TPF, 07.04.2025, RR.2024.155
Facts
The Serbian authorities have submitted a request for mutual legal assistance in criminal matters to Switzerland as part of an investigation into potential tax fraud. In execution of this request, the Public Prosecutor's Office of the Canton of Geneva (MP-GE) ordered the handover of banking documentation for an account held by the company A. BV.
The latter appealed this decision to the Appeals Chamber of the Federal Criminal Court. During the proceedings, Serbia withdrew its request for assistance, thereby rendering the appeal moot. The only remaining issue to be decided was the allocation of the costs of the appeal proceedings.
Law
When appeal proceedings become moot (for example, following the withdrawal of the request for assistance by the requesting state), the court must rule on costs by taking into account the situation that prevailed before the event that ended the dispute.
The allocation of costs is based on a summary assessment of the probable outcome of the appeal: costs are charged to the party who would likely have lost had the proceedings been carried through to their conclusion.
To do this, the court examines, based on the file, whether the conditions for mutual assistance (notably dual criminality, proportionality, and the criminal nature of the foreign proceedings) appeared to be met and whether the appellant's grievances had any chance of success.
Application to the specific case
The Appeals Chamber conducted a summary examination of the merits of A. BV's appeal to determine who would likely have been unsuccessful.
The appellant raised several grievances: violation of its right to be heard, absence of dual criminality, violation of the principle of proportionality, and the civil rather than criminal nature of the Serbian proceedings.
The court concluded that none of these arguments would likely have been upheld:
- The appellant's arguments mostly pertained to the merits of the defense (exculpatory arguments), which have no place in mutual assistance proceedings.
- The facts described by Serbia (a structure of companies and simulated loans to evade tax on a significant amount) corresponded prima facie to the concept of tax fraud within the meaning of the Mutual Assistance Act (IMAC), thus fulfilling the condition of dual criminality.
- The handover of the requested banking documentation respected the principle of proportionality, as a sufficient objective link existed between the company's account and the suspicions of tax fraud.
- The proceedings conducted in Serbia indeed possessed a criminal character under Swiss law.
The court concluded that the conditions for mutual assistance were met and that the decision of the MP-GE was justified. Consequently, A. BV's appeal would very likely have been dismissed.
Outcome
The Complaints Chamber found that the appeal had become moot and struck the case from the docket.
Based on the likely outcome of the dispute, it determined that the appellant would have been unsuccessful. It therefore ordered her to pay a court fee of CHF 1,000 for the appeal proceedings.
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