FPC, 10.12.2025, RR.2024.135
Facts
Kuwait has submitted a request for mutual legal assistance to Switzerland in connection with an investigation into the misappropriation of public funds and money laundering against B., the former Director General of Institute D., and his wife, C. They are suspected of having received illicit kickbacks from the Institute's business partners, notably through a business introducer named E.
The Office of the Attorney General of Switzerland (OAG) was tasked with executing the request. In this context, it ordered the transmission to the Kuwaiti authorities of banking documentation for an account held by Foundation A. at Bank F. Foundation A. is a Liechtenstein family foundation established by E., who was its beneficial owner until 2012.
Foundation A. is appealing the OAG's closing decision ordering the handover of these documents. It cites, in particular, the death of B. in 2022, a violation of the principle of specialty, and a violation of the principle of proportionality.
Law
The Federal Criminal Court (FPC) reiterates the legal principles applicable to international mutual legal assistance:
- Continuation of the mutual assistance procedure: According to established case law, only a formal withdrawal of the request by the requesting state can justify Switzerland abandoning its execution. The death of an accused person does not automatically end the mutual assistance procedure, especially if other individuals are targeted by the foreign investigation.
- Principle of specialty (Art. 67 IMAC): Information obtained through mutual assistance may only be used for the criminal proceedings for which it was requested. Switzerland presumes that the requesting state will respect this principle. A past violation is not sufficient to overturn this presumption. Furthermore, only persons facing a concrete and personal risk of prohibited use of the information may invoke a violation of this principle.
- Principle of proportionality (Art. 63 IMAC): The Swiss authority's review is based on the criterion of the "potential relevance" of the information to the foreign investigation. It is sufficient that there is a sufficient connection between the facts under investigation and the documents requested. Assessing the actual utility or necessity of the evidence is the responsibility of the trial judge in the requesting state. This principle justifies the transmission of complete documentation, even if it covers a broader period than that of the investigation, in order to understand the entire criminal mechanism and avoid supplementary requests.
Application to the specific case
The FPC applies these principles to the appellant's arguments:
- Regarding the death of the accused B.: As the Kuwaiti authorities have not withdrawn their request, the mutual assistance procedure must continue. Furthermore, the investigation in Kuwait also targets B.'s wife, and there is no indication that the proceedings against her have been closed. The objection is therefore dismissed.
- Regarding the principle of specialty: The appellant alleges that previously transmitted documents were used in civil proceedings in England. The FPC deems this objection ineffective. The appellant does not demonstrate how it would suffer personal and direct prejudice from this alleged use, as it is not a party to those proceedings. Moreover, the FPC notes that the OAG correctly reminded the requesting state of its obligation to respect the principle of specialty, which is considered sufficient.
- Regarding the principle of proportionality: The Federal Criminal Court considers that the banking documents are potentially useful for the Kuwaiti investigation. The account of Foundation A. was established and controlled by E., a central figure in the kickback scheme. It was funded by millions originating from a company controlled by E. during the period under investigation. This connection is sufficient to justify the transfer. It is for the Kuwaiti authorities, not the Swiss, to determine the final relevance of these documents. The transfer of the entire documentation, from the opening to the closing of the account, is deemed proportionate.
Outcome
The Federal Criminal Court dismisses the appeal of Foundation A. and confirms the decision of the Office of the Attorney General of Switzerland to grant mutual legal assistance to Kuwait by handing over the requested banking documentation. The costs of the proceedings are to be borne by the appellant.
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