Facts
In 2009, Italian authorities submitted a request for mutual legal assistance to Switzerland in connection with criminal proceedings against A. and others for various economic offenses (misappropriation, fraudulent bankruptcy, criminal conspiracy, tax fraud, swindling, and money laundering). They were accused of setting up a system of shell companies, managed by nominees, to win public cleaning contracts, divert the profits without paying taxes, and then rapidly liquidate those companies.
In 2014, Italy supplemented its request based on a preventive asset seizure procedure, distinct from the criminal proceedings, and obtained the freezing of several bank accounts in Switzerland linked to A. In 2020, as the confiscation order for these assets had become final in Italy, the Italian authorities requested that Switzerland execute it.
On June 18, 2025, the Office of the Attorney General of Switzerland (OAG) ordered the transfer to the Italian authorities of assets held in a bank account belonging to A. in Switzerland. A. (the appellant) filed an appeal against this decision with the Appeals Chamber of the Federal Criminal Court, requesting the annulment of the decision and the release of his assets.
Law
Mutual legal assistance between Switzerland and Italy is primarily governed by the European Convention on Mutual Assistance in Criminal Matters and its protocols, the 1998 Italo-Swiss Agreement, the relevant provisions of the Schengen Agreement, and the 1990 Strasbourg Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. For matters not covered by these instruments—or where domestic law is more favorable to assistance (principle of favor)—the IMAC and its ordinance apply on a subsidiary basis.
The Italian request is based on the preventive asset seizure procedure provided for by Legislative Decree no. 159/11. This allows for the confiscation of assets in a framework independent of the substantive criminal proceedings when there are objective and adversarial factual elements demonstrating, in particular, the social dangerousness of the accused and a manifest disproportion between their assets and their lawful income, or the illicit origin of the assets.
According to Swiss case law, this procedure is sufficiently similar to the confiscation mechanisms recognized by Swiss law to be assimilated to a "criminal case" within the meaning of Articles 1(3) and 63 of the IMAC, making mutual assistance possible in principle. However, the judge overseeing the assistance must verify on a case-by-case basis that fundamental guarantees (notably the right to an adversarial process and the requirements stemming from the ECHR) are respected, without reviewing the merits of the foreign decision.
Application to the specific case
The appellant argued that the preventive asset seizure procedure violated his fundamental rights (notably the presumption of innocence and the principles of nulla poena sine lege and ne bis in idem), because the main criminal proceedings against him had been dismissed due to the statute of limitations.
The Appeals Chamber rejects this argument. It emphasizes that the criminal proceedings did not result in an acquittal on the merits ("the facts are not established"), but rather a dismissal due to the statute of limitations. Under Italian law, this distinction is fundamental: a dismissal due to the statute of limitations does not prevent the use of evidence gathered to support a judgment of social dangerousness within the framework of preventive proceedings.
The Court finds that the Italian judicial authorities conducted a thorough and documented analysis, in compliance with the adversarial principle, to establish:
- The social dangerousness of the appellant, based on "repeated, premeditated, planned, and prolonged illicit conduct" between 1996 and 2008.
- The manifest disproportion between the appellant's immense assets (direct or indirect) and his lawful income.
- The causal link between the criminal activities and the seized assets.
The Court considers that the Italian confiscation decision is based on objective facts and not on mere suspicion. Consequently, it violates neither the presumption of innocence, nor the guarantee of property, nor the other principles invoked. The claim of a violation of the principle of non-retroactivity is also dismissed, as the norms applied are procedural in nature.
Finally, the Court deems that the confiscation of the account balance (approximately 214,000 CHF) is not disproportionate given the total damage estimated by the Italian authorities at over 100 million euros.
Outcome
The Federal Criminal Court has dismissed the appeal and upheld the OAG's decision to order the handover of assets to the Italian authorities. Legal costs are to be borne by the appellant.
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