Federal Criminal Court, 10.09.2026, RR.2026.41
Facts
The Austrian Public Prosecutor's Office in Feldkirch is conducting a criminal investigation into A., a resident of Switzerland, for activities prohibited under Austrian law. He is accused of performing a Hitler salute in front of a barracks in Bregenz on July 20, 2024, while being filmed by a third party. On December 20, 2024, he allegedly played a National Socialist-themed ringtone on a train and declared that the "German people" or the "German Reich" would be reborn (consid. 5.1).
At the request of the Austrian authorities for mutual legal assistance, the St. Gallen authorities carried out a search, seized various National Socialist items, and analyzed the appellant's electronic data. After sorting the files, they authorized the transmission of the elements deemed relevant. A. appealed this decision, primarily challenging the dual criminality and the proportionality of the measures, particularly regarding the protection of his privacy (consid. 2.4, 4, 6.3-6.4).
Law
Mutual legal assistance between Switzerland and Austria is primarily governed by the European Convention on Mutual Assistance in Criminal Matters, its additional protocols, and the Schengen agreements. The Federal Act on International Mutual Assistance in Criminal Matters (IMAC) applies subsidiarily or in accordance with the principle of favor, provided that fundamental rights are respected (consid. 1.1-1.2).
The closing decision may be appealed to the Appeals Chamber of the Federal Criminal Court within thirty days. The right to appeal belongs to any person personally and directly affected by the assistance measures who has a legitimate interest in their protection, including the occupant of the searched premises and the accused whose hearing transcripts are being transmitted (consid. 2.1-2.4).
According toArt. 64 para. 1 IMAC, coercive measures require that the facts described in the request fulfill the objective elements of an offense punishable in Switzerland. A prima facie assessment is sufficient: the criminal classifications of the two states do not need to be identical, and the fulfillment of a single Swiss offense is sufficient (consid. 5.3.1-5.3.2).
TheArt. 261bis SCC prohibits, among other things, the public dissemination of ideologies aimed at systematically demeaning certain protected groups. The public nature of the act is recognized when the behavior occurs outside of a private circle based on personal relationships or trust (consid. 5.4.1-5.4.2).
Proportionality requires a sufficient connection between the transmitted evidence and the foreign investigation. However, the person concerned must precisely identify, during the execution procedure, any documents that are clearly irrelevant, or risk forfeiting their right to raise this grievance on appeal (consid. 6.2.1-6.2.2).
Application to the specific case
The filmed Hitler salute could constitute propaganda dissemination under Art. 261bis SCC, regardless of the presence of spectators during the recording. In any event, the playing of a National Socialist song on a train, accompanied by remarks evoking the rebirth of the Reich, is sufficient to establish dual criminality prima facie. Any potential lack of criminal intent will have to be examined by the Austrian authorities (consid. 5.5).
Regarding proportionality, the phone data was pre-sorted. Despite an express invitation, A. did not designate any specific files to be excluded from the transmission, limiting himself to a general claim regarding his private life and third-party data. He is therefore precluded from challenging their transmission on this basis (consid. 6.3).
The search and transmission of the seized items remain proportionate, as the supplementary Austrian request explicitly targeted any element capable of establishing National Socialist activity, beyond just the data initially mentioned (consid. 6.4).
Outcome
The Federal Criminal Court rejects the appeal in its entirety. Legal aid and the appointment of a public defender are denied, as the claims are devoid of any chance of success within the meaning of Art. 65 of the Federal Act on Administrative Procedure. The court costs, set at CHF 500, are charged to the appellant (consid. 7-9).