FCA, 06.16.2026, RR.2026.4
Facts
On May 30, 2023, the Andorran authorities requested mutual legal assistance from Switzerland in a money laundering investigation directed, in particular, against C. and D. According to the request, funds potentially of criminal origin were allegedly routed through a Panamanian company before being transferred to various Swiss accounts, including that of A. SA. A sum of CHF 66,131.60 had notably been credited to its account (consid. 1.1).
The Geneva Public Prosecutor's Office ordered the production of A. SA's banking documentation and subsequently, by closing order, its transmission to Andorra for the 2014-2017 period. A. SA appealed to the FCA, alleging a violation of its right to be heard and the principle of proportionality, arguing in particular that the transmission constituted a fishing expedition for evidence (consid. 1.3-2.1.1).
Law
The right to be heard, guaranteed byArt. 29 para. 2 of the Federal Constitution, includes the right to consult the file, to express one's views before a decision is rendered, and to obtain a sufficiently reasoned decision. A violation may, however, be remedied before an appellate authority with full power of review, particularly when the party is subsequently able to consult the documents and express their views effectively (consid. 2.2.1-2.2.3).
According to the principle of proportionality, mutual assistance must not exceed what is requested, but the request may be interpreted broadly. The determining criterion is that of potential utility: documents may be transmitted if they have a sufficient connection to the investigation and are likely to help the requesting State discover or verify facts, including those occurring before or after the period directly targeted (consid. 3.2.1).
In banking matters, extensive documentation may be provided when the foreign authority seeks to reconstruct the flow of funds of potentially criminal origin. Mutual assistance serves to collect both incriminating and exculpatory evidence (consid. 3.2.2-3.2.3).
Application to the specific case
Regarding the right to be heard, A. SA acknowledged having received all the documents at the time of the appeal and having been able to express its views before the FCA. Any potential violation had therefore been remedied. The reasoning of the Geneva Public Prosecutor's Office, although brief, also made it possible to understand that the transmission was based on the potential utility of the banking documents (consid. 2.3).
Regarding proportionality, the Andorran authority had expressly requested complete banking documentation to establish the origin, destination, and use of the funds. The connection was sufficient, as funds from the Panamanian company involved had been deposited into the account of A. SA. The transmission of documents up to 2017 therefore allowed for the verification of other transactions and did not constitute a fishing expedition (consid. 3.3)
A. SA also invoked trade secrets and data protection. However, the Federal Criminal Court held that simple commercial secrets do not enjoy the same protection as qualified professional secrets. In the balancing of interests, the interest in elucidating the money laundering facts pursued in Andorra outweighs the private interest in maintaining secrecy (consid. 3.4-3.5).
Outcome
The Federal Criminal Court dismissed the appeal and confirmed the transmission of the banking documents to Andorra. The legal costs of CHF 5,000 are charged to A. SA (consid. 4-5).