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Mutual legal assistance: what can an account holder do when bank records are about to be sent abroad?

In short

The account holder may take part in the proceedings, inspect the file and appeal against the closing decision to the Federal Criminal Court within thirty days. Alternatively, the holder may consent to simplified execution, which ends the proceedings.

Who may act

Standing to appeal belongs to the person personally and directly affected by the assistance measure. For bank records, that is the account holder, not the beneficial owner or the originator of a transfer appearing in the statements.

What can be challenged

Objections concern the conditions for assistance: dual criminality, proportionality of the transmission in light of the foreign investigation, procedural guarantees in the requesting State, the speciality principle. Sorting the documents is often the main issue: anything not useful to the foreign investigation should not be transmitted.

An appeal lies only against the closing decision and against certain interim decisions causing immediate and irreparable harm. A further appeal to the Federal Supreme Court is available only in particularly important cases.

This note is for general information only. It does not constitute legal advice and is no substitute for the review of a specific situation.

Legal questions

  1. Asset Recovery and EnforcementCan assets in Switzerland be frozen before a judgment has been obtained?Yes. The attachment provided for by the Debt Enforcement Act allows a creditor to have assets located in Switzerland frozen without prior notice to the debtor. The creditor need only show, on a prima facie basis, the claim, a statutory ground for attachment and the existence of the assets concerned.
  2. Asset Recovery and EnforcementHow can a foreign judgment be enforced in Switzerland?The judgment must first be recognised and declared enforceable in Switzerland. For a decision rendered in a State bound by the Lugano Convention, review is limited and the procedure swift; for other States, the Swiss Private International Law Act applies and its requirements are stricter.
  3. General and White-Collar Criminal LawCan a company be criminally convicted in Switzerland?Yes. Article 102 of the Swiss Criminal Code allows the company itself to be fined up to five million francs. For bribery, money laundering and terrorist financing, it is liable independently of any individual if its organisation failed to prevent the offence.
All questions