TPF, 04.03.2026, RR.2026.3
Facts
The Hanau Public Prosecutor's Office (Germany) is conducting a criminal investigation for fraud against A., a German national. In this context, it submitted a request for mutual legal assistance to the Public Prosecutor's Office of the Canton of Bern to obtain documents relating to a bank account held by A. at Bank B. SA in Bern.
The Bernese Public Prosecutor's Office accepted the request and ordered the bank to produce the required documents, which it did. A. was informed and refused to consent to a simplified procedure. In a final decision, the Bernese Public Prosecutor's Office granted the mutual assistance and ordered the handover of the bank documents to the German authorities.
A. filed an appeal against this decision with the Appeals Chamber of the Federal Criminal Court. He requested that the decision be annulled and the request for mutual assistance be rejected. He denies any involvement in the fraud, claiming he was merely doing a favor for an acquaintance by lending them his bank account, without any fraudulent intent.
Law
The Appeals Chamber reiterates the legal framework applicable to mutual legal assistance between Switzerland and Germany. This is primarily governed by the European Convention on Mutual Assistance in Criminal Matters (ECMA) and the bilateral treaties that supplement it, as well as the Schengen Agreement. Subsidiarily, the Federal Act on International Mutual Assistance in Criminal Matters (IMAC) and its ordinance apply, notably by virtue of the principle of favor (application of the least restrictive standard).
The Court clarifies the conditions for the admissibility of an appeal. According toart. 80h let. b IMAC, the holder of a bank account is personally and directly affected by a measure aimed at collecting information on that account and therefore has standing to appeal.
The central legal point of the decision concerns the scope of the mutual assistance judge's power of review. According toart. 14 ECMA andart. 28 IMAC, the request for mutual assistance must contain a brief statement of the facts. Established case law does not require this statement to be complete, exhaustive, or free of contradictions, as the purpose of mutual assistance is precisely to clarify points that remain obscure.
The role of the mutual assistance judge is limited:
- They are bound by the statement of facts provided by the requesting authority, unless it contains manifest and immediately recognizable errors, omissions, or contradictions.
- They must not assess the evidence or rule on the guilt of the person being prosecuted.
- The appellant's arguments contesting the facts or presenting an alternative version (counter-allegations) pertain to the merits of the case and must be examined by the judge in the foreign criminal proceedings, not by the mutual assistance judge. The review is limited to verifying whether the facts described in the request are, prima facie, constitutive of an offense giving rise to mutual assistance (verification of dual criminality and proportionality).
Application to the specific case
The Appeals Chamber finds that the appellant, as the holder of the account in question, has standing to appeal and that the appeal was filed within the time limits.
It then examines the merits of the appeal in light of the aforementioned legal principles. The German mutual assistance request states that the injured party, E., transferred funds to the appellant A.'s account as payment for collection services promised by a company C. These services were never provided, contact was broken, and the funds were not returned. The German authorities suspect a "deceptive scheme" (website, correspondence, etc.) and fraudulent intent from the outset.
The Court finds that this statement of facts is sufficient to justify mutual assistance. The appellant's arguments, which contest his involvement and present his own version of the facts (a simple favor rendered), do not constitute manifest errors or contradictions that would allow the request's statement to be dismissed. By raising these points, the appellant misunderstands the nature of the mutual assistance procedure and the limited role of the Swiss judge. The latter cannot assess evidence or determine whether the appellant's version is more credible than the suspicions of the German authorities.
The Court concludes that the facts described in the request can easily be classified as fraud within the meaning ofArt. 146 of the Swiss Criminal Code, with the element of craftiness appearing to be met in view of the fraudulent maneuvers described. The request therefore complies with legal and conventional requirements. The Court adds that the information transmitted could also serve to exonerate the appellant in the German proceedings.
Outcome
The Appeals Chamber dismisses the appeal. It confirms the decision of the Public Prosecutor's Office of the Canton of Bern to grant mutual legal assistance to Germany and to order the handover of the requested bank documents. The court costs, set at 3,000 francs, are charged to the appellant.
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