TPF, 11.03.2026, RR.2025.201
Facts
The European Public Prosecutor's Office is conducting an investigation, initiated following a report from French customs, into a potential VAT and customs duty fraud scheme.
A. is accused of marketing luxury vehicles registered in Switzerland in France through their sole proprietorship and two limited companies, thereby evading taxes due upon import and registration in the European Union.
In this context, the European Public Prosecutor's Office sent a request for mutual legal assistance to Switzerland, specifically requesting searches and the seizure of digital storage media.
The Federal Office of Justice (FOJ) delegated the execution of this request to the Federal Office for Customs and Border Security (FOCBS).
On December 2, 2025, the FOCBS conducted a search of A.'s residence.
During this operation, A. requested that their mobile phone (iPhone 16 Pro) be sealed, which was carried out.
The FOCBS then filed a motion with the Appeals Chamber of the Federal Criminal Court (FCC) to lift the seals in order to examine the contents of the phone.
Invited by the Court to comment on this motion, A. (hereinafter: the opponent) did not file a response within the allotted time.
Law
The Appeals Chamber of the FCC has jurisdiction to rule on motions to lift seals filed by the FOCBS in the context of international mutual legal assistance proceedings, including those conducted in cooperation with the European Public Prosecutor's Office (recital 1.1, 1.2).
The procedure for sealing and unsealing in mutual assistance matters is governed by reference toart. 9 of the Federal Act on International Mutual Assistance in Criminal Matters (IMAC) 6-1 to art. 248 of the Criminal Procedure Code (CPC; (recital 1.4).
The judge ruling on the lifting of seals proceeds in two stages.
It first examines whether the search is admissible, i.e., whether there is sufficient suspicion of an offense and whether the seized documents are potentially useful to the investigation (potential relevance).
Secondly, it verifies whether legally protected secrets preclude the lifting of the seals (consid. 3.1).
In matters of mutual assistance, only qualified professional secrets (lawyer, doctor, etc.) and the protection of privacy (personal documents, correspondence) may be invoked.
Protection of privacy is granted after weighing the interests of personal protection against the public interest in criminal prosecution (consid. 4.2).
The person opposing the lifting of the seals has a duty to cooperate.
They must justify their opposition and specify exactly which documents are covered by a secret and for what reason.
If they fail to meet this obligation, the judge is not required to search for potential obstacles to the search on their own initiative (consid. 5).
Application to the specific case
The FOCBS request to lift the seals, filed within the 20-day legal deadline provided for in Art. 248 para. 3 CrimPC 6-3, is admissible (consid. 1.5).
The condition of potential relevance is met.
The facts described in the mutual assistance request (customs fraud, organized money laundering) are punishable under Swiss law, satisfying the requirement of dual criminality.
The phone of the opponent, the main suspect, was likely used as a professional tool for the criminal activity (renting vehicles via WhatsApp and Instagram).
Its examination is therefore potentially useful for the foreign investigation (consid. 3.2, 3.3).
Regarding the secrets to be protected, the opponent merely invoked the presence of "private and personal data" in a vague manner when the seals were applied.
He subsequently failed to respond to the Court's invitation and therefore did not fulfill his duty to provide justification and cooperate.
He did not demonstrate any overriding interest that would justify maintaining the seals to protect his privacy (consid. 4.1, 5).
In the absence of any demonstrated obstacle, there is no secret to protect that would preclude the lifting of the seals (consid. 5).
Outcome
The Complaints Chamber grants the FOCBS request and authorizes the lifting of the seals on the opponent's mobile phone.
The FOCBS may proceed with the unsealing and sorting of the data (Ruling 1, consid. 6.1).
The unsuccessful appellant is ordered to pay procedural costs of CHF 2,000 (Operative part 2, para. 6.2).