TPF, 20.01.2026, RR.2023.127, RR.2023.128, RR.2023.129, RR.2023.130, RR.2023.131, RR.2023.132, RR.2023.133
Facts
Since 2005, Russia has been conducting a criminal investigation into A., a businessman, for fraud and breach of trust that caused hundreds of millions of dollars in losses to Russian state-owned enterprises, particularly through ship sale and leasing contracts.
In parallel, civil proceedings were initiated in the United Kingdom by these same Russian companies against A. In 2010, the High Court in London largely dismissed the claim, finding the transactions to be in line with market practices, and lifted the freezing order it had placed on A.'s assets. Furthermore, British courts refused to extradite A. to Russia and granted him political asylum, concluding that the criminal prosecution was politically motivated.
A few days after the British courts released the funds, Russia requested that Switzerland, through mutual legal assistance, re-freeze these same assets, which the Office of the Attorney General of Switzerland (OAG) did in 2011.
In 2018, a Moscow court sentenced A. in absentia to 15 years in prison and ordered the confiscation of the assets frozen in Switzerland, which were held in accounts under the names of several companies (Appellants 2 through 7), deeming them to be A.'s personal wealth. In 2019, Russia requested that Switzerland hand over these assets.
In a decision dated July 19, 2023, the OAG ruled that the conditions for the handover were met, but suspended the proceedings due to the general suspension of mutual legal assistance with Russia following the invasion of Ukraine, while maintaining the freezing order. A. (as the beneficial owner) and the companies holding the accounts appealed this decision to the Federal Criminal Court (FCC).
Legal Analysis
The FCC reiterates the legal framework for international mutual legal assistance, which is governed by the European Convention on Mutual Assistance in Criminal Matters (ECMA) and the Federal Act on International Mutual Assistance in Criminal Matters (IMAC).
The court emphasizes that, according to the case law of the Federal Supreme Court, the suspension of mutual assistance with Russia does not automatically lead to the release of frozen assets, as Switzerland's treaty obligations could become applicable again in the future.
The central question is whether there is standing to invoke the grounds for refusing mutual assistance provided for inArt. 2 IMAC (political nature of the proceedings, violation of defense rights guaranteed by the ECHR, serious procedural defects). According to consistent and restrictive case law from the Federal Supreme Court, only the individuals being prosecuted who are located on the territory of the requesting state or who are the subject of an extradition request may invoke these grounds. Legal entities or individuals located abroad (such as A., who is a refugee in the United Kingdom) do not have this standing.
The FCC also examines the principle of dual criminality, which requires that the facts described in the mutual assistance request be punishable under Swiss law. This examination is conducted prima facie, based on the statement of facts provided by the requesting state, without accepting an alternative version of the facts.
Finally, the court refers toArt. 1a IMAC, which allows for the refusal of mutual assistance if it would prejudice the sovereignty, security, public order, or other essential interests of Switzerland.
Application to the specific case
The Federal Criminal Court (FCC) declares A.'s appeal inadmissible, as he lacks standing to appeal solely as the economic beneficiary of the accounts. Conversely, the appeals filed by the account-holding companies (appellants 2 to 7) are admissible.
On the merits, the FCC finds itself at an impasse. On one hand, it is bound by the Federal Supreme Court's restrictive case law regarding Art. 2 of the Federal Act on International Mutual Assistance in Criminal Matters (IMAC). Since the appellants lack standing to invoke this article, the FCC cannot conduct an in-depth review of the numerous and serious allegations of procedural flaws in Russia (political motivation, lack of judicial independence, violation of the right to be heard, arbitrary assessment of damages, and bad faith on the part of the requesting state). Similarly, the review of dual criminality is limited to the facts presented by Russia and cannot take into account contrary findings by the British courts.
On the other hand, the FCC expresses serious doubts regarding the compliance of the Russian proceedings with the rule of law. It notes numerous plausible indications suggesting that mutual assistance is being diverted for illegitimate purposes and that the principle of trust in the requesting state is undermined. Granting mutual assistance would risk making Switzerland a party to a clearly flawed foreign decision and could violate Swiss public policy, particularly with regard to the Lugano Convention (as the confiscation request concerns a claim already rejected by a British judgment with res judicata effect).
To resolve this impasse, the FCC relies on Art. 1a IMAC. It considers that the handover of assets could harm the essential interests of Switzerland. As it does not have the authority to refuse mutual assistance on this basis (a power reserved for the political authority), it decides to refer the case to the Federal Department of Justice and Police (FDJP) to examine the appropriateness of such a refusal.
Outcome
The FCC declares A.'s appeal inadmissible and rejects the appeal of companies 2 to 7. However, given the serious doubts regarding the Russian proceedings and the risk of harm to Swiss public policy, it refers the case to the Federal Department of Justice and Police (FDJP) to determine whether mutual assistance should be refused under Art. 1a IMAC. No costs are awarded.
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