International mutual legal assistance to Ukraine: Transmission of evidence, dual criminality, and the principle of specialty

TPF, 11.02.2026, RR.2025.61

Facts

The National Anti-Corruption Bureau of Ukraine (NABU) is conducting a criminal investigation against unknown persons on suspicion of aggravated embezzlement of public funds, aggravated abuse of office, and aggravated money laundering. The case concerns a multi-million contract for the supply of computer hardware and software between the Ukrainian Ministry of Defense and a local company, C.

In this context, the Ukrainian authorities submitted a request for mutual legal assistance to Switzerland, specifically seeking the questioning of A., a Swiss resident and beneficial owner of company B. AG, based in Zurich. The latter allegedly acted as a partner to company C. for the acquisition of the computer equipment.

The Office of the Attorney General of Switzerland (OAG), acting as the executing authority, summoned A. for questioning as a person providing information. During the hearing, A. exercised his right to remain silent but submitted a detailed written statement outlining his version of the events regarding the project in Ukraine.

In its closing decision, the OAG ordered the transmission of the transcript of A.'s hearing and his written statement to the Ukrainian authorities. A. (the appellant) filed an appeal against this decision with the Appeals Chamber of the Federal Criminal Court, requesting that the decision be annulled and the request for assistance be rejected. Alternatively, he requested that Switzerland require Ukraine to provide a formal guarantee that the principle of specialty will be respected.

Law

The Court recalls that mutual legal assistance between Switzerland and Ukraine is primarily governed by the European Convention on Mutual Assistance in Criminal Matters (ECMA) and its additional protocols, supplemented by the Federal Act on International Mutual Assistance in Criminal Matters (IMAC).

1. Requirements for the request for assistance: In accordance with Art. 14 ECMA, a request must contain a brief summary of the facts. Swiss case law does not impose high requirements; the requesting state is not expected to present the facts exhaustively and without the slightest contradiction, as the purpose of mutual assistance is precisely to clarify points that remain obscure. The Swiss authority is bound by the statement of facts in the request, unless it is marred by manifest errors, omissions, or contradictions. The judge overseeing the assistance is not required to examine questions of fact or guilt, nor to assess the evidence.
2. Condition of dual criminality (Art. 5 ECMA and Art. 64 IMAC): For the granting of coercive measures, the facts described in the request must be punishable under both the law of the requesting state and Swiss law. It is sufficient that the facts, had they been committed in Switzerland, would fulfill the objective elements of an offense under Swiss law.
3. Principle of proportionality and prohibition of "fishing expeditions": Mutual assistance can only be refused if the requested documents are clearly unrelated to the offense under investigation. The determining criterion is that of "potential relevance": documents that could be useful to the investigation, including exculpatory evidence, must be transmitted.
4. Procedural guarantees (Art. 2 IMAC): Mutual assistance is refused if the foreign proceedings do not respect the fundamental principles of the European Convention on Human Rights (ECHR). According to established case law, only individuals whose fundamental rights are directly threatened (generally the defendant located in the requesting state) may invoke this article.
5. Principle of specialty (Art. 2 ECAA and 67 IMAC): Information obtained through mutual assistance may only be used for the investigation and trial of the offenses for which assistance was granted. Under the principle of trust between states, compliance with this rule is presumed, and a formal guarantee is only required if there is concrete evidence of non-compliance.

Application to the specific case

The Complaints Chamber examined and rejected the appellant's grievances one by one.

1. Disputing the facts and sufficiency of the request: The appellant challenged in detail the facts presented by Ukraine (date of license acquisition, maintenance guarantees, number of hard drives delivered, etc.), claiming that these were normal commercial operations and that the request was "fabricated." The Court ruled that these arguments constituted a defense on the merits that should be presented before the Ukrainian courts. The statement of facts in the request was neither manifestly false nor contradictory and allowed the Swiss authorities to examine the conditions for mutual assistance. The request was therefore not a "fishing expedition."
2. Verification of dual criminality: The Court confirmed that the described facts, analyzed under Swiss law, could prima facie constitute several offenses:
   1. Unfaithful management of public interests (Art. 314 SCC): Ukrainian officials allegedly concluded a contract detrimental to the state's interests with a company that did not meet the required conditions.
   2. Fraud (Art. 146 SCC) and Forgery of documents (Art. 251 and 317 SCC): The conclusion of allegedly fictitious contracts and the preparation of acceptance reports containing inaccurate information (regarding the quantity and price of equipment) reportedly defrauded the State and caused financial loss.
   3. Money laundering (Art. 305bis SCC): Funds of potentially criminal origin were transferred from Ukraine to the account of the Swiss company B. AG, and subsequently redistributed to various accounts held by companies and individuals within the European Union, including the appellant's personal account. The Court found that these transnational transfers, involving multiple parties, were designed to conceal the origin of the funds and hinder their confiscation, thereby fulfilling the criteria for money laundering.
3. Proportionality: The Court ruled that there was a clear connection between the documents ordered for transmission (the hearing transcript and A.'s written statement) and the Ukrainian investigation. As the beneficial owner of B. AG, which played a central role in the financial transactions, A.'s statements are potentially relevant to the investigation, whether for or against the accused.
4. Violation of procedural rights: The appellant argued that he was effectively an accused person and that his rights guaranteed byArt. 6 ECHR were being violated in Ukraine. The Court rejected this argument, firstly because the appellant, not being formally charged and residing in Switzerland, lacked the standing to invoke Art. 2 IMAC. Furthermore, he failed to provide any concrete evidence demonstrating that he had attempted in vain to assert his rights within the Ukrainian proceedings.
5. Principle of specialty: The appellant requested a formal guarantee due to alleged corruption in Ukraine and the risk of information leaks that could endanger his family. The Court reiterated that the principle of mutual trust applies. The appellant's fears, while noted, did not constitute concrete evidence that Ukraine would use the information to prosecute offenses other than those covered by the request. The standard specialty reservation included in the OAG's decision was deemed sufficient.

Outcome

The Appeals Chamber of the Federal Criminal Court dismissed the appeal in its entirety. It upheld the decision of the Office of the Attorney General of Switzerland to authorize the transmission of the hearing transcript and the appellant's written statement to the Ukrainian authorities. The legal costs were charged to the appellant.

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