FPC, 30.03.2026, RR.2025.56
Facts
As part of a wide-ranging criminal investigation into money laundering and participation in a criminal organization, the Belgian authorities submitted a request for mutual legal assistance to Switzerland. The investigation targets, among others, A. Inc. (the appellant), a manufacturer of encrypted phones (cryptophones), and the operator of the C. platform. The Belgian request, which was supplemented on several occasions, sought the preservation and handover of data located on servers used by the C. network and hosted in Switzerland by D. GmbH. (Facts)
The Public Prosecutor's Office III of the Canton of Zurich (the respondent) accepted the request and proceeded with the seizure and sorting of the data. The appellant was authorized to participate in this sorting process. However, in its closing decision of March 4, 2025, the respondent refused to recognize A. Inc.'s status as a party, while noting that the host, D. GmbH, had consented to the handover of the data. A. Inc. appealed this decision to the Appeals Chamber of the Federal Criminal Court, requesting that its status as a party be recognized.
Law
The Court reiterates the legal framework for international mutual assistance in criminal matters, governed by the IMAC and the OIMAC. Standing to appeal, and by extension the status of a party (Art. 80b para. 1 IMAC), is defined restrictively by Art. 80h let. b IMAC. It belongs only to the person who is "personally and directly affected" by a mutual assistance measure and who has a legitimate interest in its cancellation.
According to the consistent case law of the Federal Supreme Court, this condition requires a "specific relationship of proximity" to the coercive measure. A purely indirect impact is insufficient. For measures involving the seizure of documents or data storage media, only the physical holder (custodian and possessor) is considered directly affected. The owner, author, or "data controller" who does not have physical possession of the medium is considered only indirectly affected and therefore lacks standing to appeal. This rule applies to both physical documents and electronic data stored on servers or other media.
In a landmark ruling (FPC 2020 129), confirmed by the Federal Supreme Court, the Court held that standing to appeal is determined by physical possession of the data medium, not by potential remote access, even if exclusive. A change in this jurisprudence is only justified by serious reasons, such as a better understanding of the law or a change in circumstances, which are not present in this case.
Application to the specific case
The Court applies its jurisprudence to the present case. The data in question, although belonging to the appellant, were stored on servers located on the premises of the host, D. GmbH. It was therefore D. GmbH that had physical and immediate possession of the data media and was directly affected by the seizure measure. The appellant, which only had remote access, is only indirectly affected. The court rejects the analogy with the collection of banking information (Art. 9a let. a OIMAC), which constitutes a specific exception based on banking secrecy and is not applicable in this case. The case falls under the application by analogy of the rules on searches (Art. 9a let. b OIMAC), where possession is the determining factor.
The Court also rejects the appellant's other arguments. The fact of having been involved in the proceedings (notably during the data sorting) does not confer party status based on the principle of good faith, in the absence of a formal assurance from the authority. (c. 4.4.5) There is no gap in legal protection (Art. 29a Cst.), as the host provider D. GmbH, as the directly affected party, had the opportunity to challenge the measure, even though it chose not to do so and consented to the transfer. Finally, the guarantees of the ECHR (notably Art. 6) do not apply directly to the mutual assistance procedure, and the appellant will be able to assert its rights, particularly regarding the right to privacy (Art. 8 ECHR), before the Belgian courts.
The court concludes that the appellant does not have the "specific close connection" required by case law to be considered personally and directly affected by the mutual assistance measure.
Outcome
The appeal is dismissed. The Complaints Chamber confirms the decision of the Public Prosecutor's Office III of the Canton of Zurich not to recognize A. Inc.'s status as a party in the mutual legal assistance proceedings. The court costs, set at 5,000 francs, are to be borne by the appellant.
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