Procedure: from Bern to the Zurich prosecutor and back

The Federal Office of Justice and the executing authorities

Requests that do not travel directly between prosecutors reach the Federal Office of Justice, which acts as the central authority. Its International Legal Assistance Division checks whether the request meets the formal requirements and whether it is manifestly inadmissible. It then delegates execution to the competent cantonal prosecution authority or, in cases involving federal jurisdiction, to the Office of the Attorney General of Switzerland. The division had fifty permanent staff in May 2024, organised into units for extradition, for asset seizure and recovery, for evidence and the service of documents, for international treaties and for the Swiss liaison office at Eurojust.¹ The Federal Office may also conduct the proceedings itself where a case is complex or of particular importance, and it designates a lead canton when a request concerns several cantons.²

The volume of work is considerable. In 2023 Switzerland received 1,350 requests for evidence in criminal matters and 20 requests aimed specifically at asset recovery, while Swiss authorities sent 1,069 requests for evidence and 11 asset recovery requests abroad. In the same year the Federal Office recorded 11 cases of international sharing of assets forfeited in Switzerland and 13 cases of sharing of assets forfeited abroad.³ These figures understate the true volume because they do not include the many requests that neighbouring states send directly to cantonal prosecutors. The Swiss Federal Audit Office, which evaluated the system in 2020, counted around 13,300 requests processed between 2008 and 2018 in its sample of executing authorities and found that roughly half had arrived through direct channels. According to the same evaluation, the twenty-six cantonal prosecution services handled 88 per cent of cases, the Office of the Attorney General about 10 per cent and the Federal Office of Justice itself less than 2 per cent.⁴

Execution in Zurich

The canton of Zurich carries the heaviest share of this burden. The Federal Audit Office found that the Zurich authorities had processed 3,296 requests over the ten-year period it examined, more than any other executing authority in its analysis.⁵ Within the cantonal prosecution service the competence lies with the Staatsanwaltschaft III des Kantons Zürich, whose remit covers qualified economic crime, money laundering proceedings and international mutual assistance. The office, located at Güterstrasse 33 near the main railway station, executes procedural acts for foreign authorities, such as the service of documents and the taking of evidence, and returns the results while the requesting state retains control of its own proceedings.⁶ Concentrating domestic economic crime and international assistance in one office has practical advantages. The prosecutors who execute a foreign request are often the same who run parallel Swiss money laundering proceedings against the same accounts, and they are familiar with the internal organisation of the large banks from which they obtain documents.

The procedure in Zurich follows the Act and, subsidiarily, the Swiss Criminal Procedure Code. Once the prosecutor has accepted the request, the entry decision is issued and the bank receives an order to produce documents relating to the accounts identified. The bank is usually prohibited from informing its client for a limited period, to protect the foreign investigation. When the documents have been collected, the account holder is given the opportunity to take part, to inspect the file and to comment on which documents should be transmitted. The prosecutor then issues a final ruling on the conclusion of the mutual assistance proceedings, which lists the documents to be transmitted and the conditions attached, including the speciality reservation.

Appeals to the Federal Criminal Court

The final ruling, together with the preceding interim rulings, may be challenged before the Appeals Chamber of the Federal Criminal Court in Bellinzona.⁷ The right of appeal belongs to the Federal Office of Justice and to any person “personally and directly affected by a mutual assistance measure” who has a legitimate interest in its annulment or modification.⁸ The time limit is thirty days for the final ruling and ten days for an interim ruling, running from the written communication of the decision.⁹ The case law on standing is restrictive. In the case of bank documents, only the holder of the account is personally and directly affected, even if the beneficial owner or a person mentioned in the documents has an interest in keeping them secret. A beneficial owner who holds assets through a company or a foundation must therefore act through the account holder, and cannot appeal in his own name unless the company has been dissolved and he has become its successor.¹⁰

Interim rulings may be appealed only if they cause immediate and irreparable harm. Seizures of assets and the handing over of documents before the end of the procedure fall into this category, while the mere production order addressed to a bank does not. The system is designed to concentrate all objections in a single appeal against the final ruling, which delays the transmission until the appeal has been decided. The Federal Audit Office found that only about 7 per cent of appeals succeed, but that the appeal period alone delays execution by at least a month, and it noted that appeals are frequently used as a means of delaying foreign proceedings.¹¹ The same evaluation measured median processing times of around 100 days for simple cases outside economic crime and around 290 days for economic crime matters, which gives an idea of the time a foreign prosecutor must budget for evidence from Zurich.

The Federal Supreme Court and the “particularly important case”

Access to the Federal Supreme Court in Lausanne is deliberately narrow. Under Article 84 of the Federal Supreme Court Act, an appeal in matters of international mutual assistance in criminal matters is admissible only against decisions concerning extradition, seizure, the handing over of objects or assets, or the transmission of information concerning the secret domain, and only if the case is “particularly important”. The second paragraph of the provision gives examples: a case is particularly important where there are reasons to assume that elementary procedural principles have been violated or that the proceedings abroad suffer from serious defects. The Court set out its approach shortly after the Act entered into force. In a decision of May 2007, published as BGE 133 IV 125, it held that the purpose of Article 84 is to limit access effectively and that it enjoys a wide margin of appreciation in deciding whether a case qualifies.¹²

The time limit for the appeal to the Federal Supreme Court is only ten days, and the Court often decides on admissibility within days, in a simplified procedure before three judges. The practice has remained consistently strict. A decision of February 2026 concerning the transmission of a witness interview record to Ukraine in a corruption and money laundering investigation restated that a particularly important case exists only exceptionally in the field of “minor” mutual assistance. The appellant had not shown why the requirement was met, and the Court declined to enter into the merits.¹³ A Zurich case of November 2023 illustrates the same restraint in a matter outside the financial sphere. The Court refused to examine an appeal against a DNA sample taken at the request of German authorities in a rape investigation, even though the case concerned the secret domain, because the appellant’s arguments raised no doubt about the conformity of the decision with federal law.¹⁴

For practitioners the lesson is clear. The Federal Criminal Court is in most cases the last instance. Arguments must be presented there fully and precisely, since the Federal Supreme Court will intervene only where the case raises a question of principle, where the foreign proceedings appear gravely defective, or where the sums or the political sensitivity are of an exceptional order. Cases in which the Court has accepted a particularly important case typically involved large asset transfers, new legal questions such as the use of stolen data, or requests from states with doubtful procedural guarantees.

Dynamic assistance, joint investigation teams and new tools

Classical mutual assistance works sequentially: evidence is collected, the account holder is heard, and transmission follows only after the final ruling has become enforceable. This model was criticised for being too slow in cases of terrorism and organised crime. In the context of the ratification of the Council of Europe Convention on the Prevention of Terrorism, Parliament introduced Article 80dbis into the Act, which allows the early transmission of information and evidence before the conclusion of the proceedings. Early transmission is permitted where foreign investigations into organised crime or terrorism would otherwise be made disproportionately difficult, in particular because of a risk of collusion or the need for confidentiality, or in order to avert a serious and immediate danger, especially a terrorist offence.¹⁵ The provision is subject to safeguards, such as the undertaking by the foreign authority not to use the material as evidence until the Swiss decision has become final. Its practical relevance for financial cases lies in large money laundering investigations involving criminal organisations, where the foreign authorities need to follow the money in real time.

The Federal Office of Justice has also been adapting the procedure to the needs of common law states. A new Article 55a of the Criminal Procedure Code, in force since January 2024, allows Swiss courts to approve compulsory measures that a common law jurisdiction requires to be authorised by a judge, so that evidence obtained in Switzerland can be admitted in foreign courts.¹⁶ The same report addresses the European Union’s electronic evidence package, applicable from 2026, under which service providers such as Threema or Proton may have to appoint legal representatives in the European Union. The Federal Council opened a broad consultation on the options for Switzerland in February 2024. Direct access by foreign authorities to data held by Swiss providers remains one of the open questions in the relationship between Switzerland and the European Union.

Spontaneous transmission

Article 67a of the Act permits Swiss prosecutors to share information with foreign counterparts without having received a request. A prosecution authority may transmit information or evidence gathered in its own investigation where it considers that this may permit the opening of criminal proceedings abroad or facilitate an ongoing foreign investigation. The transmission of evidence to a state with which Switzerland has no international agreement requires the authorisation of the Federal Office. Two further paragraphs give the provision its particular shape. Evidence subject to the rules on secrecy, above all bank documents, may not be transmitted spontaneously. Information from the secret domain may nevertheless be passed on if it enables the foreign state to present a request for mutual assistance. Every spontaneous transmission must be recorded.¹⁷

In practice the provision works as an invitation. A Zurich prosecutor investigating money laundering through accounts at a Zurich bank informs the foreign authority that accounts exist in the name of certain persons, that suspicious flows have been observed, and that a request would be welcome. The foreign authority then sends a formal request, and the evidence travels through the regular channel with full procedural protection. The account holder has no right to be heard before a spontaneous transmission. Whether a Swiss authority has gone too far in its disclosures therefore tends to be litigated afterwards. In one such case a Brazilian citizen convicted in Brazil partly on the basis of spontaneously transmitted bank information sued the Confederation for damages, which led the Federal Supreme Court to examine the limits that the secret domain and the speciality principle place on Article 67a.¹⁸

Seizure, handing over and sharing of assets

Mutual assistance also serves to secure assets and to return them to the state or person entitled. Provisional measures, in particular the freezing of accounts, may be ordered as soon as the request has been received, and in urgent cases even on the basis of an announcement of a request. Under Article 74a of the Act, objects or assets that have been seized as a precaution may be handed over to the requesting state after the conclusion of the mutual assistance proceedings for the purpose of forfeiture or return to the person entitled. The provision covers instruments used to commit the offence, the proceeds of the offence and their replacement value, and gifts or other contributions that served to instigate or reward the offence. The handing over “may take place at any stage of the foreign proceedings, normally based on a final and executable decision from the requesting State”.¹⁹

The word “normally” has had considerable consequences. In the Abacha case the Swiss authorities returned funds to Nigeria before a final Nigerian forfeiture judgment existed, on the ground that the criminal origin of the assets was obvious. The then head of the relevant section of the Federal Office of Justice referred to this case as an exception in which the requirement of a final foreign decision was waived because “the criminal source is obvious”.²⁰ Where assets are forfeited in Switzerland itself, for example in a Swiss money laundering proceeding, the Federal Act on the Division of Forfeited Assets allows them to be shared with the foreign state that contributed to the investigation. In 2023 the Federal Office recorded 62 cases of domestic sharing between the Confederation and the cantons, in addition to the international sharing cases mentioned above.²¹ Sharing is a matter of negotiation, and the usual split between Switzerland and a cooperating state is a matter of practice that depends on the contribution each state made.

Notes

1. Federal Office of Justice, “Annual Activity Report 2023: Mutual Legal Assistance”, https://www.bj.admin.ch/dam/en/sd-web/MwzJIA6XWsan/jb-irh-2023.pdf, section on the structure of the International Legal Assistance Division. The report states “50 permanent staff … making 43 full-time equivalents (as at May 2024)”. ↩
2. Pascal Gossin, “International Mutual Legal Assistance in Switzerland”, UNAFEI Resource Material Series No. 77, https://www.unafei.or.jp/publications/pdf/RS_No77/No77_07VE_Gossin.pdf. ↩
3. Federal Office of Justice, “Annual Activity Report 2023: Mutual Legal Assistance”, https://www.bj.admin.ch/dam/en/sd-web/MwzJIA6XWsan/jb-irh-2023.pdf, statistical annex. The figures cover requests handled through the Federal Office and do not capture the full volume of direct transmission between judicial authorities. ↩
4. Swiss Federal Audit Office (Eidgenössische Finanzkontrolle, EFK), “Evaluation der internationalen Rechtshilfe in Strafsachen”, report EFK-18293 of 22 June 2020, https://www.efk.admin.ch/wp-content/uploads/publikationen/berichte/sicherheit_und_umwelt/justiz_und_polizei/18293/18293be-endgueltige-fassung-v04-d.pdf. ↩
5. Swiss Federal Audit Office, “Evaluation der internationalen Rechtshilfe in Strafsachen”, EFK-18293 (2020), https://www.efk.admin.ch/wp-content/uploads/publikationen/berichte/sicherheit_und_umwelt/justiz_und_polizei/18293/18293be-endgueltige-fassung-v04-d.pdf, figures by executing authority. ↩
6. Kanton Zürich, “Staatsanwaltschaft III des Kantons Zürich – Qualifizierte Wirtschaftskriminalität und Internationale Rechtshilfe”, https://www.zh.ch/de/direktion-der-justiz-und-des-innern/staatsanwaltschaft/Staatsanwaltschaft-III-des-Kantons-Zuerich-Qualifizierte-Wirtschaftskriminalitaet-und-Internationale-Rechtshilfe.html. ↩
7. Art. 80e para. 1 IMAC, English text at droit-bilingue.ch, https://www.droit-bilingue.ch/de-en/3/35/351.1-80e-119.html. ↩
8. Art. 80h IMAC, English text at droit-bilingue.ch, https://www.droit-bilingue.ch/de-en/3/35/351.1-80h-121.html. ↩
9. Art. 80k IMAC, English text at droit-bilingue.ch, https://www.droit-bilingue.ch/de-en/3/35/351.1-80k-123.html. ↩
10. BGE 130 II 162 of 19 January 2004, https://servat.unibe.ch/dfr/bge/c2130162.html, on Art. 80h lit. b IMAC (only the account holder is personally and directly affected by the transmission of bank documents, with references to BGE 116 Ib 106 and 114 Ib 156 on the lack of standing of the beneficial owner); BGE 123 II 153 of 8 April 1997, Regeste, https://servat.unibe.ch/dfr/bge/c2123153.html (“ausnahmsweise zur Beschwerdeführung legitimiert, wenn die juristische Person aufgelöst worden ist”). ↩
11. Swiss Federal Audit Office, “Evaluation der internationalen Rechtshilfe in Strafsachen”, EFK-18293 (2020), https://www.efk.admin.ch/wp-content/uploads/publikationen/berichte/sicherheit_und_umwelt/justiz_und_polizei/18293/18293be-endgueltige-fassung-v04-d.pdf, chapter on appeals and duration. ↩
12. Federal Supreme Court, BGE 133 IV 125, judgment 1C_125/2007 of 30 May 2007, Regeste and consideration 1, https://www.servat.unibe.ch/dfr/bge/c4133125.html. The decision refers to the criteria of violated elementary procedural principles and serious defects in the foreign proceedings. ↩
13. Federal Supreme Court, judgment 1C_98/2026 of 27 February 2026, https://search.bger.ch/ext/eurospider/live/de/php/aza/http/index.php?highlight_docid=aza%3A%2F%2F27-02-2026-1C_98-2026&lang=de&zoom=&type=show_document, citing BGE 145 IV 99. ↩
14. Federal Supreme Court, judgment 1C_627/2023 of 23 November 2023, discussed in strafrechtonline.ch, “Internationale Rechtshilfe: Zurückhaltung bei Annahme von besonders bedeutendem Fall nach Art. 84 BGG”, https://strafrechtonline.ch/internationale-rechtshilfe-zurueckhaltung-bei-annahme-von-besonders-bedeutendem-fall-nach-art-84-bgg/. ↩
15. Art. 80dbis para. 1 IMAC, English text at droit-bilingue.ch, https://www.droit-bilingue.ch/de-en/3/35/351.1-80dbis-108.html. ↩
16. Federal Office of Justice, “Annual Activity Report 2023: Mutual Legal Assistance”, https://www.bj.admin.ch/dam/en/sd-web/MwzJIA6XWsan/jb-irh-2023.pdf, section on cooperation with common law jurisdictions. ↩
17. Art. 67a IMAC, English text at droit-bilingue.ch, https://www.droit-bilingue.ch/de-en/3/35/351.1-67a-87.html. ↩
18. Federal Supreme Court, BGE 139 IV 137, judgment 2C_84/2012 of 15 December 2012 (state liability; mutual assistance with Brazil; unsolicited transmission of bank information), https://www.servat.unibe.ch/dfr/bge/c4139137.html. ↩
19. Art. 74a paras 1–3 IMAC, English text at droit-bilingue.ch, https://www.droit-bilingue.ch/de-en/3/35/351.1-74a-95.html. Paragraph 4 allows retention in Switzerland where victims, authorities or third parties have claims, and paragraph 7 excludes assets subject to a sharing agreement. ↩
20. Pascal Gossin, “International Mutual Legal Assistance in Switzerland”, UNAFEI Resource Material Series No. 77, https://www.unafei.or.jp/publications/pdf/RS_No77/No77_07VE_Gossin.pdf, section on asset return. ↩
21. Federal Office of Justice, “Annual Activity Report 2023: Mutual Legal Assistance”, https://www.bj.admin.ch/dam/en/sd-web/MwzJIA6XWsan/jb-irh-2023.pdf, statistics on asset sharing. ↩

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 September 2025.