SWITZERLAND Trends and Developments Contributed by: Jean-Marc Carnicé, Canonica Valticos Carnicé & Associés
A key principle of international co-operation is that information exchanged must be used solely for the purpose for which it was provided. This applies equal - ly when information received from a foreign counter - part is transmitted to another national authority with the counterpart’s consent. In practice, the Money Laundering Reporting Office is often authorised to forward such information to prosecutors, provided it is not used as evidence. As a result, information obtained through this chan - nel must not be included in the criminal case file. This restriction may conflict with a broad interpretation of the principle of respect for the rights of the defence under the Swiss Criminal Procedure Code, which requires all information received to be included in the file. To avoid breaching the conditions imposed by for - eign counterparts, the Money Laundering Reporting Office may choose not to transmit certain information to prosecutorial authorities. While legally prudent, this outcome is unsatisfactory, as even non‑evidentiary information may be crucial to the investigation. Pros - ecutors may then seek the same information through mutual legal assistance, enabling its lawful use as evidence. Information forwarded by the Money Laundering Reporting Office to prosecutors is therefore subject to a specific regime under AMLA, allowing it to be reviewed in accordance with strict conditions without necessarily being included in the case file. Issues relating to the rights of the defence The tensions described above may conflict with the rights of the defence, an issue that has been addressed by the courts. In a judgment of 11 April 2023, the Federal Criminal Court considered defend - ants’ access to information provided to the Money Laundering Reporting Office by foreign counter - parts. In that case, the counterpart FIU had expressly restricted the use of certain information in line with Egmont Group principles.
The Federal Criminal Court acknowledged that these principles constitute international standards that may take precedence over the Swiss Criminal Procedure Code. Nevertheless, it ultimately held that the right of access to the case file extends to all documents, regardless of their evidentiary value, leaving it to the parties to assess their relevance. This judgment highlights the tension between defend - ants’ rights of access and the confidentiality obliga - tions arising from the Egmont Group framework. For practitioners, the difficulty lies in challenging a refusal of access to such information, particularly where they are not aware that the Egmont Group communication system has been used. Conclusion The relationship between international mutual legal assistance in criminal matters and the Egmont Group demonstrates the essential complementarity between formal judicial mechanisms and informal operational co-operation. At the same time, this co-operation raises significant challenges, including the risk of circumventing proce - dural guarantees and uncertainties surrounding the admissibility of information obtained through informal channels. While the co-ordination of these mecha - nisms enhances the effectiveness of efforts against financial crime, it must remain consistent with funda - mental rights and the rights of the defence. Although progress has been made in reconciling these objectives, important issues remain unresolved.
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