FPC, 04.11.2025, RR.2024.71, RR.2024.72
Facts
As part of a wide-ranging criminal investigation into the collapse of the Portuguese business group B., the Portuguese authorities have submitted a request for mutual legal assistance to Switzerland. The investigation concerns offenses of fraud, money laundering, and corruption. The request aims, in particular, to obtain documentation for several Swiss bank accounts held by the appellant (A.) and/or her late husband (K.). The latter, a former executive of group B., is suspected of having received illicit payments in exchange for his involvement in criminal acts, funds which allegedly passed through these Swiss accounts. The Office of the Attorney General of Switzerland (OAG) ordered the transmission of the requested banking documentation. The appellant, K.'s wife, filed an appeal against this decision. She claims a violation of her right to be heard, as she was not granted access to the agreement establishing a joint investigation team between Switzerland and Portugal. She also argues that the transmission of the documents has become unnecessary and disproportionate, given that her husband is deceased and the Portuguese criminal proceedings concerning him are closed, while she herself is not a defendant in this case.
Law
The Federal Criminal Court (FPC) reiterates the principles governing international mutual legal assistance in criminal matters.
- Right to be heard (Art. 29 Cst. ; Art. 80b IMAC): This right guarantees access to the file, but is limited to documents decisive for the outcome of the proceedings. Internal administrative documents or those not essential to the decision-making process may be excluded from review.
- Principle of potential relevance: It is not for the Swiss authority to assess whether the requested information is actually necessary or useful for the foreign investigation. This assessment falls under the exclusive jurisdiction of the requesting state. The Swiss authority merely verifies that there is a sufficient connection between the facts described in the request and the information sought.
- Duty of completeness: The executing authority must transmit all elements likely to shed light on the foreign investigation, including both incriminating and exculpatory evidence.
- Status of the person concerned: The granting of mutual assistance does not depend on the status of the person targeted by the measure (e.g., an account holder) in the foreign proceedings. Mutual assistance may be granted even if that person is not a defendant.
- Execution of the request: In the absence of a formal withdrawal of the request by the requesting state or a ground for inadmissibility provided by law (Art. 5 IMAC), the Swiss authority is required to continue the execution of the request.
Application to the specific case
The FPC rejects the appellant's arguments.
- Regarding the alleged violation of the right to be heard, the court confirms, based on Federal Supreme Court case law, that the agreement establishing a joint investigation team is an internal administrative document and not a document essential for deciding on the granting of mutual assistance. The appellant had access to all decisive documents, notably the request for mutual assistance and the list of documents to be transmitted, which allowed her to effectively defend her interests.
- On the merits, the Federal Criminal Court considers that the principle of potential relevance is satisfied. Although the proceedings against the appellant's husband were closed due to his death, the banking documentation remains potentially relevant to the investigation conducted against other defendants in the same case. These documents can help trace the flow of illicit funds and establish the facts. The fact that the appellant is not herself a defendant in Portugal is irrelevant. As the Portuguese authorities have not withdrawn their request, Switzerland is obliged to execute it. The connection between the banking documents and the Portuguese investigation is deemed sufficient.
Outcome
The Federal Criminal Court joins the two cases, dismisses the appeals, and confirms the OAG's decision to order the transmission of the banking documentation to the Portuguese authorities. The legal costs are to be borne by the appellant.
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