FCA, 03.10.2026, RR.2025.202
Facts
As part of a criminal investigation into abuse of office and money laundering conducted in Ukraine by the National Anti-Corruption Bureau (NABU) against several individuals, the Ukrainian authorities submitted a request for mutual legal assistance to Switzerland on April 18, 2024. The request sought, in particular, to obtain business and banking documents relating to the Swiss company A. SA and its accounts at Bank G.
The Federal Office of Justice (FOJ) delegated the execution of the request to the Office of the Attorney General of Switzerland (OAG). The OAG accepted the request and ordered Bank G. to produce the required documentation, which the bank did in October and November 2024.
In May 2025, the OAG notified A. SA of the proceedings; the company refused simplified execution and submitted the requested business documents. After gaining access to the file and receiving an extension of the deadline, A. SA formally objected to the handover of the documents on October 13, 2025.
In a closing decision dated November 13, 2025, the OAG ordered the transmission of A. SA's banking and business documents to the Ukrainian authorities. A. SA filed an appeal against this decision with the Appeals Chamber of the Federal Criminal Court, requesting its annulment and a prohibition on the transmission of said documents.
Law
The Appeals Chamber reiterates the legal framework applicable to mutual assistance between Switzerland and Ukraine, governed primarily by the European Convention on Mutual Assistance in Criminal Matters (ECMA) and its protocols, supplemented by the Federal Act on International Mutual Assistance in Criminal Matters (IMAC) and its Ordinance (OIMAC).
The Court outlines the key legal principles raised by the appellant:
- Right to be heard (Art. 29 para. 2 Cst.): In matters of mutual assistance, this right guarantees the affected party the opportunity to comment on the request and to argue, in a concrete and reasoned manner, which documents should not be transmitted, particularly based on the principle of proportionality. The executing authority must grant a deadline for this purpose, which may be brief in accordance with the principle of speed (Art. 17a IMAC).
- Principle of proportionality: Mutual assistance may only be refused if the documents are manifestly unrelated to the foreign investigation (prohibition of "fishing expeditions"). The requested authority must ensure the "potential relevance" of the information. It is up to the affected party to demonstrate in a precise and detailed manner why certain documents would be of no interest to the investigation. Failing this, the party forfeits its right to invoke this grievance.
- Obstacles to mutual assistance (Art. 2 IMAC): Mutual assistance is refused if the proceedings abroad violate fundamental human rights principles (ECHR, UN Covenant II). According to established case law, a legal entity cannot invoke this article unless it is itself a defendant in the foreign proceedings, which then limits its grievance to a violation of the right to a fair trial (Art. 6 ECHR).
- Principle of specialty: The information provided may only be used for the purposes of the proceedings for which mutual assistance was granted. Compliance with this principle is presumed under the principle of mutual trust in international law, and an express reservation in the closing decision is standard practice.
Application to the specific case
The Complaints Chamber examines and rejects all of the appellant's, A. SA, grievances in turn.
- Regarding the violation of the right to be heard: The Court finds that A. SA's right to be heard was respected. The OAG granted it full access to the file and a total period of approximately seven weeks to submit its observations. This timeframe is deemed sufficient, given the principle of speed and the fact that the documents in question were either banking information concerning the company or documents it had produced itself.
- Regarding the alleged conclusion of the proceedings in Ukraine: A. SA argued that the NABU investigation was finished, rendering the request for mutual assistance moot. The Court dismisses this argument, noting that while a NABU press release mentions the end of the investigation, it does not prove the final closure of the criminal proceedings (which include the trial phase). Furthermore, the same press release indicates that investigations are ongoing to locate suspects and identify other participants. The Ukrainian authorities' interest in receiving the evidence therefore remains.
- Regarding the violation of the principle of proportionality: The Court finds that the documents are potentially relevant to the Ukrainian investigation. The request for mutual assistance describes a complex criminal scheme in which A. SA is suspected of having served as a vehicle for money laundering (receiving 264,000 EUR from a potentially illicit source) and of having participated in the creation of another company (N. SA) used in the fraudulent scheme. The transmission of all banking and commercial documents is therefore justified to trace the financial flows.
- Regarding obstacles to mutual assistance (Art. 2 IMAC) and data protection: The Court reiterates that A. SA is a legal entity that does not have the status of an accused party in the Ukrainian proceedings. Consequently, according to case law, it does not have standing to invoke a violation of its fundamental rights or deficiencies in the Ukrainian judicial system within the meaning of Art. 2 IMAC. Its concerns regarding corruption or insufficient data protection in Ukraine cannot therefore be examined.
- Regarding the violation of the principle of specialty: The Court rejects this concern, considering it unfounded. The OAG's decision contains the standard specialty reservation. In the absence of any concrete evidence of a past or future violation by Ukraine, the principle of trust between states prevails.
Outcome
The Complaints Chamber of the Federal Criminal Court rejects the appeal in its entirety. The decision of the Office of the Attorney General of Switzerland to order the handover of A. SA's banking and commercial documents to the Ukrainian authorities is upheld. The court costs, set at 5,000 francs, are charged to the appellant company.
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