- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 10 PRA
- Art. 10a PRA
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- Art. 12 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 58 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 40 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
FEDERAL ACT ON DATA PROTECTION
1 Art. 80h EIMP, contained in the third part of the EIMP (art. 63 et seq. EIMP), governs the right to appeal against other acts of mutual assistance.
2 Art. 80h EIMP applies to the examination of admissibility by the Complaints Court of the Federal Criminal Court. In the event of an appeal to the Federal Supreme Court, art. 89 FSCA will apply, although this difference has no practical impact.
3 Insofar as international mutual assistance in criminal matters is an administrative procedure, the AP applies by analogy (art. 12 para. 1 EIMP), unless otherwise stipulated. However, as the right to appeal is already governed by art. 80h EIMP, the latter provision takes precedence over art. 48 AP as lex specialis.
4 In the case of mutual assistance in criminal matters with the USA, art. 17a LTEJUS applies as lex specialis to art. 80h EIMP. However, these two provisions are identically worded and therefore have the same scope.
5 The present contribution will begin with a brief presentation of the historical background to art. 80h EIMP (ch. II), before examining in greater detail its conditions of application (ch. III.A and B), followed by the related rules set out in art. 9a OEIMP, the provision which gives concrete form to these conditions (ch. III.C). It concludes with a review of case law on standing to appeal in the event of the transmission of (i) minutes (section III.D.1), (ii) documents from Swiss proceedings (section III.D.2), (iii) documents held by Swiss authorities other than criminal authorities (section III.D.3), and finally (iv) evidence obtained by means of secret surveillance measures (section III.D.4).
II. History of art. 80h EIMP
6 Art. 80h EIMP was introduced on February 1, 1997 as part of a major revision of the law.
7 The legislator had identified weaknesses in the system in place at the time, considering in particular the excessive length of enforcement procedures, which was attributable to the multiplicity of means of appeal that prevailed as a result of Switzerland's federalist structure. He also noted the abusive use of legal remedies for dilatory purposes by people often falsely claiming to be rightful claimants.
8 The aim of this revision was to simplify and accelerate mutual assistance procedures, by limiting the right to appeal to those directly and personally affected by a mutual assistance measure.
9 The previous alternative condition, whereby the person whose rights of defense could be affected in the foreign criminal proceedings was also entitled to appeal, has been abolished. The legislator considered that the defendant should not be more protected than other parties, especially as he could still act in criminal proceedings in the requesting state.
10 Proposals to abolish the right of appeal altogether were rejected as insufficiently respectful of fundamental rights.
11 The revised text of the EIMP contains numerous redundancies. This is illustrated, for example, by art. 21 para. 3 EIMP, which governs the accused's right to appeal, and art. 80h let. b EIMP, which reiterates exactly the same principles both for the person concerned and for all persons affected by other acts of mutual assistance (in particular, the administration and handing over of evidence and the seizure of objects or valuables with a view to confiscation - cf. art. 63 EIMP). The legislator voluntarily adopted this style, considering that repetition was preferable to incessant cross-referencing in a law as complex as the EIMP.
12 This being the case, the right to appeal against other acts of mutual assistance will be examined exclusively from the angle of art. 80h EIMP, the scope of which is identical to that of art. 21 para. 3 EIMP.
III. Standing to appeal
A. Federal Office (letter a)
13 Art. 80h let. a EIMP confers the right to appeal on "the Federal Office", by which is meant the Federal Office of Justice.
14 This Office is thus free to appeal against closure decisions by cantonal and federal enforcement authorities, without any other conditions having to be met. The purpose of this system is to enable it to exercise its role as supervisory authority in matters of mutual assistance in criminal matters.
15 The intervention of this authority may, where appropriate, serve the interests of third parties where this is necessary for the correct application of the EIMP and international conventions. In practice, however, the Federal Office of Justice will tend to promote broad cooperation with foreign countries, and may act in the interests of the requesting state, which is not in principle a party to the enforcement proceedings.
B. Legal standing of other persons (letter b)
16 Strictly speaking, art. 80h let. b EIMP requires the double condition (i) of being personally and directly affected by a mutual assistance measure, and (ii) of having an interest worthy of protection in the annulment or modification of that measure.
17 The term "mutual assistance measure" covers all measures taken by the Swiss authorities in execution of a letter rogatory, i.e. primarily the obtaining of evidence (if necessary by means of coercive measures) and its delivery to the requesting state.
18 The person prosecuted abroad may appeal under the same conditions (cf. also art. 21 para. 3 EIMP). The mere fact that the transmission of information could have prejudicial consequences for the accused is therefore not sufficient to confer standing to appeal.
19 Standing to appeal is examined ex officio by the Federal Criminal Court, which is not bound by any more favorable position that may have been granted by the executing authority.
20 The interest on which standing is based may be legal or factual. However, the appellant must be affected more than anyone else, or than the general public, by an important interest resulting from his situation in relation to the disputed object.
21 An interest worthy of protection exists when the appellant's de facto or de jure situation can be influenced by the outcome of the case. The admission of the appeal must provide the appellant with an economic, material or ideal advantage. In the absence of an own interest worthy of protection, there is no need to consider appeals lodged in place of a third party.
22 The phrase "and" which links the two conditions of art. 80h let. b EIMP could imply that they are cumulative. However, the interpretation of this provision in case law is not so clear-cut.
23 In fact, the Federal Court considers that anyone who is directly and personally affected by a mutual assistance measure already has standing to bring an action, particularly in the case of a coercive measure - in which case the condition of an interest worthy of protection has no additional independent scope. Despite this jurisprudence, a worthy interest will still be required in certain cases, notably with regard to the witness and the delivery of his minutes.
24 On the other hand, there are certain constellations in which the condition of an interest worthy of protection will be the only decisive one according to case law, the fact of being affected by a mutual assistance measure having in these cases no significance whatsoever.
25 These diverse and sometimes discordant solutions - which make the matter difficult to grasp - have their origin primarily in the concretization of art. 80h let. b EIMP by art. 9a OEIMP. This provision specifies who is entitled to appeal in the event of information on a bank account (let. a), a search (let. b) or measures concerning a motor vehicle (let. c). As these are the most frequent constellations, the importance of this provision is considerable in practice.
26 Secondly, the jurisprudence in application of art. 80h let. b EIMP is the result of an arbitration intended by the legislator between the imperatives linked, on the one hand, to the rapid execution of requests for mutual assistance (which must not be complicated by over-extensive means of appeal) and, on the other hand, the need for sufficient legal protection of those who find themselves in a close relationship with the mutual assistance measure.
27 Sometimes, too strict an interpretation of art. 80h let. b EIMP can lead to the inadmissible consequence that no person has, even theoretically, standing to appeal. To remedy this situation and guarantee the existence of an effective legal remedy, jurisprudence has established exceptions, depending on the circumstances of the case, which may sometimes deviate from the wording of art. 80h let. b EIMP.
28 As this contribution is primarily intended to be practical, we will not dwell on the general scope of art. 80h let. b EIMP, as this may vary from case to case. Instead, we will set out below the concrete solutions developed by case law in the many constellations that have arisen in recent years. We will begin by examining the rules set out in art. 9a OEIMP - the most frequent cases in practice - followed by those which are not covered by this provision and which emerge from the practice of the courts.
C. Cases covered by art. 9a OEIMP
1. In the case of information on a bank account (art. 9a let. a OEIMP)
29 According to art. 9a let. a OEIMP, the holder of a bank account is deemed to be personally and directly affected when information about the account is administered.
30 Art. 9a let. a OEIMP applies above all to information obtained from banks.
31 On the other hand, when documentation is obtained from other agents, such as a trustee or a lawyer, the Federal Court excludes the application of art. 9a let. a OEIMP, preferring that of art. 9a let. b OEIMP, according to which the person who has immediate possession of the thing seized is entitled to appeal. In such cases, the account holder concerned no longer enjoys the right to appeal that would have been available if the measure had been taken against a bank. This position is unconvincing, particularly when the documents seized involve a genuine transmission of banking documentation within the meaning of art. 9a let. a OEIMP (see below for further details, n. 60).
32 The following comments apply both when the appellant contests the handing over of banking information and when the related accounts are blocked.
a. The account holder
33 Art. 9a let. a OEIMP grants the right to appeal first and foremost to the account holder when information on a bank account is administered.
34 The term "account holder" refers to the person identified as such in the bank documentation issued. A person who opens an account under a false name or pseudonym, in particular by presenting false identity documents to the bank, cannot claim to be the concealed account holder. However, the Federal Supreme Court has made an exception for those who provide proof that they are in fact the account holder, and has clarified the reasons for concealing their true identity.
35 Where several people are joint account holders, standing to appeal should be conferred on each of them individually.
36 In the event of the account holder's death, the right of recourse must be exercised on behalf of all the heirs forming the community of heirs, if necessary by a common representative, an executor or an administrator of the estate. The community of heirs as such has no legal standing. However, there are two exceptions to this rule, based on civil law jurisprudence. An heir may take recourse alone (i) in an emergency to temporarily safeguard the interests of the hereditary community, or (ii) when the heirship is in the grip of an internal dispute involving all its members.
37 Where the account is held by a trustee in the name of a trust (e.g. by the formula "X as trustee of the Trust Y"), standing to bring an action is conferred on the trustee, as the trust as such has no legal standing. The appellant must therefore ensure that his appeal is lodged in the name of the trustee and not of the trust, on pain of inadmissibility. A draft bill to introduce the institution of the trust into the Code of Obligations is currently being examined by the legislator, but should not, a priori, impact current case law insofar as, under the new legislation, the trust will continue to be represented in court by the trustee (art. 529g para. 2 AP-CO).
b. The bank
38 The question arises as to whether the bank should not also be entitled to appeal on the basis of the general principles developed by case law, insofar as it submits, in concrete terms, to a measure of constraint.
39 This was the case before art. 80h let. b EIMP and 9a let. a OEIMP came into force on February 1, 1997. In the meantime, the Swiss Federal Court has analyzed these two provisions and found that the legislator deliberately intended to exclude the bank from the circle of appellants in favor of the account holder. Consequently, the bank cannot intervene in the mutual assistance procedure when it merely provides information on its customers, even if its employees are heard to provide additional explanations.
40 On the other hand, if the measure affects the bank in the conduct of its own internal affairs, in particular when it is itself the holder of the account concerned (e.g. a transit account), it will be granted standing to appeal on this basis. Particularly decisive is the fact that the bank is seeking to protect its own business secrets and not the mere banking secrecy of its customer. In this context, jurisprudence holds that the bank is not entitled to make a claim when the documents to be transmitted are those relating to the opening of the customer's account, account statements, debit and credit advices, correspondence between the bank and its customer, or the customer's telephone or visit notes, insofar as they mainly concern the latter's business. On the other hand, when the documents to be transmitted enable verification of compliance with the bank's legal obligations, such as clarification of the origin of funds or the customer profile in connection with KYC, the bank must be granted standing to appeal.
c. Beneficial owner
41 According to established case law, the beneficial owner of the account in question does not have standing within the meaning of art. 80h let. b EIMP.
42 Nevertheless, the Federal Court has ruled that when the company holding the account is dissolved, sufficient legal protection requires that, exceptionally, the beneficial owner be granted standing to bring an action, provided that he can prove the dissolution and that he is the beneficiary of the liquidation proceeds. This exception also applies to the dissolution of a foundation or trust.
43 Insofar as dissolution entails the end of the legal entity's legal personality and capacity to sue and be sued, its beneficial owner must act in a personal capacity and not on behalf of the legal entity, failing which his or her action will be declared (manifestly) inadmissible.
44 In order to ensure that the dissolution of a company does indeed result in the definitive termination of its legal personality, the court may need to examine the foreign law applicable to the company under art. 154 of the LDIP.
45 The condition that the company has been liquidated in favor of the beneficiary is essential in determining the admissibility of the appeal. The proceeds of liquidation are understood as the balance of the company's dissolution, after all its assets and liabilities have been set off against each other.
46 This condition means that, in certain situations - notably when the entitled party is not the beneficiary of the liquidation proceeds, or is unable to prove it - no one will be able to defend the rights of the dissolved company. In the Federal Court's view, this consequence is not sufficient to overturn its case law, which it considers to have the merit of establishing continuity between the liquidated company and its beneficiary.
47 The fact that the proceeds of the liquidation were not transferred to the beneficial owner himself, but to another company that he also owns, does not prevent him from acting personally under this exception, provided that he can show that he is the beneficial owner of this second company. The decisive factor is not precisely who received the liquidation proceeds, but rather who ultimately benefited from them.
48 Demonstrating that the beneficial owner is indeed the beneficiary of the liquidation proceeds can prove complicated in practice. Ideally, it should be done by means of official documents, in particular the deed of dissolution mentioning the identity of the beneficiary of the liquidation. However, jurisprudence accepts that this can be demonstrated by means of other documents.
49 Such other documents may include payment orders or transfer notices issued at the time of the company's liquidation, demonstrating that the company's accounts have been settled in favor of the beneficial owner. Nevertheless, it is essential to demonstrate that the assets deposited in the balanced accounts are the sole assets of the dissolved company, on pain of inadmissibility. The Federal Court sees no excessive formalism in requiring such (negative) proof from the appellant. In any event, the transfer and closure of the account must take place as part of the dissolution of the company, failing which the assets transferred cannot be considered as liquidation proceeds within the meaning of the case law.
50 The following documents have been deemed insufficient by case law to provide such proof:
Form A: while this document is sufficient to demonstrate who is the beneficial owner of the account, it is silent on the identity of the beneficiary of the liquidation proceeds of the dissolved company, two notions which must imperatively be distinguished from each other.
An attestation from the directors, the joint beneficial owners, the representative of the liquidated company or even the appellant himself, establishing the identity of the beneficiary of the liquidation: the courts consider that the probative value of such documents is insufficient, as they only constitute allegations.
Documents intended to demonstrate that the company had no assets: the Federal Court seems to require the production of a document attesting to the identity of the beneficiary of the liquidation, even if the company holds no assets. In our view, this approach is excessively formalistic, insofar as the non-existence of assets (insofar as it can be demonstrated) means that there is, in fact, no beneficiary of the liquidation. In its earlier case law, however, the Federal Criminal Court seemed to accept a hypothetical reasoning aimed at determining to whom the proceeds of the liquidation would probably have been paid if there had been any.
An extract from a foreign commercial register stating that the company had been struck off due to unpaid fees.
Various documents demonstrating that the transactions carried out during the company's existence were always in favor of and/or on behalf of its beneficial owner: while these documents may attest to who ultimately benefited from the transactions carried out during the company's lifetime, they do not demonstrate that the proceeds of the liquidation benefited this same person.
51 Lastly, the beneficial owner cannot rely on this exception when it constitutes an abuse of rights. This would be the case of a liquidation whose purpose is to hinder the mutual assistance procedure. Case law has already recognized an abuse in a situation where five companies prosecuted abroad were all suddenly dissolved less than a year after the criminal proceedings were instituted, for no apparent economic reason, or in the case of a foundation dissolved in the course of proceedings, whose assets were immediately used to create a second, identical foundation.
52 In addition to the exception for the liquidation of the company, it may be asked whether another exception should be established in favour of the beneficial owner when the company has not been dissolved but is objectively unable to act for reasons beyond its control. Case law does not seem to rule this out (in this case, the Federal Criminal Court had examined the existence of a state measure objectively paralyzing the organs of a trustee, which it nevertheless considered insufficiently proven).
53 In any event, the mere fact that the company is inactive does not open the way to recourse for its beneficial owner.
d. Third parties
54 Third parties are in principle excluded from the circle of appellants. The mere fact that the published documentation contains the name of a third party, the number of an account held by the latter, or even extracts from the said account or other information concerning him or her, is not sufficient to confer the right to lodge an appeal, as he or she is not directly affected by the assistance measure. This rule also applies to a person who only has power of attorney over the account concerned. However, it is often the case that the person entitled to appeal, in defending his own interests, finds himself simultaneously protecting those of third parties excluded from the procedure.
2. Searches and sequestration (art. 9a let. b OEIMP)
55 Under art. 9a let. b OEIMP, the owner or tenant is deemed to be personally and directly affected in the event of a search.
56 In this sense, the person - natural or legal - who must personally submit to the search, or to a sequestration of objects or values on this occasion, has the right to appeal. This provision is thus linked to immediate possession (de facto power of disposition). In other words, only those whose possession is directly disturbed during the search or seizure are entitled to appeal.
57 The right of recourse is not limited solely to the owner or tenant of the premises housing the objects seized, but may extend to the sub-tenant, usufructuary or beneficiary of any other similar right of habitation.
58 These developments apply not only to seized paper documents, but also to electronic data. Thus, only the person who has immediate possession of the premises is entitled to appeal against the sequestration of a hard disk, a server, an e-mail account, a laptop or a USB key.
59 The appellant will also be entitled to challenge the transmission of documents drawn up during the search, such as the search report or photos taken during the search.
60 As indicated above (cf. n. 31), in the event of seizure of bank documents from an agent other than a bank (trustee, lawyer, asset manager), in principle only the latter has standing to appeal, to the exclusion of the account holder. This difference in treatment compared to a deposit order addressed to a bank is allegedly linked to the fact that the bank does not necessarily intervene in the management of its customer's account, unlike other agents. This presumption does not seem convincing to us, as it is not uncommon for a bank to also have a management mandate. It is therefore difficult to see why the account holder should be entitled to appeal when the documentation is seized from his bank with a management mandate, but not when it is seized from his asset manager - the two situations being very similar. In our opinion, the account holder's right to appeal should be recognized when the documentation seized involves a genuine transmission of bank documents within the meaning of art. 9a let. a OEIMP, as in the case law on hearings concerning bank accounts (see below, n. 72). In the past, a decision of the Federal Criminal Court adopted this position, considering that art. 9a let. a OEIMP is a lex specialis in relation to art. 9a let. b OEIMP.
61 On the basis of the principle of immediate possession, case law has denied standing to the following persons:
The person concerned by documents seized from third parties, even if they contain information about him or her or could reveal his or her identity.
The author of documents seized from a third party.
The owner of the sequestered object as defined in civil law. For example, the companion of the owner of a searched apartment containing electronic data belonging to her is not entitled to make a claim, even if he has been staying there a few days a month for the past fifteen years. Similarly, a person who temporarily leaves a suitcase in his friend's apartment, which is subsequently searched, will be denied the right to appeal. The existence of a possible mandate between the third party who has had to submit to the measure and the principal does not change this principle, even if this contractual relationship allows the latter to have access at all times to the objects targeted by the measure. Similarly, only the carrier or warehouseman is entitled to take action against the receiver of goods held with them, to the exclusion of the depositor.
A "letter-box" company, i.e. a company whose registered office is with a third party to whom it is bound by a contract of agency rather than a lease, insofar as it does not have effective control of the premises.
To the sole shareholder or director of the company whose premises have been searched, since only the latter is entitled to take legal action.
An employee whose e-mail account has been seized by his or her employer, who alone is entitled to take legal action. The same applies if the employer records and stores the employee's telephone calls, provided that the employee has been informed and has consented to this as part of the employment relationship.
A remote user of electronic data stored on a server located on premises belonging to a third-party company, even if he or she has exclusive access. According to case law, electronic data is not autonomous in its own right, and exists only because it is stored on a physical medium. This means that only those who have effective control over the medium in question are entitled to use it.
A company that provides its customers with fixed offices as co-working space. In this case, only the customer - considered as a sub-tenant of the office allocated to him on a fixed basis - is entitled to appeal.
62 If the sequestration of objects takes place without a search (e.g. during a search or an arrest), the holder who has immediate possession of the object is entitled to appeal on the basis of art. 9a let. b OEIMP.
63 In the case of a request to publish, case law considers this measure to be equivalent to a search, so that standing to appeal is conferred on the person who hands over the documentation to the enforcement authority.
3. Measures concerning a motor vehicle (art. 9a let. c OEIMP)
64 According to art. 9a let. c OEIMP, in the case of measures concerning a motor vehicle, in particular a car or an aircraft, the holder is entitled to appeal.
65 The status of holder is not the same as that of possessor or owner. It is determined by the circumstances of the case. In particular, a keeper is someone who effectively and durably possesses the power to dispose of the vehicle, and who uses it or has it used at his own expense or in his own interest. Thus, the driver of the vehicle at the time of the search, even if he is not the owner, is entitled to make a claim. The status of owner is thus not a legal status as such, but a factual circumstance.
66 This definition corresponds to art. 78 al. 1 OAC.
D. Other cases
67 In the case of the transmission of a hearing report, standing to appeal will depend on the status of the person heard in the foreign proceedings. This will apply not only to the transmission of the minutes as such, but also to any audiovisual recordings of the hearing, the police report summarizing the hearing, or the documents handed over by the person heard in his or her capacity as holder of these documents.
a. The accused
68 If the person interviewed is the accused, he or she is entitled to appeal against the transmission of his or her report without restriction.
b. The witness
69 When a person is questioned as a witness, he or she may only object to the use of his or her testimony for the benefit of a foreign criminal authority if he or she has revealed information concerning himself or herself (in particular education, family situation, financial situation, professional activities, relations with the persons involved, acts performed on behalf of the accused) or if he or she can invoke a right to refuse to testify under Swiss law.
c. The person called to give information
70 When a person is heard as a person called to provide information insofar as he or she could, without being himself or herself warned at this stage, potentially be warned at a later date, this person is entitled to appeal against the transmission of his or her minutes without restriction, as is the case for the accused. On the other hand, if she is heard as a person called to give information for other reasons, it will be necessary to examine whether her status is more akin to that of a potential defendant or witness in order to judge her standing to appeal.
d. Third parties
71 A third party, i.e. a person who is not himself heard, is not entitled to appeal, even if he is personally affected by the statements recorded in the minutes, even if he is the person being prosecuted in the requesting state.
72 An exception to this principle exists when the statements transcribed in the official report can be assimilated to a transmission of banking documents for which the holder would ordinarily have been entitled to appeal under Art. 9a let. a OEIMP. In such cases, the cardholder may lodge an appeal against the delivery of the aforementioned minutes, even though he or she is not the author of the statements transcribed therein. On the other hand, if the minutes contain no information on the accounts in question, or only information already contained in the request for mutual assistance, the third party in question, as the account holder, has no right of appeal.
e. Legal entities
73 Difficulties may arise when a legal entity's standing to appeal against the delivery of the minutes of the hearing of one of its organs or employees has to be judged. In principle, only the person who has been heard is entitled to lodge an appeal against the delivery of the minutes, which is why the company concerned is not entitled to intervene, even if its director or employee makes statements about its business affairs or organization. However, when a legal entity is itself accused abroad and its body is questioned as such about the facts concerning it, it is appropriate, in our view, to assume that it has formally been questioned itself, so that it must be recognized as having the same right to appeal as a natural person. A decision of the Federal Criminal Court, albeit an isolated one, has already gone in this direction.
2. Submission of documents from Swiss proceedings
74 Sometimes, the information requested by the requesting State has already been obtained by the requested State in the course of its own national criminal proceedings. In such cases, the requested state need only include these documents in the mutual assistance procedure in order to execute the letter rogatory.
75 In this eventuality, case law in principle holds that the person concerned is only indirectly affected by the mutual assistance measure and therefore has no standing to appeal.
76 However, this approach leads to the unacceptable solution that no one is entitled to challenge the mutual assistance. For this reason, this principle has been tempered by case law.
77 One of the exceptions enshrined in case law is where the executing authority intends to transmit bank documentation or records containing information on bank accounts. In both of these cases, the account holder concerned, even if not heard, will be entitled to appeal insofar as the transmission of such evidence entails the transmission of banking information within the meaning of art. 9a let. a OEIMP. This primarily concerns documents obtained from a bank, but also MROS communications or analysis reports on banking documentation drawn up by the prosecuting authority.
78 A further exception is made when the appellant has been heard in separate Swiss proceedings, but the facts about which he is being questioned are closely related to the request for mutual assistance. This "close link" allows the person concerned to be admitted as a party to the proceedings, even if the coercive measure was ordered solely as part of the domestic criminal proceedings. In particular, jurisprudence accepted the existence of a close link between domestic proceedings and mutual assistance proceedings when the former was triggered by the exploitation of information obtained from the letter rogatory. With this in mind, the courts used to attach decisive importance to the temporal criterion, denying the interested party standing to appeal when the gathering of evidence in the domestic proceedings had taken place prior to the request for mutual assistance. However, this criterion has recently been abandoned. The concept of a close link is now based solely on the similarity of the acts prosecuted in Switzerland and in the requesting state.
79 This being the case, in order for the right to appeal to be recognized in the case of the transmission of minutes, the witness, the defendant or the person called upon to provide information must also have given an account of their own situation (personal, family, financial and professional). In such a situation, although the minutes are already in the hands of the executing authority and do not involve any coercive measures for the execution of the request for mutual assistance, the appellant may object to their transmission in the same way as the person questioned in the course of the mutual assistance procedure, in accordance with the developments set out above (cf. above N. 67 ff).
80 Although the concept of "close link" has been developed mainly in the context of the transmission of records of hearings, it also applies to the transmission of other evidence initially administered in domestic criminal proceedings.
81 Thus, the owner or lessee within the meaning of art. 9a let. b OEIMP will be entitled to appeal against the handing over of documentation seized during a search of his premises, even if this took place in domestic criminal proceedings. The latter will also be entitled to challenge the handing over of documents drawn up by the prosecuting authority in connection with the search, such as reports of seized items or photographs taken during the search.
82 The same applies to anyone whose telephone conversations have been monitored as part of internal criminal proceedings. He will thus have the right to appeal against the handing over of the report transcribing his conversations, which is placed in the mutual assistance file.
3. Documents held by other authorities
83 In some cases, the accused has already been convicted of other offences by the Swiss authorities. In such cases, he is not entitled to appeal against the surrender of the judgment concerning him to the requesting state, as he is only indirectly affected by this measure (insofar as the document has not been seized from him, in which case art. 9a let. b OEIMP would apply).
84 The personal details contained in the judgment to be forwarded, the tactical interest in the foreign state not being aware of the judgment, or the fact that the conviction dates back several years, so that it no longer appears in the criminal record of the person concerned, are not sufficient to grant the latter standing to appeal.
85 The same applies to documents issued by authorities such as the tax authorities, the commercial register, the debt enforcement and bankruptcy office or the land register.
86 In the case of documents issued by FINMA, the former case law of the Swiss Federal Supreme Court (issued at the time of the Swiss Federal Banking Commission) accepted that the bank concerned had standing to appeal insofar as its internal affairs were directly affected.
87 In our view, this should also be the case today. The opposite position would lead to the unacceptable situation that no one, even theoretically, would have the possibility of opposing mutual assistance, whereas jurisprudence strives precisely to systematically guarantee an effective legal remedy. This is all the more important in this constellation as FINMA files contain particularly confidential information on the internal workings of the financial intermediary concerned, obtained as a rule under threat of sanctions in the event of non-cooperation. In any event, in our opinion, the financial intermediary should be granted standing to appeal when the proceedings conducted by FINMA relate to the same complex of facts as those which are the subject of the mutual assistance proceedings, following the example of the case law handed down in connection with the transmission of evidence administered upstream in internal criminal proceedings (see above N 77).
4. Persons who have been subject to secret surveillance measures
88 Sometimes, the execution of a letter rogatory requires the implementation of secret surveillance measures.
89 In the case of interception of telecommunications, only persons whose correspondence has been subject to surveillance without their knowledge, and whose transcript of the contents has been transmitted to the requesting state, are entitled to appeal. This means that the owner of the telephone connection (e.g. a legal entity) as well as the actual user of the connection (e.g. an employee) are entitled to lodge a complaint. The same applies to the monitoring of e-mail correspondence. In any case, the appellant will only be entitled to appeal against the transcript of his own communications, not those of third parties.
90 On the other hand, a person who uses a telephone connection registered under a false name (unless he can explain why) or who misuses a third party's connection in order to conceal his identity will not be entitled to appeal.
91 In the case of undercover agents, the right to appeal is conferred on the person who has been directly exposed to the said agents, even if the surveillance report mentions this only marginally.
92 While the right to appeal is formally governed by art. 80h EIMP, its scope has been largely shaped by art. 9a OEIMP and case law. The latter, in particular, has developed tailor-made solutions year after year to ensure that individuals have an effective means of appeal.
93 The two conditions laid down in the aforementioned provision, i.e. (i) being personally and directly affected by a mutual assistance measure, and (ii) having an interest worthy of protection in having the measure annulled or modified, sometimes lose their meaning, with the result that this is an area of law that is difficult to grasp.
94 The developments set out in this contribution are intended to clarify this area. There can be no doubt, however, that the ever-increasing and evolving body of case law will provide further clarification in this area.
Clara Poglia and Michaël Jakubowski are respectively partner and senior associate at Schellenberg Wittmer SA. The terms used to designate individuals in this contribution apply to both men and women.
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