TPF, 16.02.2026, RR.2025.181
Facts
The Bergamo Public Prosecutor's Office (Italy) has submitted a request for mutual legal assistance to Switzerland in connection with criminal proceedings against A.________. The latter is suspected of several tax offenses, including undue compensation, issuing invoices for non-existent transactions, and fraudulent declaration.
The Italian authorities allege that he implemented a complex fraudulent scheme based on cross-invoicing between entities he controlled. This system was designed to artificially create deductible VAT and use non-existent tax credits to offset taxes due, generating an illicit profit estimated at 652,574.83 euros.
In this context, Italy requested that Switzerland seize a bank account held by A.________ at B.________ bank, up to the amount of 619,364.90 euros, and transmit the related banking documentation.
The Public Prosecutor's Office of the Canton of Ticino (MP-TI), acting as the executing authority, complied with the request. It ordered the seizure of the account and the production of the bank documents. In a closing decision dated October 20, 2025, the MP-TI confirmed the transmission of the documents and the maintenance of the seizure. A.________ appealed this decision to the Appeals Chamber of the Federal Criminal Court, requesting the annulment of the decision, the rejection of the request for assistance, and the immediate lifting of the seizure.
Law
The Appeals Chamber reiterates the legal framework governing mutual legal assistance between Switzerland and Italy, which includes the European Convention on Mutual Assistance in Criminal Matters (ECMA), the Italo-Swiss Agreement, the Convention Implementing the Schengen Agreement (CISA), and, subsidiarily, the Swiss Federal Act on International Mutual Assistance in Criminal Matters (IMAC).
The Court examines three main legal points raised by the appellant:
- Admissibility of the request and dual criminality: A request for mutual assistance must contain a sufficient statement of facts to allow the requested State to verify whether the conditions for assistance are met, without requiring the requesting State to prove the offense. The Swiss authority is in principle bound by the statement of facts, except in cases of manifest errors or contradictions. For coercive measures such as a seizure, the principle of dual criminality applies: the facts described in the request must be punishable under the laws of both States.
- Exception for tax offenses: In principle, Switzerland does not grant mutual assistance for tax offenses (tax evasion). However, a major exception exists for tax fraud, defined by Swiss law (art. 14 para. 2 DPA) as obtaining an illicit tax advantage through deceitful maneuvers (e.g., use of forged documents, staging, or a web of lies). For indirect taxes such as VAT, the Schengen Convention (art. 50 CISA) has relaxed this rule, making the distinction between evasion and fraud less relevant and facilitating mutual assistance.
- Principle of proportionality: This principle requires a sufficient nexus between the requested information and the foreign proceedings. It prohibits indeterminate exploratory searches ("fishing expeditions"). However, case law applies the criterion of potential utility: documents are transmitted if they are potentially relevant to the foreign investigation. The objective is to enable the requesting authority to reconstruct complex financial flows and understand the entire criminal scheme, which often justifies the transmission of the entirety of the banking documentation for a given period.
Application to the specific case
The Appeals Chamber systematically rejects all of the appellant's arguments:
- Regarding the clarity of the request and dual criminality: The Court finds that the Italian request is sufficiently detailed. It clearly describes the fraud mechanism (fictitious invoices, related companies) and the alleged offenses. This statement of facts allows for an adequate review. The Court then proceeds to examine dual criminality and concludes that the facts described by the Italian authorities—the use of false invoices to deceive tax authorities and obtain undue VAT deductions—would qualify under Swiss law, at a minimum, as forgery of documents (art. 251 SCC) and tax fraud (art. 14 para. 2 DPA). The condition of dual criminality is therefore clearly met.
- Regarding the proportionality of the document handover: The Court considers that the transmission of banking documentation is not a "fishing expedition." On the contrary, it is justified by the criterion of potential utility. In a complex tax fraud case, it is essential for Italian investigators to have an overview of financial flows to identify the origin and destination of funds, as well as the precise role of the appellant and related entities. The Court notes that the Italian authorities have already identified suspicious transfers of 521,000 euros to the account in question, which reinforces the relevance of the documentation.
- Regarding the proportionality of the seizure: The appellant claimed that the seized amount was excessive because it did not take into account repayments already made. The Court rejects this argument. It finds that the amount seized in Switzerland (619,364.90 euros) corresponds precisely to the total alleged damage (652,574.83 euros) minus the sum already seized in Italy (33,209.93 euros). The amount is therefore mathematically justified in light of the request. The Court specifies that it is not the role of the Swiss mutual assistance authority to verify the reality of repayments or to rule on the merits of the case. This task will fall to the Italian judge, who will take all elements into account, including any potential restitution, when deciding on a possible confiscation. As long as Italy does not withdraw its request, the seizure must be maintained to ensure the execution of a future confiscation decision.
Outcome
The Appeals Chamber of the Federal Criminal Court rejects the appeal in its entirety. Consequently, the decision of the Public Prosecutor's Office of the Canton of Ticino is upheld. The banking documentation will be transmitted to the Italian authorities, and the seizure on A.________'s bank account, in the amount of 619,364.90 euros, is maintained. The court costs, set at 6,000 francs, are charged to the appellant.
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