FPC, 20.10.2025, RR.2025.110
Facts
As part of criminal proceedings conducted in Ukraine against A., the Ukrainian authorities submitted a request for mutual legal assistance to Switzerland to obtain documents relating to a bank account held by C. Group. The Office of the Attorney General of Switzerland (OAG) granted the request.
An initial appeal filed by C. Group with the Appeals Chamber of the Federal Criminal Court (FPC) was declared inadmissible, as the group had already been dissolved at the time of filing. Subsequently, A. requested that the OAG recognize his status as a party to the mutual assistance proceedings. He argued that, as the beneficial owner of the account subject to the mutual assistance measure and the sole shareholder of the dissolved group, he was the only person who could oppose the measure.
The OAG rejected his request, arguing, among other things, that the bank documents identified another person (D., A.'s brother) as the beneficial owner of the account. A. appealed this decision to the FPC.
Legal Analysis
Under the Federal Act on International Mutual Assistance in Criminal Matters (IMAC), the right to appeal against a mutual assistance measure belongs to anyone who is personally and directly affected by the measure and has a legitimate interest in its cancellation or modification (Art. 80h let. b IMAC). For the transmission of banking information, only the account holder is generally considered to be personally and directly affected (Art. 9a let. a OIMAC).
Case law generally denies the beneficial owner of an account the right to appeal. An exception is made when the account holder is a legal entity that has been dissolved and liquidated in a non-abusive manner. Furthermore, the beneficial owner must be clearly designated in the dissolution deed as the recipient of the liquidation proceeds, and the proceeds must have actually been received by them. The burden of proof for these elements lies with the person requesting party status.
Application to the case
The FPC examined whether the appellant (A.) had proven his status as the beneficial owner. The court noted that the mere fact of being the sole shareholder of the company is not sufficient to establish this status.
The analysis of the bank documents is decisive. Form A, signed by the appellant himself when the account was opened, explicitly designates his brother D. as the "beneficial owner," with the appellant mentioned only as the "Administrator." Subsequent documents confirm that D. was considered by the bank to be the person in control and was the subject of anti-money laundering checks. The bank had even explicitly noted that the shareholder and director of the account holder (A.) was not the beneficial owner (D.).
The court concluded that the documents in the file indicate that the appellant held only a formal position as a shareholder, while his brother D. retained effective economic control over the assets. As the appellant failed to prove his status as the beneficial owner, it is unnecessary to examine the other conditions, particularly those related to the company's liquidation.
Outcome
The Federal Criminal Court dismissed the appeal. The legal costs are to be borne by the appellant.
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