FPC, 04.11.2025, RR.2024.73, RR.2024.74
Facts
As part of a wide-ranging investigation into the collapse of the Portuguese economic group C., the Portuguese judicial authorities submitted a request for mutual legal assistance to Switzerland. The investigation concerns offenses of fraud, money laundering, and corruption. Suspicions focus in particular on the late L., a former executive of the group, who allegedly received illicit payments in exchange for his cooperation in concealing the group's massive losses. These funds were allegedly deposited into bank accounts in Switzerland held jointly in his name and that of his wife, A.
In 2015, a joint investigation team was established between Switzerland and Portugal. The Office of the Attorney General of Switzerland (OAG) accepted the request for mutual assistance in 2018 and obtained documentation for two bank accounts held by the late L. and his wife. Following L.'s death in 2020, the OAG ordered the transmission of this documentation to Portugal in a closing decision dated June 10, 2024. L.'s heirs (his wife A. and B.) appealed this decision to the Federal Criminal Court.
Law
The Court notes that mutual legal assistance between Switzerland and Portugal is governed by the European Convention on Mutual Assistance in Criminal Matters (ECMA) and other international treaties, supplemented by the Federal Act on International Mutual Assistance in Criminal Matters (IMAC).
The Court examines two main grievances:
- Violation of the 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 case. According to case law, documents relating to the establishment of a joint investigation team are considered internal administrative documents and not documents essential for deciding on the granting of mutual assistance.
- Violation of the principle of proportionality and the relevance of evidence (Art. 63 para. 1 IMAC): The assessment of the relevance or necessity of the requested information is, in principle, the responsibility of the requesting state. The Swiss authority examines the request from the perspective of "potential relevance." This means it must transmit all documents with a sufficient connection to the foreign investigation to allow the requesting authority to uncover all aspects of a criminal mechanism. The granting of mutual assistance does not depend on the status (accused or otherwise) of the person concerned in Switzerland. A request for mutual assistance must be executed as long as it is not formally withdrawn by the requesting state.
Application to the specific case
The Court rejects the appellants' arguments.
Regarding the violation of the right to be heard, the Court confirms that the agreement establishing the joint investigation team is not an essential document in the mutual assistance file. The appellants had access to all decisive documents (the request for mutual assistance, the closing decision, and the list of documents to be transmitted) and were able to effectively exercise their rights.
Regarding the alleged lack of utility of the documents, the Court finds that the death of L. and the closure of the proceedings against him in Portugal do not render the transmission of the documents disproportionate or unnecessary. The banking documents retain potential utility for the ongoing Portuguese investigation into other defendants. The fact that the appellants themselves are not under investigation in Portugal is irrelevant. The existence of a sufficient connection between the potentially illicit funds deposited into the Swiss accounts and the investigation conducted in Portugal justifies the transmission of the documents. It is for the Portuguese trial judge, not the Swiss authorities, to assess the ultimate relevance of this evidence.
Outcome
The Federal Criminal Court dismisses the appeal. The OAG's decision to order the handover of the banking documentation to the Portuguese authorities is upheld. The costs of the proceedings are to be borne by the appellants.
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