TPF, 08.09.2026, RR.2026.89
Facts
In a mutual legal assistance request dated September 18, 2021, the judicial authorities of Rome requested the seizure and restitution to Italy of an ancient fresco fragment, which had been illegally excavated in the Pompeii region and offered for sale on a Swiss website (Facts A).
The Central Public Prosecutor's Office of the Canton of Vaud (MP-VD) initiated proceedings and, on October 22, 2021, ordered the protective seizure of the archaeological item, which was being held at a gallery in Geneva (Facts B).
By decision dated April 7, 2023, the Italian judicial authorities ordered the confiscation of the fresco and its restitution to the Italian State (Facts D).
Following intervention by the Federal Office of Justice (FOJ), the Italian authorities notified a notice of confiscation directly in Switzerland to F., the de facto holder of the object, via registered mail on May 14, 2025, and email on May 26, 2025, including information on the legal remedies available before the Italian enforcement judge (Facts E and F, considerations 2.3 and 2.4).
By closing decision dated May 8, 2026, notified to the counsel for A. SA on July 2, 2026, the MP-VD lifted the seizure and ordered the final handover of the fresco to the Italian authorities (Facts H, K and consideration 1.5).
A. SA filed an appeal with the Appeals Chamber of the Federal Criminal Court on July 13, 2026, seeking the annulment of this handover (Facts L).
Law
Criminal mutual assistance between Switzerland and Italy is governed by the European Convention on Mutual Assistance in Criminal Matters (ECMA) and its additional protocols, supplemented by the Convention Implementing the Schengen Agreement (CISA), various multilateral and bilateral instruments on the protection of cultural property, and, subsidiarily, by the Federal Act on International Mutual Assistance in Criminal Matters (IMAC) (considerations 1.1 and 1.2).
Under Art. 74a paras. 1 and 3 IMAC, items seized for protective purposes may be handed over to the foreign authority for the purpose of confiscation or restitution to the rightful owner, generally upon a final and enforceable decision by the requesting state (consideration 2.1.1).
The executing authority enjoys broad discretion but must ensure that the foreign proceedings respect the minimum fundamental rights derived from the ECHR or the UN Covenant II and that the claims of good-faith third-party purchasers are preserved in accordance withArt. 74a para. 4 let. c IMAC (considerations 2.1.1 and 2.1.2).
Direct notification of procedural documents by mail to persons residing in Switzerland is lawful underArt. 16 of the Second Additional Protocol to the ECMA andArt. 52 CISA (consideration 2.7).
The principle of non-retroactivity of criminal laws does not apply to international mutual assistance, as the latter is governed by the standards in force at the time the authority issues its ruling (consideration 3).
Application to the specific case
The appellant has standing to appeal as the holder and principal depositor of the ancient work at the time of the seizure (consideration 1.4.2).
On the merits, the appellant argues that the Italian authorities violated F.'s right to be heard by notifying the confiscation notice directly to them, rather than through their appointed legal representative in Switzerland (recital 2).
The Court rejects this argument, as the appointment of F.'s Swiss counsel was unknown to the Italian magistrates at the time of their communication, and the documents previously transmitted did not contain this election of domicile (recital 2.5).
Furthermore, the letter from the Italian authorities dated May 14, 2025, clearly explained the status of the proceedings and mentioned the appropriate legal remedy before the enforcement judge, thereby respecting the requirements of the right to be heard (recital 2.6).
Notification by registered mail complies with Art. 52 CISA, and in the absence of evidence to the contrary, the legal fiction of notification upon the expiry of the postal holding period applies in full (recitals 2.7 and 2.8).
Finally, the rule of dual criminality is satisfied: the appellant cannot claim a lack of legal basis at the time of the fresco's acquisition in 1994, as the applicable law is that in force on the date the Swiss mutual assistance authority issues its ruling (recital 3).
Outcome
The Complaints Chamber dismisses the appeal (operative part 1, recital 4).
The decision of the Central Public Prosecutor's Office of the Canton of Vaud ordering the return of the archaeological fresco fragment to Italy is upheld (recitals 2.9 and 4).
Court costs of CHF 5,000 are charged to the appellant (operative part 2, recital 5).