Judicial assistance to Poland - Principle of proportionality, trade secrets and professional privilege

TPF, 09.09.2025, RR.2024.7

Facts

The Polish authorities have submitted a request for mutual legal assistance to Switzerland in connection with a money laundering investigation involving four Polish companies. These companies are suspected of having received tens of millions of euros and dollars into their accounts between May 2018 and January 2019, and subsequently transferring these funds to other foreign companies without economic justification and based on forged documents.

The Public Prosecutor's Office of the Canton of Geneva (MP-GE), responsible for executing the request, ordered the handover to the Polish authorities of banking documentation relating to an account held in Switzerland by A. AG (the appellant), as this account had been identified in the Polish investigation. A. AG filed an appeal against this handover decision.

Legal Analysis

The Appeals Chamber of the Federal Criminal Court (FCC) reiterates the principles governing international mutual legal assistance in criminal matters, in particular the European Convention on Mutual Assistance in Criminal Matters (ECMA) and the Federal Act on International Mutual Assistance in Criminal Matters (IMAC).

1. Right to be heard (Art. 29 para. 2 of the Constitution): This right entails an obligation for the authority to provide reasons for its decision. The reasoning is sufficient if it sets out, even briefly, the grounds that guided the decision, allowing the party concerned to challenge it with full knowledge of the facts. Implicit reasoning may suffice, and any potential violation may be remedied during the appeal proceedings.
2. Principle of proportionality and potential relevance: In matters of mutual assistance, it is primarily for the requesting state to assess whether the requested information is useful for its investigation. The Swiss authority may only refuse transmission if the documents are manifestly unrelated to the offense under investigation. The principle of potential relevance allows for a broad interpretation of the request, including the handover of documents predating or postdating the period of the facts, in order to ensure completeness and avoid supplementary requests.
3. Protection of secrets (Art. 9 IMAC):
   1. Business secrets: These do not constitute an absolute obstacle to mutual assistance. Their importance is weighed against the public interest in criminal prosecution within the framework of the principle of proportionality.
   2. Professional secrecy (Art. 321 of the Criminal Code and Art. 264 of the Criminal Procedure Code): Only qualified professional secrecy (lawyers, notaries, etc.) offers protection. For notaries, this protection covers only their typical (ministerial) activities, excluding commercial activities. In matters of mutual assistance, the person invoking professional secrecy is subject to an increased duty of cooperation and substantiation.

Application to the case at hand

The Court rejects the appellant's claims.

1. Regarding the violation of the right to be heard: The Court finds that the reasoning provided by the MP-GE was sufficient. By stating that all documentation was relevant under the principle of potential relevance, the MP-GE implicitly but clearly rejected the appellant's arguments concerning the period of the facts and business secrets. Furthermore, the appellant was able to effectively challenge the decision.
2. Regarding the violation of the principle of proportionality: The transmission of the entire banking documentation is deemed proportionate. Since the appellant's account was identified by the requesting state, there is an objective link to the investigation. Under the principle of potential relevance and the duty of completeness, it is justified to transmit documents covering a period broader than that of the alleged facts and not to redact the names of third parties, in order to allow the Polish authorities to understand the entirety of the financial flows.
3. Regarding the violation of secrets: The invoked business secret does not outweigh the public interest in elucidating a serious money laundering offense. Concerning the notary's professional secrecy, the FCC notes that the appellant, as a client, cannot invoke it directly and that it failed in its duty of cooperation by not establishing that the payment in question fell under a typical and protected activity of the notary.

Outcome

The FCC dismisses the appeal. The decision of the MP-GE is upheld. The costs of the proceedings are to be borne by the appellant.

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