FPC, 03.10.2026, RR.2025.195, RR.2025.196
Facts
On March 22, 2025, the Public Prosecutor's Office of Trento (Italy) submitted a request for mutual legal assistance to Switzerland as part of a broad criminal investigation. The proceedings concern C. and other individuals for their alleged participation in a 'Ndrangheta-type mafia association, as well as for offenses involving illegal possession of weapons, money laundering, and tax fraud.
According to the Italian authorities, the criminal organization used a network of companies, nominees, and professionals to divert significant sums of money from the legal economy into the clan's coffers, notably through false invoices and fraudulent tax credits. In this context, the request for mutual assistance sought to obtain information and search several companies in Switzerland, including B. Sàrl.
The Office of the Attorney General of Switzerland (OAG), acting as the executing authority, accepted the request on March 24, 2025. The following day, a search was conducted at the premises of A. Sàrl, which hosts the registered offices of B. Sàrl and other targeted entities. Various documents were seized.
On November 7, 2025, by way of a closing decision, the OAG ordered the transmission of the seized documentation to the Italian authorities. A. Sàrl and B. Sàrl filed an appeal against this decision with the Appeals Chamber of the Federal Criminal Court, primarily requesting the annulment of the decision and, alternatively, the exclusion of certain documents deemed irrelevant.
Law
The Court first recalls the legal framework governing mutual legal assistance between Switzerland and Italy, which primarily includes the European Convention on Mutual Assistance in Criminal Matters (ECMA), additional protocols, a bilateral agreement, and the Federal Act on International Mutual Assistance in Criminal Matters (IMAC) on a subsidiary basis.
The Court then examines the admissibility conditions of the appeal, in particular the standing to appeal (art. 80h IMAC). This standing is granted to any person personally and directly affected by a mutual assistance measure. Case law specifies that the tenant of the searched premises (A. Sàrl) and the holder of the bank accounts whose documentation was seized (B. Sàrl) are directly affected and therefore have standing to appeal.
The Court addresses the three main grievances raised by the appellants:
- The right to be heard (art. 29 para. 2 Cst.): This formal guarantee requires the executing authority to give the person concerned the opportunity to express their views and participate in the sorting of documents before ordering their transmission. The authority must then provide reasons for its closing decision and may not delegate the selection of documents to foreign investigators. A potential violation may be remedied before the appellate authority if the latter has full power of review.
- The requirements of the mutual assistance request (art. 14 ECMA and 28 EIMP): A letter rogatory must contain a sufficient statement of facts to allow the requested State to verify that there are no grounds for exclusion. The requesting State does not need to prove that the offense was committed, but must present its suspicions in a coherent manner. The requested authority is, in principle, bound by this statement, except in cases of manifest errors or contradictions.
- The principle of proportionality and the prohibition of "fishing expeditions": The transmission of documents is only admissible if there is a link to the foreign proceedings. However, the assessment of the usefulness of evidence is primarily the responsibility of the requesting authority. The requested State only intervenes if the request is manifestly abusive or disproportionate. Case law has developed the criterion of potential utility: the handover of documents is only excluded for those that are manifestly devoid of any relevance to the investigation. This principle justifies a broad, or even exhaustive, transmission of documents, particularly in financial crime cases, in order to allow for the complete reconstruction of financial flows and the discovery of as-yet unknown facts. This approach is distinct from a "fishing expedition," which is a general and indeterminate search for evidence, conducted at random without prior concrete suspicion, and which is prohibited.
Application to the specific case
The Criminal Complaints Chamber applies these principles to the appellants' arguments and rejects them point by point:
- Regarding the right to be heard: The Court notes that the two appellant companies, represented by the same lawyer, had full access to the seized documentation and were able to comment on the relevance of each document before the closing decision. The OAG examined and responded to their arguments in its decision. The right to be heard was therefore respected.
- Regarding the sufficiency of the request: The Court finds that the Italian letter rogatory clearly and sufficiently sets out the alleged facts, the nature of the offenses (organized crime, money laundering), the role of the accused, and the links to the Swiss company B. Sàrl, which is suspected of being a corporate vehicle for illicit activities. The request contains concrete elements, including the transcript of a telephone conversation revealing the intention to transfer a company to Switzerland to shield it from Italian justice. The legal requirements are therefore satisfied.
- Regarding proportionality and "fishing expeditions": The Court considers that the transmission of all documentation is justified by the principle of potential utility. Given the nature of the offenses and the alleged role of B. Sàrl in a complex economic crime scheme, it is necessary for the Italian authorities to have all documents at their disposal to reconstruct the facts in their entirety. The request does not constitute a "fishing expedition" because it is based on concrete suspicions and targets specifically identified entities. Furthermore, the participation of foreign officials in the sorting process helped refine the selection and ensure the relevance of the documents. The subsidiary request to redact certain documents is also rejected, as their potential utility cannot be denied at this stage. It will be up to the Italian trial judge to assess the final relevance of the transmitted evidence.
Outcome
The Criminal Complaints Chamber rejects the appeal in its entirety. The closing decision of the Office of the Attorney General of Switzerland is confirmed, thereby authorizing the transmission of all seized documents to the Italian judicial authorities. The court costs, set at 6,000 francs, are to be borne jointly and severally by the appellant companies.
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