TPF, 13.11.2025, RR.2024.147
Facts
The National Anti-Corruption Bureau of Ukraine (NABU) is conducting criminal proceedings against B., a former high-ranking official, on suspicion of corruption. Between 2015 and 2016, B. allegedly illegally favored companies controlled by F. by accelerating their VAT refunds in exchange for bribes. These funds reportedly passed through several companies, including the appellant, A. Ltd.
In this context, the NABU submitted a request for mutual legal assistance to Switzerland on September 29, 2021, seeking the transmission of bank documents (for the period from May 5, 2015, to December 31, 2016) and IP addresses linked to the accounts of A. Ltd. and other companies.
The Office of the Attorney General of Switzerland (OAG), responsible for execution, ordered the production of the documents. On November 7, 2024, via a partial closing order, the OAG authorized the transmission of A. Ltd.'s bank documents to the Ukrainian authorities. A. Ltd. appealed this decision to the Appeals Chamber of the Federal Criminal Court.
Law
The Court reiterates the principles governing international mutual legal assistance in criminal matters between Switzerland and Ukraine, based primarily on the European Convention on Mutual Assistance in Criminal Matters (ECMA) and subsidiarily on the Federal Act on International Mutual Assistance in Criminal Matters (IMAC).
- Jurisdiction of the requesting authority : Mutual assistance may only be refused on the grounds of the requesting authority's lack of jurisdiction if it is manifestly incompetent. The internal organization of judicial competencies of the requesting state is, in principle, not examined by the requested state.
- Principle of proportionality and potential relevance : The transmission of documents is permitted if they are potentially relevant ("potenzielle Erheblichkeit") to the foreign investigation. It is not for the Swiss authorities to judge the utility or necessity of evidence for the foreign proceedings. However, the request must not constitute a "fishing expedition." The person concerned has an obligation to cooperate and to demonstrate in a concrete and reasoned manner why certain documents lack relevance.
- Attorney-client privilege : Protection covers only activities typical of the legal profession (legal advice, representation in court) and not commercial or management activities.
- Principle of specialty : The information transmitted may only be used within the framework of the proceedings for which mutual assistance was granted. Compliance with this principle by a state party to a treaty is presumed under the principle of trust.
- Grounds for refusal (art. 2 IMAC) Mutual legal assistance is refused if the foreign proceedings violate the fundamental principles of the ECHR. In principle, a legal entity may only invoke this article if it is itself a defendant in the foreign proceedings.
Application to the specific case
The Complaints Chamber rejects all of the appellant's grievances:
- Jurisdiction of the NABU The Court confirms its established case law that the NABU is a judicial authority empowered to submit requests for mutual legal assistance. As the investigation was ongoing at the time of the request and the request had been validated by a Ukrainian prosecutor and court, there is no manifest lack of jurisdiction.
- Proportionality The banking documents are deemed potentially relevant for reconstructing the financial flows linked to the corruption allegations. The appellant's account is explicitly mentioned in the request as having potentially been used for the transit of illicit funds. The period covered by the documents is appropriate.
- Attorney-client privilege : The argument is rejected. Firstly, the appellant did not raise this point in a sufficiently substantiated and timely manner before the OAG, thereby forfeiting its right to do so at the appeal stage. Secondly, by transmitting the documents to its bank, it waived any potential protection.
- Data protection and the situation in Ukraine (Art. 2 IMAC) : The appellant, as a legal entity not named as a defendant in the Ukrainian proceedings, lacks standing to invoke a violation of its fundamental procedural rights. Furthermore, the Court considers that there is no concrete evidence that the Ukrainian judicial system is no longer functional despite the war. Fears of a takeover by Russia are deemed speculative.
- Principle of specialty : The Court relies on the principle of trust in Ukraine. The OAG's order contains a specialty reservation. The publication on the internet of documents from a public hearing in Ukraine by third parties is a matter of Ukrainian procedural law and does not constitute a violation of the principle of specialty by the requesting authorities.
Outcome
The appeal is dismissed in its entirety. The court costs, set at CHF 5,000, are to be borne by the appellant.
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