TPF, 11.02.2026, RR.2025.19
Facts
The National Anti-Corruption Bureau of Ukraine (NABU) is conducting a criminal investigation against unknown persons on suspicion of aggravated embezzlement of public funds, aggravated abuse of power, and aggravated money laundering. The investigation concerns a contract worth several hundred million Ukrainian hryvnias concluded in 2018 between the Ukrainian Ministry of Defense and company D. for the delivery and installation of an IT hardware and software complex.
On June 18, 2024, the Ukrainian authorities submitted a request for mutual legal assistance to Switzerland, seeking, among other things, the transmission of banking documents relating to accounts held by company A. AG (based in Zurich) and its beneficial owner, B. (a Ukrainian national residing in Switzerland), at bank C.
The Office of the Attorney General of Switzerland (OAG), responsible for execution, accepted the request. After ordering bank C. to produce the required documents, the OAG issued a final decision on January 14, 2025, authorizing the handover of said documents to the Ukrainian authorities.
Company A. AG (the appellant) filed an appeal against this decision with the Appeals Chamber of the Federal Criminal Court. It requests that the decision be annulled and the request for assistance be rejected, or alternatively, that the proceedings be suspended until a formal guarantee of compliance with the principle of specialty is obtained from Ukraine.
Law
Criminal cooperation between Switzerland and Ukraine is governed primarily by the European Convention on Mutual Assistance in Criminal Matters (ECMA) and its protocols, supplemented by the Convention on Laundering (CETS 141) and, subsidiarily, by the Federal Act on International Mutual Assistance in Criminal Matters (IMAC).
A request for mutual assistance must contain a sufficient statement of facts to allow the requested authority to examine whether the conditions for assistance are met (art. 14 ECMA). The assisting authority is in principle bound by the statement of facts in the request, unless it contains manifest errors, omissions, or contradictions. It does not have to rule on the guilt of the person concerned or assess the evidence.
For the granting of coercive measures, such as the handover of banking documents, the principle of dual criminality must be respected (art. 5 ECMA ; art. 64 IMAC). The facts described in the request must be punishable under Swiss law if they had been committed in Switzerland. It is sufficient that the facts can be subsumed under a single provision of Swiss criminal law.
Mutual assistance measures must respect the principle of proportionality. A request must not constitute a "fishing expedition." There must be a sufficient nexus between the facts under investigation and the information requested. Case law requires "potential relevance" of the documents to the foreign investigation.
Mutual assistance may be refused if the proceedings abroad violate the fundamental principles of the European Convention on Human Rights (ECHR) or the UN Covenant II (Art. 2 IMAC). Regarding the handover of evidence, in principle, only the person accused in the foreign proceedings may invoke this clause.
Finally, the principle of specialty (Art. 2 ECAA ; Art. 67 IMAC) ensures that information obtained through mutual assistance will be used only for the investigation and trial of the offenses for which assistance was granted. Compliance with this principle is presumed under the principle of mutual trust between states.
Application to the specific case
The Appeals Chamber examines and rejects each of the appellant's grievances in turn.
- Regarding the statement of facts and dual criminality: The appellant disputes the veracity of the facts presented by the NABU, claiming that these were normal business operations and that the allegations are "fabricated" and contradictory. The Court reiterates that it is bound by the statement of facts in the request, as the appellant's arguments constitute a counter-narrative and do not demonstrate any manifest errors. The assessment of the evidence provided by the appellant (e.g., a license allegedly obtained before the date indicated in the request) falls under the jurisdiction of the Ukrainian judges. On this basis, the Court confirms that the described facts, at first glance, meet the requirements for several offenses under Swiss law:
- Unfaithful management of public interests (Art. 314 SCC): Officials from the Ministry of Defense allegedly entered into a contract detrimental to the interests of the state.
- Fraud (Art. 146 SCC), forgery of documents (Art. 251 SCC) and forgery of documents in the exercise of public office (Art. 317 SCC): Due to the use of fictitious contracts and acceptance reports containing inaccurate information (inflated prices, incorrect quantity of equipment).
- Money laundering (Art. 305bis SCC): The funds, potentially derived from the aforementioned offenses (predicate offenses classified as crimes), were transferred from Ukraine to the appellant's account in Switzerland and subsequently redistributed to other accounts within the European Union. These transnational transfers are considered capable of concealing the origin of the funds and hindering their confiscation.
- Regarding proportionality and the "fishing expedition" argument: The Court rejects the claim that the request constitutes a blind search for evidence. The requested banking documents are directly linked to the subject of the investigation, namely the tracking of allegedly illicit financial flows. They possess clear "potential relevance" for clarifying the path of the funds and identifying the ultimate beneficial owners. Banking or commercial secrecy does not constitute an obstacle to mutual legal assistance.
- Regarding procedural defects (art. 2 IMAC): The appellant argues that the Ukrainian proceedings are tainted by corruption and violate her rights to a fair trial (art. 6 ECHR). The Court dismisses this grievance, noting that the appellant is not formally charged in the Ukrainian proceedings and therefore cannot invoke art. 2 IMAC. Furthermore, even if she could, her general allegations regarding corruption in Ukraine are insufficient to demonstrate a concrete and serious risk of a violation of her fundamental rights in this specific case.
- Regarding the principle of specialty: The appellant requests a formal guarantee from Ukraine due to the risk of information leaks and pressure on the family of her beneficial owner. The Court considers the standard specialty clause, included in the OAG's decision, to be sufficient. In accordance with the principle of trust, there is no concrete reason to doubt that Ukraine will honor its commitments. The appellant's fears do not fall within the scope of protection of the principle of specialty, which is intended to prevent the use of evidence to prosecute other offenses.
Outcome
The Appeals Chamber of the Federal Criminal Court dismisses the appeal in its entirety. The decision of the Office of the Attorney General of Switzerland is upheld, and the handover of banking documents to the Ukrainian authorities is authorized. Legal costs, set at CHF 4,000, are to be borne by the appellant, A. AG.
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