Facts
In 2009, Italian authorities submitted a request for mutual legal assistance to Switzerland in connection with criminal proceedings against B. and others for various offenses (misappropriation, fraudulent bankruptcy, criminal conspiracy, tax fraud, etc.). The accused are suspected of having set up a system of shell companies to divert profits from public tenders in the cleaning sector, notably by evading taxes.
In 2014, Italy supplemented its request, informing Switzerland that a seizure order for the purpose of confiscation had been issued as part of a "preventive asset proceeding" targeting B.'s assets, including a bank account in Switzerland held in the name of A. Limited. The Office of the Attorney General of Switzerland (OAG) initiated proceedings and ordered the freezing of this account.
In 2020, Italian authorities informed the OAG that the confiscation order had become final and enforceable, and requested the handover of the assets. On June 18, 2025, the OAG ordered the transfer of the funds to Italy. A. Limited appealed this decision to the Federal Criminal Court.
Legal Analysis
Mutual legal assistance between Switzerland and Italy is primarily governed by the European Convention on Mutual Assistance in Criminal Matters (ECMA) and its protocols, the 1998 Italo-Swiss agreement, relevant Schengen provisions (CISA), and the 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 Swiss Federal Act on International Mutual Assistance in Criminal Matters (IMAC) and its ordinance apply subsidiarily.
The core issue of the case concerns the compatibility of the Italian preventive asset proceeding (Legislative Decree No. 159/11) with the Swiss legal order. This procedure allows for confiscation within a framework independent of the substantive criminal proceedings, based on indicators of social danger and evidence demonstrating, in particular, a disproportion between assets and lawful income.
According to Swiss case law, this procedure is sufficiently similar to confiscation mechanisms recognized under 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 rights (notably the right to be heard) are respected and ensure that the foreign decision is based on objective factual elements rather than mere suspicion.
Application to the Case
The appellant (A. Limited) argued that the preventive asset proceeding violated fundamental principles (presumption of innocence, ne bis in idem, nulla poena sine lege), especially since the criminal proceedings against B. had ended due to the statute of limitations. It also argued that the confiscation was disproportionate.
The Federal Criminal Court rejected these arguments. First, it emphasized that B. was not acquitted on the merits ("the act did not occur"), but rather that the criminal action was declared extinguished due to the statute of limitations. Italian law clearly distinguishes between these two outcomes. Extinction by statute of limitations does not invalidate the facts established in the parallel preventive proceeding.
Second, the Federal Criminal Court found that the Italian confiscation order was not based on mere suspicion, but on in-depth investigations by the Guardia di Finanza. These documented a sophisticated and long-standing criminal system (from 1996 to 2008 and beyond), B.'s "social danger," and the flagrant disproportion of his assets. The procedure respected the right to be heard through three judicial instances. The Court therefore ruled that the procedure, as applied in this case, was compatible with Swiss public policy.
Finally, regarding proportionality, the Federal Criminal Court noted that the total damage estimated by the Italian authorities exceeded 100 million euros. The confiscation of the disputed account, with a balance of approximately 16.7 million euros, therefore does not appear disproportionate.
Outcome
The Federal Criminal Court dismissed the appeal in its entirety. The OAG's decision ordering the transfer of assets to Italy is confirmed. Legal costs were charged to the appellant.
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