Federal Criminal Court, 13.11.2025, RR.2025.113
Facts
In 2009, Italian authorities submitted a request for mutual legal assistance to Switzerland in the context of criminal proceedings against A. (the appellant) and others for various economic offenses (misappropriation, fraudulent bankruptcy, criminal conspiracy, tax fraud, etc.). They were suspected of having established a complex system of shell companies, managed by nominees, to embezzle profits from public tenders in the cleaning sector, notably by evading taxes.
In 2014, Italy supplemented its request, seeking the seizure for confiscation purposes of assets linked to the appellant, based on a decision rendered in the context of a "preventive asset proceeding." The Office of the Attorney General of Switzerland (OAG) complied and blocked two bank accounts in Switzerland.
In 2020, the Italian authorities informed the OAG that the confiscation order had become final and enforceable in Italy, and requested the handover of the seized assets. In June 2025, the OAG ordered the transfer of the funds. The appellant appealed this decision to the Federal Criminal Court.
Legal Analysis
The Court notes that mutual legal assistance relations between Switzerland and Italy are primarily governed by the European Convention on Mutual Assistance in Criminal Matters (ECMA), its additional protocols, the Convention implementing the Schengen Agreement, the Strasbourg Convention on Laundering, and the bilateral Italo-Swiss agreement. Subsidiarily, and in accordance with the principle of favor, the Federal Act on International Mutual Assistance in Criminal Matters (IMAC) and its ordinance apply to matters not covered by international treaty law.
The central issue concerns the compatibility of the Italian preventive asset proceeding based on Legislative Decree No. 159/2011 with the Swiss legal order. This procedure, which is autonomous from the underlying criminal proceedings, allows for the confiscation of assets when there is objective and sufficiently substantiated evidence establishing the subject's social dangerousness and a manifest disproportion between their assets and lawful income, as well as a connection to illicit activities.
Established Swiss case law accepts that this procedure is sufficiently similar to Swiss independent confiscation mechanisms and can be equated to a "criminal case" within the meaning of Articles 1(3) and 63 of the IMAC, such that mutual assistance may be granted. However, the Swiss judge overseeing the assistance remains obligated to verify that the foreign procedure respects fundamental guarantees, in particular the right to be heard, the adversarial principle, and the requirements stemming from the ECHR. The fact that the main criminal proceedings were closed due to the statute of limitations does not constitute an acquittal on the merits and does not, in itself, invalidate the findings of the preventive asset proceeding, which is legally autonomous.
Application to the Case
The appellant argued that the preventive asset proceeding violated his fundamental rights (presumption of innocence, ne bis in idem, non-retroactivity), particularly because the criminal proceedings against him had been dismissed due to the statute of limitations. He also challenged the proportionality of the confiscation.
The Federal Criminal Court rejects these arguments. It finds that the Italian authorities conducted an adversarial proceeding across several instances to establish the appellant's "social dangerousness" and the link between his illicit activities (a sophisticated criminal system operating from 1996 to 2008 and beyond) and his assets. The Italian decisions are based on objective and documented factual elements, not mere suspicion.
The Court highlights the distinction in Italian law between an acquittal on the merits ("the fact is not established") and a dismissal due to the statute of limitations. The appellant was not acquitted; the criminal action simply expired. This outcome does not call into question the factual findings upon which the confiscation decision in the autonomous preventive proceeding is based.
Finally, the Court deems the measure proportionate. The total amount of illicitly obtained assets was estimated by Italy at over 100 million euros. The confiscation of assets in Switzerland (approximately 3.7 million euros) therefore does not appear disproportionate.
Outcome
The Federal Criminal Court dismisses the appeal. The OAG's decision ordering the transfer of the assets to the Italian authorities is upheld. The legal costs are charged to the appellant.
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