International mutual legal assistance to Ukraine: Transfer of evidence, dual criminality, proportionality, and procedural guarantees

TPF, 11.02.2026, RR.2025.21

Facts

The National Anti-Corruption Bureau of Ukraine (NABU) is conducting a criminal investigation against unknown persons on suspicion of aggravated misappropriation of public funds, aggravated abuse of office, and aggravated money laundering. In this context, the Ukrainian authorities submitted a request for mutual legal assistance to Switzerland, seeking, among other things, a search of the premises of the Swiss company A. AG and the handover of seized evidence.

The Office of the Attorney General of Switzerland (OAG), responsible for execution, granted the request. A search was conducted at the premises of A. AG, during which physical documents and electronic data were seized. After sorting the items, the OAG issued a final decision ordering the transmission of 12 sealed items (documents and files) to the Ukrainian authorities.

The company A. AG filed an appeal against this decision with the Appeals Chamber of the Federal Criminal Court. It primarily requests the annulment of the decision and the rejection of the mutual assistance request. Alternatively, it requests the suspension of the proceedings until Ukraine provides a formal guarantee of compliance with the principle of specialty.

Law

The Appeals Chamber reiterates the applicable legal framework, primarily the European Convention on Mutual Assistance in Criminal Matters (ECMA) and, secondarily, the Federal Act on International Mutual Assistance in Criminal Matters (IMAC).

1. Requirements for the mutual assistance request: A request must contain a brief description of the facts to allow the requested State to examine the conditions for mutual assistance, in particular dual criminality and the principle of proportionality. Case law does not impose high requirements; the requesting State is not expected to set out the facts exhaustively and without contradiction. The mutual assistance judge is bound by the statement of facts in the request, unless it is marred by manifest errors, omissions, or contradictions. The judge does not assess evidence or examine guilt.
2. Dual criminality (art. 5 ECMA ; art. 64 IMAC): For coercive measures such as a search, the facts described in the request must be punishable under Swiss law. It is sufficient that the described conduct fulfills the objective elements of an offense under Swiss law, even if the legal classification differs.
3. Proportionality and prohibition of "fishing expeditions": Mutual assistance can only be refused if the requested documents clearly have no connection to the offense being prosecuted. The determining criterion is the potential relevance ("potentielle Erheblichkeit") of the information for the foreign investigation. It is incumbent upon the appellant to demonstrate clearly and precisely how the documents to be transmitted would be devoid of any relevance to the foreign proceedings.
4. Procedural guarantees (art. 2 IMAC): Mutual assistance is refused if the proceedings abroad do not respect the fundamental principles guaranteed by the ECHR. In principle, only the person accused in the foreign proceedings may invoke this article. A legal entity may rely on it if it is accused and its right to a fair trial (art. 6 ECHR) is threatened.
5. Principle of specialty (Art. 2 ECAA ; Art. 67 IMAC): Information obtained through mutual assistance may only be used for the investigation for which assistance was granted. Compliance with this principle is presumed under the principle of mutual trust between states, and a formal guarantee is only required if there is concrete evidence of non-compliance.

Application to the specific case

The Appeals Chamber examines and rejects all the grievances raised by the appellant, A. AG, one by one.

1. Regarding the statement of facts and dual criminality: The appellant disputes the veracity of the facts presented by the NABU, claiming they are normal business operations rather than criminal acts. The Court dismisses these arguments, reiterating that it is bound by the statement of facts in the request, which contains no manifest contradictions. The appellant's challenges pertain to the merits of the case, which must be decided by the Ukrainian courts. Based on the alleged facts (entering into a contract with the Ministry of Defense in violation of rules, overbilling, fictitious deliveries, suspicious financial flows), the Court confirms the analysis of the OAG. The described facts can be prima facie classified under Swiss law as:
   1. Unfaithful management of public interests (Art. 314 SCC), committed by Ukrainian officials.
   2. Fraud (Art. 146 SCC) and forgery of documents (Art. 251 and 317 SCC), in connection with allegedly fraudulent contracts and acceptance reports.
   3. Money laundering (Art. 305bis SCC), as funds of allegedly criminal origin were transferred from Ukraine to A. AG's account in Switzerland before being redistributed to other entities and individuals in the EU, which constitutes acts intended to conceal their origin and hinder their confiscation.
2. Regarding proportionality and fishing expeditions: The appellant argues that the request constitutes a fishing expedition and that the seized documents are irrelevant. The Court rejects this claim. The Ukrainian investigation aims to clarify financial flows and verify the reality of services provided under a public contract. The seized documents (contracts, invoices, accounting and banking records, correspondence) show a clear connection and potential utility for the investigation. The Court emphasizes that even exculpatory evidence is relevant. The appellant has failed to demonstrate how the documents would certainly be useless to the investigation. Banking or commercial secrecy does not constitute an obstacle to mutual assistance.
3. Regarding procedural defects (art. 2 IMAC): The appellant claims to be a de facto accused person deprived of her rights and alleges corruption among Ukrainian authorities. The Court notes that A. AG is not formally accused in the Ukrainian proceedings and therefore cannot invoke art. 2 IMAC. Furthermore, she has not demonstrated that she attempted to participate in the proceedings without success. Her general allegations regarding corruption in Ukraine are insufficient to establish a concrete and serious risk of a violation of her right to a fair trial.
4. Regarding the principle of specialty: The subsidiary request to obtain a formal guarantee is also rejected. The OAG has already included a specialty reservation in its decision. Under the principle of trust, there is no reason to doubt that Ukraine will honor this commitment. The appellant's fears regarding potential pressure on the family members of her beneficial owner are not covered by the scope of protection of the principle of specialty.

Outcome

The Appeals Chamber of the Federal Criminal Court rejects A. AG's appeal in its entirety. It upholds the decision of the Office of the Attorney General of Switzerland to authorize the transmission of the seized evidence to the Ukrainian authorities. Legal costs, set at 4,000 CHF, are to be borne by the appellant company.

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