FPC, 10.12.2025, RR.2024.69
Facts
As part of an investigation into aggravated breach of trust and money laundering against C., the Portuguese Public Prosecutor's Office submitted a request for mutual legal assistance to Switzerland. The Office of the Attorney General of Switzerland (OAG) was tasked with its execution. The OAG ordered the freezing of a bank account held by A., C.'s son, and requested the production of related documentation for the period from 2014 to 2022. In a closing decision, the OAG authorized the transfer of this documentation to Portugal and maintained the freeze on the assets. A. appealed this decision, arguing that the mutual assistance request did not expressly target his account and that the measure was disproportionate, as some of the documentation had already been provided in connection with a previous request in 2017.
Legal Analysis
Mutual legal assistance between Switzerland and Portugal is governed by the European Convention on Mutual Assistance in Criminal Matters (ECMA) and, secondarily, by the Federal Act on International Mutual Assistance in Criminal Matters (IMAC). According to case law, the principle of proportionality (Art. 63 para. 1 IMAC) and the principle of potential relevance dictate that mutual assistance should only be refused if the requested measures are clearly unrelated to the offense under investigation. The executing authority (the OAG) has a margin of discretion in interpreting the request for assistance. A broad interpretation is permissible if the conditions for assistance are met, in order to avoid the need for supplementary requests. The executing authority has a duty of completeness and proactivity, allowing it to transmit documents not expressly mentioned but useful to the foreign investigation. A request for assistance must set out the facts sufficiently to allow the requested authority to verify compliance with the conditions for granting assistance, but a full account is not required.
Application to the Case
The Federal Criminal Court (FCC) examined whether the OAG exceeded its mandate by including the appellant's (A.) account in the mutual assistance measures. The FCC found that there is a sufficient nexus between the appellant's account and the Portuguese investigation, as this account was credited with 3 million euros from a company whose beneficial owner was his father, C., who is the subject of the proceedings. The Portuguese request, although not naming A., was formulated very broadly, seeking the seizure of "all funds deposited in bank accounts held by C. at Swiss banking institutions." The FCC ruled that this wording, combined with the nexus and the OAG's duty of proactivity, authorized a broad interpretation that included the appellant's account. Regarding the argument concerning the prior transmission of documents, the FCC noted that the new request covers a much longer period (eight additional years). It is for the requesting authority, not the OAG, to assess the usefulness of this additional information. The FCC concluded that the OAG did not violate the principle of proportionality by ordering the transfer of the documentation and maintaining the freeze, as these measures were justified by the link to the offense and the objective of securing a claim of 399 million euros.
Outcome
The Federal Criminal Court dismissed the appeal. The OAG's decision to order the transfer of the bank documentation and to maintain the freeze is upheld. The costs of the proceedings are charged to the appellant.
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