FPC, 04.02.2026, RR.2025.193
Facts
As part of a criminal investigation into breach of trust and money laundering involving several individuals, the National Anti-Corruption Bureau of Ukraine (NABU) submitted a request for mutual legal assistance to Switzerland. The request sought, among other things, to have A. interviewed as a witness.
The Office of the Attorney General of Switzerland (OAG), responsible for executing the request, summoned A. for an interview. Assisted by counsel, A. was questioned as a person called upon to provide information. During the interview, he exercised his right to remain silent and therefore provided no testimony on the merits of the case.
Following this, the OAG issued a closing order authorizing the transmission of the interview transcript to the Ukrainian authorities, which formally recorded his silence. A. appealed this decision to the Appeals Chamber of the Federal Criminal Court, requesting that the transmission be blocked.
Legal Principles
Cooperation in international mutual legal assistance, governed primarily by the European Convention on Mutual Assistance in Criminal Matters (ECMA) and the Federal Act on International Mutual Assistance in Criminal Matters (IMAC), is based on the principle of mutual trust and the broadest possible collaboration.
The determining criterion for the transmission of evidence is its potential utility to the investigation being conducted abroad. It is not the role of the Swiss authority to determine whether the evidence is decisive, but only whether it has an objective link to the alleged offense and could reasonably prove useful to the requesting authority.
Refusal to provide assistance is only an option in exceptional cases, such as if the requested documents are clearly unrelated to the investigation or if the request amounts to a fishing expedition. Assessing the actual utility of the information is primarily the responsibility of the authorities in the requesting state.
Application to the Case
The appellant argued that transmitting the transcript violated the principle of proportionality, as the document lacked any probative value, merely noting his silence. He also expressed concern that the document could be misused as part of a smear campaign.
The Appeals Chamber rejected this argument. It found that the Ukrainian request for assistance was sufficiently detailed and aimed at clarifying the appellant's potential role in a complex criminal scheme.
The court emphasized that, even in the absence of testimony on the merits, the transcript is not devoid of potential utility. On the contrary, it serves as formal evidence that confirms several elements relevant to the foreign proceedings:
- It proves that the requested investigative measure (the interview) was duly carried out by the Swiss authorities.
- It documents that the appellant's defense rights, including his right to remain silent, were fully respected during the proceedings.
- It formalizes the appellant's refusal to cooperate, information that may be legitimately used by Ukrainian prosecutors in their overall assessment of the evidence and their investigative strategy.
The Court also dismissed the appellant's alternative proposal to replace the transcript with a simple letter, ruling that such a step would still convey the same essential information: his identity and his refusal to testify. Finally, the argument that the Ukrainian investigation might be closed was deemed irrelevant as long as the request for assistance has not been formally withdrawn.
Outcome
The Appeals Chamber of the Federal Criminal Court has dismissed the appeal. It upheld the OAG's decision to authorize the transmission of the hearing transcript to the Ukrainian authorities, ruling that the document was potentially useful for the criminal proceedings underway in Ukraine. The court costs, amounting to CHF 5,000, were charged to the appellant.
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