Facts
On 7 December 1996, Interpol Moscow forwarded to the Swiss authorities a request for judicial assistance from the Prosecutor General of the Russian Federation, on behalf of the “Moskauer Transportstaatsanwaltschaft”, for the purposes of a criminal proceeding opened in December 1993 against the accused A., a former Deputy Minister, suspected of illicit exports of raw materials and abuse of office. These acts allegedly involved the export of 200 tonnes of copper waste using false customs documents obtained through corruption. The proceeds of these offences are alleged to have been placed in bank accounts in Switzerland or invested, in the name of the accused or his wife, in real estate or valuable items.
On 8 December 1995, the Federal Office of Police (IFO) forwarded this request to the Office of the Attorney General of Switzerland (MPC), which ordered the freezing of accounts and the production of bank documents. On 12 and 13 December 1995, orders were served on two Geneva banks (Bank C. and Bank Y.) for the freezing and sealing of documents relating to the accounts of Mr and Mrs A. On 1 November 1996, the MPC issued six orders admitting the request, including the sequestration of accounts, the production of bank documents, and documents relating to the purchase of jewellery and the schooling of the accused’s children.
The spouses A., their children, and four companies (B., J., R. and X.) filed an administrative law appeal against these measures, seeking the annulment of the orders, the rejection of the request for judicial assistance, and the immediate lifting of the freezing and seizure measures. The Federal Supreme Court dismissed the appeal to the extent that it was admissible and granted a request by the MPC for the lifting of the seals on the documents.
Considerations
The Federal Supreme Court first examined the standing to bring an action of the appellants. Under Art. 80h(b) IMAC, a person may only bring an appeal if they are personally and directly affected by the judicial assistance measure. Case law recognises this standing for the holder of a bank account subject to a request for information or the owner of a seized document, but denies it to the beneficial owner or the author of documents seized in the hands of a third party. In this case, only Mr and Mrs A. had standing to bring an action regarding the sequestration of their joint account with Bank C. The other measures (seizure of documents in the hands of third parties, freezing of accounts where Mrs A. was only a signatory, or measures concerning the companies) did not directly affect them. The corporate appellants did not establish their standing to bring an action, and since the documents were under seal, the Court could not examine their admissibility.
The Court then analysed the admissibility of the request for judicial assistance. Art. 1(3) IMAC requires that the request relate to a criminal matter in which the requesting State may resort to a judge. The “Transportstaatsanwaltschaft” in Moscow, although an administrative authority, has investigative powers similar to those of an ordinary prosecuting authority, as evidenced by the arrest warrant of 18 August 1995 and the indictment of 25 August 1995. No certificate of legality (Art. 76(c) IMAC) was required, as the powers of the requesting authority were clearly established.
Finally, the Court assessed the procedural guarantees required by Art. 2 IMAC, in particular compliance with the fundamental rights guaranteed by the ECHR and the UN Covenant II. Although Russia has shortcomings in its judicial system (conditions…