Facts
In August 2020, Ukraine submitted a request for mutual legal assistance to Switzerland in connection with an investigation into tax evasion, corruption, and money laundering. The investigation targets, among others, B., a high-ranking official, and his accomplices, who are suspected of having established a criminal organization to embezzle public funds and launder them through complex financial structures abroad.
The Ukrainian request sought to obtain banking documentation for an account held by A. Ltd (the appellant) at Bank F. in Switzerland. Following several requests for additional information by the Swiss authorities (FOJ and subsequently the OAG), the Office of the Attorney General of Switzerland (OAG) partially granted the request.
The OAG ordered Bank F. to produce the documents while prohibiting it from informing its client. On September 29, 2022, the OAG lifted this prohibition and set a deadline of October 10, 2022, for A. Ltd to come forward if it wished to participate in the proceedings. The bank informed the beneficial owner of A. Ltd of the investigation but allegedly failed to mention this deadline. A. Ltd did not come forward.
On January 20, 2025, the OAG issued a closing order approving the transmission of A. Ltd's banking documentation for the 2013-2014 period. A. Ltd filed an appeal against this decision with the Appeals Chamber of the Federal Criminal Court.
Law
The Court reiterates the principles governing international mutual legal assistance in criminal matters, in particular:
- Right to be heard (art. 29 para. 2 Cst.; art. 80m, 80n IMAC; art. 9 OIMAC): The right to be heard guarantees every party the opportunity to state their position before a decision is rendered against them (art. 29 para. 2 Cst.). In matters of mutual assistance, when an account holder is domiciled abroad and has not elected a domicile for service in Switzerland, they generally have no right to be notified of decisions (art. 80m IMAC; art. 9 OIMAC). The executing authority may, however, notify decisions to the bank holding the information, which is then required to inform its client (art. 80n IMAC). Any failure by the bank to provide this information is borne by the account holder and is not attributable to the executing authority.
- Formal requirements of the request (Art. 14 ECHR) : Requests for mutual assistance must include, among other things, the identity of the requesting authority, the purpose and grounds for the request, and a summary of the facts and the offense under investigation (Art. 14 ECHR). According to case law, the requesting state is not required to provide proof of the alleged facts; mere suspicion is sufficient. The requested authority will only deviate from the statement of facts if they appear manifestly erroneous or contradictory.
- Dual criminality and coercive measures (Art. 64 IMAC ) : When a request for mutual assistance involves coercive measures, these may only be ordered if the facts set out in the request objectively correspond to the constituent elements of an offense punishable under Swiss law (Art. 64 para. 1 IMAC). According to case law, for the production of documents ("minor assistance"), it is sufficient that the described facts fulfill the constituent elements of a single Swiss offense, particularly money laundering (Art. 305bis SCC). The existence of suspicious transactions, the use of complex financial structures, and the scale of the amounts involved constitute sufficient evidence in this regard.
- Potential utility, relevance, and the prohibition of "fishing expeditions" (Art. 63 para. 1 IMAC ; Art. 5 para. 2 Cst.) : Under Art. 63 para. 1 IMAC, mutual assistance is granted when the requested actions appear necessary for the foreign criminal proceedings. In accordance with the constitutional principle of proportionality (Art. 5 para. 2 Cst.) and established case law, the requesting authority has broad discretion regarding the potential utility of the requested evidence. Mutual assistance may only be refused if the requested measures are clearly unrelated to the offense under investigation and amount to an indiscriminate search for evidence ("fishing expedition").
Application to the specific case
The Complaints Chamber rejects all of the appellant's claims:
- Regarding the violation of the right to be heard : The OAG correctly notified its decisions to the bank, as the appellant has no domicile in Switzerland. Any failure by the bank to communicate the deadline for participating in the proceedings is not attributable to the OAG. The appellant must bear the consequences. Furthermore, the appellant was able to present all arguments during the appeal process, which served to remedy any potential irregularity.
- Regarding the formal defects of the request : Following several supplements, the Ukrainian authorities have sufficiently set out the facts and suspicions. They described a vast system of embezzlement and money laundering involving shell companies and international transfers, which is sufficient to justify the request for mutual assistance.
- Regarding dual criminality The facts described by Ukraine (criminal organization, massive embezzlement, use of numerous companies and accounts in several countries to conceal the origin of funds) objectively correspond to the constituent elements of money laundering (Art. 305bis of the Swiss Criminal Code) under Swiss law. The condition is therefore met.
- On proportionality : The appellant's account received a payment from a company (H. Inc) identified in the mutual assistance request as part of the money laundering scheme. The banking documentation is therefore potentially useful for enabling the Ukrainian authorities to understand the economic background of the criminal structure and to track financial flows. The transmission of the documents is therefore proportionate.
Outcome
The appeal is dismissed. The decision of the OAG to grant mutual assistance to Ukraine and to transmit the banking documentation of A. Ltd is upheld. The costs of the appeal proceedings, set at CHF 5,000, are to be borne by the appellant.
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