TPF, 13.11.2025, RR.2024.145
Facts
The National Anti-Corruption Bureau of Ukraine (NABU) is conducting criminal proceedings against B., a former high-ranking official, on suspicion of corruption. B. is suspected of having manipulated VAT refund lists between 2015 and 2016 to favor companies controlled by F. in exchange for bribes. These illicit funds allegedly passed through several companies, including the appellant, A. AG.
In this context, the NABU sent a request for mutual legal assistance to Switzerland, seeking the transmission of banking documents (for the 2015-2016 period) and IP addresses linked to A. AG's account. The Office of the Attorney General of Switzerland (OAG) ordered the collection of the documents and, by a partial closing decision dated November 7, 2024, authorized their transfer to Ukraine. The company A. AG appealed this decision to the Appeals Chamber of the Federal Criminal Court.
Law
The Court reiterates the principles governing international mutual assistance in criminal matters, based on European conventions (notably the ECPMA) and the Federal Act on International Mutual Assistance in Criminal Matters (IMAC).
- Competence of the requesting authority : Mutual assistance may only be refused if the requesting state is manifestly incompetent. The internal distribution of judicial powers within that state does not need to be examined by Switzerland, provided the request originates from a recognized judicial authority.
- Principle of proportionality and potential relevance : Requested documents must be transmitted if they are potentially relevant to the foreign investigation. It is sufficient that they could be useful, including as exculpatory evidence. It is the responsibility of the appellant to demonstrate precisely how certain documents would be manifestly useless to the investigation.
- Attorney-client privilege : This privilege only protects activities typical of the legal profession (legal advice, legal representation) and not commercial activities. Furthermore, the right to invoke it may be lost if objections are not raised in a timely manner or if documents are voluntarily transmitted to a third party (such as a bank).
- Obstacles to mutual assistance (art. 2 IMAC) : A legal entity not accused in the foreign proceedings generally lacks standing to invoke a violation of its fundamental rights or procedural principles guaranteed by the ECHR.
- Principle of specialty : Under the principle of trust, it is presumed that the requesting state will respect the specialty clause (using information solely for the proceedings in question), unless there is concrete evidence to the contrary.
Application to the specific case
The Complaints Chamber applies these principles to the appellant's arguments:
- NABU's jurisdiction : The Court confirms its established case law that the NABU is a judicial authority empowered to submit requests for mutual assistance. The appellant's arguments regarding a change in internal jurisdiction in Ukraine following the opening of the investigation are deemed irrelevant, as there is no indication of manifest lack of jurisdiction.
- Proportionality : The account of A. AG is suspected of having served as a conduit for the transfer of bribes. The bank documents are therefore potentially relevant for reconstructing financial flows. The requested period corresponds to that of the alleged offenses. The disclosure of the documents is deemed proportionate.
- Attorney-client privilege : The appellant did not invoke attorney-client privilege in a sufficiently detailed manner or in a timely fashion before the OAG. It is therefore precluded from doing so at the appeal stage. Furthermore, by transmitting the documents to its bank, it waived the protection of privilege.
- Obstacles to mutual assistance and the situation in Ukraine : As a non-accused legal entity, A. AG lacks standing to invoke Art. 2 IMAC. The Court adds that, despite the war, there is no concrete evidence to suggest that the Ukrainian justice system is no longer functional. Fears of a future takeover by Russia are pure speculation.
- Principle of specialty : The OAG's decision includes a specialty clause. The publication on the internet of documents from another mutual assistance case does not constitute a violation of the principle of specialty by the Ukrainian authorities. This falls under the public nature of judicial proceedings in Ukraine, which may differ from Swiss practices, but does not prove an intent to use the information for other purposes.
Outcome
The Federal Criminal Court dismisses the appeal in its entirety and confirms the OAG's decision to authorize the handover of A. AG's bank documents to the Ukrainian authorities. The legal costs are to be borne by the appellant.
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