Mutual assistance with Italy: from the convention of 1959 to the agreement of 1998

The legal framework

The cooperation between the prosecutors of Lugano, Bellinzona, Milan and Palermo rested on three layers of law. The first was the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, which Switzerland and Italy had both ratified and which obliged the parties to afford each other "the widest measure of mutual assistance" in criminal proceedings.¹ The second was Swiss domestic law. The Federal Act on International Mutual Assistance in Criminal Matters (IMAC) of 20 March 1981, in force since 1983, regulated how Swiss authorities executed foreign requests, which coercive measures they could take and which remedies were open to the persons concerned.² The third layer, which came only at the end of the period, was a bilateral agreement between Switzerland and Italy supplementing the European Convention, concluded on 10 September 1998.³

Under the IMAC, a request is inadmissible if the proceedings concern an offence that appears to be aimed at reducing fiscal duties or taxes or that violates regulations on currency, trade or economic policy. Assistance is nevertheless possible for tax fraud (Abgabebetrug), that is, tax evasion committed by means of forged or false documents.⁴ Coercive measures such as the seizure of bank documents require that the act described in the request would also be punishable under Swiss law (dual criminality, Art. 64 IMAC). The principle of speciality in Article 67 IMAC prevents the requesting State from using information obtained through assistance in proceedings for offences for which assistance would not have been granted, above all fiscal offences.⁵ These three rules marked the boundary of the Swiss commitment. Switzerland helped to trace the proceeds of heroin, extortion and corruption, but it refused to help Italy trace undeclared savings.

Practice in the 1980s

For the Ticino prosecutors the execution of Italian requests became a daily task. Requests from Palermo concerned Mafia money. Requests from Milan concerned fraudulent bankruptcies, false accounting and, after 1992, corruption. Each request required the Swiss authority to decide whether the facts described corresponded to a Swiss offence and whether they concealed a fiscal purpose. The account holder, usually represented by a Lugano lawyer, could then contest every decision before the cantonal courts and the Federal Court. In the original version of the IMAC, intermediate decisions could also be appealed, and proceedings that the Italian investigators expected to last weeks could take years.⁶ Falcone's method of travelling to Switzerland and taking part in the execution of his requests was in part a response to this delay. Through personal contact with Swiss magistrates the Italian judge could explain the context of his request, and the Swiss judge could formulate the questions to the bank in a way that would survive the appeal.

Notes

1. European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, SR 0.351.1, Art. 1(1); in force for Switzerland since 20 March 1967. ↩
2. Federal Act on International Mutual Assistance in Criminal Matters of 20 March 1981 (IMAC), SR 351.1, index at https://www.droit-bilingue.ch/en-de/3/35/351.1-index.html. Art. 112 IMAC (as above) for the commencement date of 1 January 1983. ↩
3. Agreement between Switzerland and Italy supplementing the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and facilitating its application, concluded on 10 September 1998, in force since 1 June 2003, SR 0.351.945.41. ↩
4. Art. 3(3) IMAC, https://www.droit-bilingue.ch/en-de/3/35/351.1-3-7.html (current version as amended by the Federal Act of 3 October 2008, in force since 1 February 2009). ↩
5. Art. 67 IMAC, https://www.droit-bilingue.ch/en-de/3/35/351.1-67-86.html; Art. 64 IMAC, https://www.droit-bilingue.ch/en-de/3/35/351.1-64-82.html. (coercive measures only if the facts contain "the objective elements of an offence under Swiss law"). ↩
6. On the appeal system under the original IMAC and the length of proceedings see the Federal Council's message on the revision, BBl 1995 III 1. ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of August 2025.