Facts
On April 4, 2016, the Office of the Attorney General of Switzerland (OAG) ordered the immediate transmission to the French authorities of the results of telephone surveillance measures carried out on connections attributed to company [A. SA] and [B.], before the persons concerned were informed. [A. SA] and [B.] appealed against this decision.
By judgment of December 21, 2016, the Criminal Appeals Chamber of the Federal Criminal Court declared the appeal inadmissible, considering that the conditions for immediate transmission made it possible to prevent any irreparable damage.
[A. SA] and [B.] then filed a public law appeal with the Federal Tribunal, requesting the annulment of the judgment of the Criminal Appeals Chamber and a finding that the premature transmission of the telephone surveillance was not admissible under Article 18a of the Federal Act on International Mutual Assistance in Criminal Matters (IMAC).
Considerations
The Federal Tribunal upheld the appeal, declaring the appeal to the Criminal Appeals Chamber admissible and finding that the premature transmission was unlawful under Article 18a IMAC.
Indeed, according to the Federal Tribunal, Swiss criminal procedure law provides that the results of telephone surveillance may be used before the person concerned is informed. However, in the field of judicial assistance, the principle of real-time transmission of information abroad is contrary to the general rules on the judicial…