TPF, 14.09.2026, RR.2026.32, RR.2026.33, RR.2026.34
Facts
Romanian authorities are investigating the executives of D. S.A., an insurance company that became insolvent in March 2023, on suspicion of fraudulent management, embezzlement, and the provision of false economic data. They specifically suspect fraudulent asset transfers, including a reinsurance transaction involving more than 1.5 billion RON, for the benefit of entities linked to the indirect majority shareholder. Romania is requesting Swiss mutual assistance to trace financial flows passing through an account held at Bank E. (recital 5.2).
Following information from the MROS revealing suspicious transactions, the Geneva Public Prosecutor's Office also ordered the transmission of bank documents for A. AD, B. AD, and C. AD. These companies are appealing the closing decision, citing a violation of the principle of specialty, fair trial guarantees, and the principle of proportionality (recitals 3, 4, and 5.2).
Law
Mutual assistance is governed primarily by the ECHR, its protocols, and the IMAC. Bank account holders have standing to appeal against the transmission of their documentation. The joinder of appeals presenting an identical factual complex is permissible for procedural economy (recitals 1.1-2.3).
According toart. 67 IMAC, the principle of specialty prohibits the use of transmitted information in civil or administrative proceedings without authorization from the FOJ. However, compliance with international commitments by the requesting State is presumed. Only a person exposed to a concrete risk of prohibited use may invoke this principle (recitals 3.1.1-3.1.3).
TheArt. 2 IMAC allows for the refusal of mutual assistance when the foreign proceeding disregards fundamental guarantees. Regarding the production of evidence, legal entities may exceptionally invoke this provision only if they are themselves defendants in the requesting State and are alleging a violation of their right to a fair trial (recitals 4.1.1-4.1.2).
The principle of proportionality, derived fromart. 63 IMAC, is based on the potential utility of the documents. The Swiss authority may transmit documents predating or postdating the facts under investigation, provided they have a sufficient connection to the investigation. It does not have to assess their definitive probative value (recitals 5.1.1-5.1.4).
Application to the specific case
The risk of the documents being used in ICSID arbitration proceedings remains hypothetical. As A. AD is not a party to these proceedings, its grievance is inadmissible. The closing decision expressly reserves the principle of specialty, and there is no evidence to suggest its violation by Romania (recitals 3.2-3.3).
The appellants, legal entities established in Bulgaria, are not defendants in the Romanian investigation, which is being conducted in rem. They therefore cannot invoke art. 2 IMAC. Compliance with fundamental rights by Romania is also presumed in light of its treaty obligations (recitals 4.2-4.3).
Finally, anti-money laundering alerts establish a sufficient connection between the disputed accounts and the suspicious transactions. Comprehensive transmission, even concerning periods exceeding that of the investigation, allows for the identification of potential fraudulent movements and the verification of both incriminating and exculpatory evidence. It thus respects proportionality (recitals 5.2-5.3).
Outcome
The three cases are joined and the appeals are dismissed to the extent they are admissible. The bank transmission is confirmed. A court fee of CHF 9,000 is charged to the appellants, with the balance of CHF 6,000 to be refunded (recitals 6-7.2).