FPC, 27.04.2026, RR.2026.20
Facts
In 2013, the Milan Public Prosecutor's Office requested mutual legal assistance from Switzerland in a criminal proceeding involving, among other things, market manipulation and fraudulent bankruptcy. In February 2014, the request was supplemented to include the freezing of bank account no. 1, held by the company E. S.p.A. at Bank A. in Lugano. The Office of the Attorney General of Switzerland (OAG) complied with this request and ordered the seizure of the assets.
Bank A. (the appellant) argued that it held a lien on this account, established in 2012 to secure credit lines granted to two other companies, F. S.r.l. and G. S.p.A. Between 2014 and 2019, its requests to lift the seizure in order to exercise its lien were systematically rejected by the OAG.
Following a long legal saga, including several appeals before the Appeals Chamber of the Federal Criminal Court (FPC) and the Federal Supreme Court, the OAG, by decision of January 19, 2026, ordered the handover of all seized assets to the Italian authorities. This decision was based on a 2024 Italian conviction for fraudulent bankruptcy, which ordered the confiscation of said assets. In its decision, the OAG also refused to recognize Bank A.'s standing as a party.
Bank A. filed an appeal against this decision, requesting the annulment of the handover order and the lifting of the seizure in its favor, claiming that it had acquired its lien rights in good faith.
Law
The Appeals Chamber reiterates the legal framework for mutual legal assistance between Switzerland and Italy, which is governed by international conventions and, subsidiarily, by the Federal Act on International Mutual Assistance in Criminal Matters (IMAC).
The Court first examines the standing of Bank A. to appeal (Art. 80h let. b IMAC). Although the bank is not the account holder, it asserts a limited real right (a lien) over the assets. Case law allows such rights holders to appeal to defend their claims. The Court therefore finds that the OAG was wrong to deny the bank party status, especially since this status had been recognized in previous proceedings without being challenged by the Federal Supreme Court.
The core of the dispute concerns the application ofArt. 74a IMAC, which governs the handover of objects or assets to a foreign state for the purpose of confiscation. Paragraph 4 of this article provides for exceptions to the handover, particularly when a person not involved in the offense demonstrates that they have acquired rights to these assets in Switzerland in good faith (let. c).
The Court defines the concept of "good faith" within the meaning of Art. 74a para. 4 let. c IMAC, which corresponds to that ofArt. 70 para. 2 of the Swiss Criminal Code. Good faith is excluded if the third party knew or could not have been unaware of the criminal origin of the assets. Case law requires knowledge of the facts justifying confiscation equivalent to eventual intent (dolus eventualis). The third party must have had serious indications of the criminal origin of the funds. A mere breach of a duty of care or information, or simple negligence, is not sufficient to exclude good faith. Furthermore, protection is strengthened when the third party has provided adequate consideration in exchange for the acquisition of its rights, which is the case for a bank granting credit against collateral.
Application to the specific case
The Court is analyzing whether Bank A. can be considered to have acquired its pledge rights in good faith. It relies on clarifications provided by the Federal Supreme Court in a previous ruling, even though that ruling had been declared inadmissible on formal grounds.
The Federal Criminal Court notes that the main argument used by the Office of the Attorney General (OAG) and in previous decisions to deny the bank's good faith was based on a breach of its duty of care: the bank should have investigated a guarantee transaction deemed unusual (E. S.p.A. guaranteeing loans for sister companies without apparent consideration) more thoroughly.
However, the Court rejects this approach. It emphasizes that, according to case law, a breach of a duty of care is not sufficient to establish bad faith. The determining factor is whether the bank, at the time the pledges were created in 2012, had serious indications of the existence of facts that would justify confiscation—in other words, knowledge equivalent to eventual intent (dolus eventualis).
The Court finds that the case file does not establish that Bank A. knew, or should have known, of a precarious financial situation at E. S.p.A. or of any criminal offense. In particular, the criminal proceedings for fraudulent bankruptcy did not even exist at the time; the initial request for mutual assistance concerned other offenses. The shortcomings alleged against the bank by the OAG (lack of rigor, speed in granting credit, etc.), even if proven, do not lead to the conclusion that it should have been aware of indications of bankruptcy offenses.
The Court concludes that Bank A. has sufficiently demonstrated its good faith at the time the pledges were created. Furthermore, it provided consideration (the granting of credit), which strengthens its position. Consequently, the conditions of Art. 74a para. 4 let. c of the IMAC are met, and the bank's claims to the seized assets are well-founded.
Outcome
The Appeals Chamber allows the appeal of Bank A.
It annuls the OAG's decision ordering the transfer of assets to Italy. However, before ordering the final release of the funds to the bank, the Court remands the case to the OAG. In accordance with the principle of good faith between states and international conventions, the OAG must inform the Italian authorities of the decision and grant them a 30-day period to present any grounds for maintaining the seizure. In the meantime, the seizure remains in effect.
No court costs are charged, and the OAG is ordered to pay Bank A. 3,000 francs in legal fees.
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