TPF, 03.30.2026, RR.2026.25
Facts
In the context of criminal proceedings for money laundering conducted in Montenegro, the Montenegrin authorities submitted a request for mutual legal assistance to Switzerland on January 30, 2025. On January 27, 2026, the Office of the Attorney General of Switzerland (OAG) issued a closure order, authorizing the handover of evidence to the requesting state. On March 6, 2026, A., represented by his lawyer, filed an appeal against this decision with the Appeals Chamber of the Federal Criminal Court. By letter dated March 9, 2026, the Court granted the appellant a deadline to pay an advance on costs of CHF 5,000 and, crucially, to produce a valid power of attorney confirming his lawyer's authority. This correspondence included an explicit warning that failure to produce the required documents within the deadline would result in the appeal being declared inadmissible.
Although the appellant obtained an extension of the deadline for the payment of the advance on costs and settled it on March 19, 2026, no power of attorney had been transmitted to the Court as of the date of the judgment.
Law
The Appeals Chamber reiterates its jurisdiction to rule on appeals against closure orders in matters of international mutual legal assistance (art. 37 para. 2 let. a LOAP in conjunction with art. 25 para. 1 and 80e para. 1 IMAC).
According toart. 52 of the Federal Act on Administrative Procedure (APA), applicable by reference, an appeal brief must, among other things, bear the signature of the appellant or their representative. If this requirement is not met, the appellate authority shall grant a short deadline to rectify the filing, warning the party that if the defect (such as the absence of a signature or proof of the representative's authority) is not corrected, the appeal will be declared inadmissible.
The Court emphasizes that the principle of speed (art. 17a IMAC) is of particular importance in matters of mutual legal assistance. This gives rise to a legitimate expectation that the appellant will file a complete appeal from the outset of the proceedings, including documentation proving the lawyer's authority to represent them.
Finally, pursuant toArt. 63 para. 1 APA, procedural costs are charged to the unsuccessful party, including a party whose appeal is declared inadmissible. Art. 63 para. 5 APA specifically provides that costs may be charged to a representative who has acted without authority. The amount of the court fee is determined based on the scope and complexity of the case (Art. 73 para. 2 LOAP).
Application to the specific case
The Court notes that the appeal was filed by A.'s lawyer. However, despite an express request from the Court and a clear warning regarding the consequences of an omission, the lawyer never produced the power of attorney required to justify their authority to represent.
The Federal Criminal Court considers that the failure to comply with this fundamental formal requirement, after an opportunity to rectify the situation was provided, cannot be ignored. The importance of the principle of procedural speed in this area justifies a strict application of procedural rules. The absence of a power of attorney is equivalent to the absence of a valid signature from the appellant, which constitutes an irremediable formal defect in the circumstances of this case. Consequently, the appeal must be declared inadmissible.
Regarding costs, the Court finds that the lawyer acted without valid authority to represent, notwithstanding the invitation to rectify the situation. In accordance with case law (BGE 147 IV 526 consid. 4), it is therefore justified to personally charge them with the procedural costs in the amount of CHF 1,000.
Outcome
The Appeals Chamber of the Federal Criminal Court has issued the following decisions:
- The appeal is declared inadmissible.
- A court fee of CHF 1,000 is charged personally to the lawyer, Me Paolo Tamagni.
- The Federal Criminal Court treasury shall refund the advance on costs of CHF 5,000 paid by the appellant, A.
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