Mutual legal assistance with Peru: Diplomatic guarantees, recusal, and re-examination of the requesting state's situation

FPC, 19.01.2026, RR.2025.93, RR.2025.94

Facts

In August 2020, the Peruvian Public Prosecutor's Office requested mutual legal assistance from Switzerland in criminal proceedings for aggravated collusion and money laundering involving, among others, A. The request concerned the transmission of banking documents relating to accounts held by A. and the company B. SA.

The Office of the Attorney General of Switzerland (OAG) granted the request in April 2021. Upon appeal, the Appeals Chamber of the Federal Criminal Court (FPC), while dismissing the appeal, noted serious human rights violations in Peru. It classified the country in the second category of requesting states and conditioned the legal assistance on obtaining specific diplomatic guarantees (judgment RR.2021.98-99 of October 13, 2021). This decision was upheld by the Federal Supreme Court in September 2022.

The Federal Office of Justice (FOJ) transmitted these conditions to Peru. After initially objecting, arguing that such guarantees were part of an extradition procedure, the Peruvian Public Prosecutor's Office finally accepted them formally on March 12, 2024.

In the meantime, A. and B. SA opposed the transmission, citing a deterioration in the political and human rights situation in Peru. The FOJ then consulted the Federal Department of Foreign Affairs (FDFA), which concluded in January 2025 that the situation had not changed to the extent that the required guarantees needed to be modified.

On June 17, 2025, the FOJ issued a decision stating that the guarantees provided by Peru were satisfactory. A. and B. SA then filed an appeal against this decision with the FPC, as well as a motion for recusal targeting the FOJ staff members who had handled the case.

Law

The Appeals Chamber examined several distinct legal issues:

1. Jurisdiction regarding recusal (art. 10 and 12 IMAC, art. 10 APA): The Federal Act on International Mutual Assistance in Criminal Matters (IMAC) does not contain rules on recusal. Through the reference inart. 12 para. 1 IMAC, the Federal Act on Administrative Procedure (APA) applies. According toArt. 10 para. 2 APA, if a recusal request is contested and does not concern a member of a collegiate body, the supervisory authority is responsible for ruling on it.
2. Standing to appeal (Art. 80h IMAC): Only a person personally and directly affected by a mutual assistance measure who has a legitimate interest in its cancellation or modification has standing to appeal. A legal entity not charged in the foreign proceedings is only indirectly affected and therefore lacks such standing.
3. Right to be heard (Art. 29 para. 2 Cst.): This constitutional right imposes an obligation on the authority to provide reasons for its decisions. The reasoning is sufficient if it sets out, even briefly, the grounds that guided the authority, allowing the individual to understand the scope of the decision and to challenge it with full knowledge of the facts. A violation of the right to be heard may be remedied before an appellate authority with full power of review.
4. Deadline for providing guarantees (Art. 80p para. 2 IMAC): Case law considers the deadline granted to a foreign state to provide guarantees as a mere "instructional deadline." The Swiss authority has discretionary power and may extend it. Failure to comply with this deadline does not automatically lead to the rejection of the mutual assistance request.
5. Re-examination of a mutual assistance decision (Art. 2 IMAC, Art. 66 APA): A final and binding decision can only be challenged through extraordinary legal remedies such as revision or re-examination. Re-examination, based on new facts or a significant change in circumstances occurring after the decision, must be requested from the court of first instance. It should not be granted lightly and is not intended to correct a simple error of law or to obtain a new assessment of the facts.
6. Reliability of diplomatic guarantees: Case law has developed a tripartite classification of requesting states. For states in the second category, such as Peru, where risks of human rights violations exist, mutual assistance is possible subject to diplomatic guarantees. To assess the reliability of these guarantees, courts rely on a series of criteria (Othman case law of the ECtHR), including their precision, the authority issuing them, the existence of bilateral relations, and, above all, the possibility of verifying their compliance through a monitoring mechanism. The principle of good faith (pacta sunt servanda) governs relations between states.

Application to the specific case

The Appeals Chamber applied these principles to the facts of the case:

1. Regarding recusal: The recusal request concerns employees of the FOJ. As the FOJ has contested it, the authority to rule lies with its supervisory authority, namely the General Secretariat of the Federal Department of Justice and Police (FDJP). The Appeals Chamber therefore declares itself incompetent to address this matter.
2. Regarding standing to appeal: A., being personally targeted by the criminal proceedings in Peru, has standing to appeal. Conversely, B. SA, a legal entity not named as a defendant, is only indirectly affected. Its appeal is therefore deemed inadmissible.
3. Regarding the right to be heard: The Court rejects this claim. The FOJ's decision was sufficiently reasoned on the central issue, namely whether Peru's acceptance met the requirements. The appellant was able to develop a detailed argument, proving that he understood the decision and was able to challenge it effectively.
4. Regarding compliance with deadlines (Art. 80p para. 2 IMAC): The fact that Peru responded after the deadline and following several extensions is not decisive. As the deadline is an "instructional deadline," the FOJ acted within its discretionary power by granting additional time. Refusing mutual assistance on these formal grounds would be contrary to the spirit of international cooperation, especially since the appellant suffered no prejudice due to this delay.
5. Regarding the re-examination of the situation in Peru (Art. 2 IMAC): The Court notes that the appellant did not formally request a re-examination from the FOJ. Even if he had, the request would have been rejected. The FDFA's opinion confirmed that, despite the time elapsed, the situation in Peru has not deteriorated to the point of rendering the initial guarantees obsolete or moving the country into the third category (systematic refusal of mutual assistance). The appellant's arguments regarding the crisis in the Peruvian judicial system are deemed too general and do not demonstrate a concrete and personal risk of a serious violation of his rights.
6. Regarding the sufficiency of the guarantees: The Court finds that the guarantees provided by Peru are sufficient.
   1. Competence of the issuer: The Peruvian Public Prosecutor's Office, as the central authority for mutual assistance, was competent to commit the Peruvian State.
   2. Reliability: The Peruvian acceptance was clear, precise, and repeated the set conditions word for word. The fact that Peru is a signatory to international human rights conventions and the principle of good faith allow for the presumption that it will honor its commitments. Above all, the guarantees include a "monitoring" mechanism (the right to unannounced and unsupervised visits for Swiss representatives), which constitutes the primary tool for verifying compliance.

Outcome

The Appeals Chamber of the Federal Criminal Court has rendered the following decision:

1. The FOJ's request to establish the competence of the FCC to rule on the recusal motion is declared inadmissible.
2. The appeal by B. SA is declared inadmissible for lack of standing.
3. The appeal by A. is dismissed on the merits.
4. The costs of the appeal proceedings (CHF 6,000) are to be borne jointly and severally by the appellants.
5. An indemnity of CHF 500 is awarded to the appellants for the recusal proceedings, to be paid by the FOJ.

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