by the compulsory measures court. (consid. 2.3.1)
TheArt. 278 CrimPC governs the use of incidental findings. A finding is considered "personal" (Art. 278 para. 2 CrimPC) when surveillance reveals information regarding offenses committed by a person who was not the target of the initial surveillance order. Such information may only be used if the conditions for surveillance against this new person are met. When assessing whether there is reasonable suspicion (Art. 269 para. 1 let. a CrimPC), information derived from the incidental finding itself may be taken into account. Unauthorized incidental findings are strictly inadmissible (Art. 141 para. 1 CrimPC). (consid. 2.3.2)
Under Art. 278 para. 3 CrimPC, the public prosecutor's office must request authorization to use an incidental finding "without delay" ("unverzüglich"). Federal Supreme Court case law interprets this concept broadly. The decisive criterion is that the authorization request must be submitted before the surveillance results are used to order further investigative measures or are presented to the accused. If this condition is met, a delay in the request constitutes a mere violation of a procedural rule, which does not render the evidence inadmissible. Conversely, if the evidence is used before authorization is granted, it becomes strictly inadmissible. (consid. 2.3.3)
Application to the specific case
The Complaints Chamber first examines whether the information gathered truly constitutes a personal incidental finding. To do so, it refers to the initial surveillance order of May 19, 2020. This order targeted only B. for fraud. Although the appellant was mentioned in the proceedings, she was only suspected at the time of simple money laundering, an offense not included in the catalog of Art. 269 para. 2 CrimPC. Furthermore, the OAG had not demonstrated her involvement in the catalog offenses attributed to B. Consequently, the information concerning her, obtained through the surveillance of B., does indeed constitute a personal incidental finding within the meaning of Art. 278 para. 2 CrimPC. (consid. 2.5.1, 2.5.2)
The Court then addresses the alleged untimeliness of the authorization request. It notes the high complexity of the case, which involves a vast network, numerous companies, and a colossal volume of data (over 37 million files). The Federal Judicial Police reports from February 2022, while mentioning the appellant's name, did not yet establish a reasonable suspicion of a catalog offense against her. It was only after an in-depth analysis of numerous other pieces of evidence (bank data, new criminal complaints, MROS communications) that the OAG was able, on November 25, 2022, to extend the proceedings against the appellant to include professional fraud and aggravated money laundering. It was at this point that the suspicion of a catalog offense became sufficient. The OAG subsequently filed its authorization request on January 31, 2023. (consid. 2.6.1, 2.6.2)
The court deems this timeframe acceptable given the complexity of the case file. It rejects the appellant's argument that a suspicion of a catalog offense should have existed as early as 2020. Specifically, the principle of incidental findings allows the information discovered to be used to establish the suspicion necessary for its own authorization. Furthermore, the appellant did not allege, nor does the file indicate, that the OAG used this evidence against her before requesting authorization. Therefore, even if a delay were to be acknowledged, it would only be a violation of a procedural rule, with no impact on the validity of the evidence. (consid. 2.6.3, 2.6.4)
Finally, the Court finds that the reasoning provided in the decision of the Zurich Compulsory Measures Court was sufficient regarding the requirements ofArt. 274 para. 2 CrimPC, which imposes a five-day deadline for decisions and therefore does not require exhaustive reasoning, especially concerning the authorization of incidental findings in proceedings already underway. (consid. 2.7)
Issue
The Complaints Chamber dismisses the appeal in its entirety. It upholds the decision of the Zurich Cantonal Compulsory Measures Court authorizing the use of incidental findings against the appellant. The costs of the proceedings, set at CHF 2,000, are to be borne by the appellant. (considerations 3, 4 and operative parts 1-2)