Facts
The Federal Criminal Court (Appeal Chamber) did not grant the appeal filed by several affected companies (the appellants) against an account freeze ordered by the Office of the Attorney General on 15 August 2013. The appellants were six companies whose bank accounts had been frozen by the Office of the Attorney General in the context of a criminal investigation against a natural person for bribery of foreign officials and money laundering. The Office of the Attorney General had disclosed the freeze order to the banks without imposing a non-disclosure obligation on the appellants. Furthermore, no formal notification of the freeze was sent to the appellants or their legal representatives domiciled in Switzerland. The appellants filed an appeal with the Federal Criminal Court on 27 September 2013 after receiving a faxed copy of the bank’s enforcement protocol on 19 September 2013. On 10 October 2013, the Office of the Attorney General had already ordered the release of the accounts held by four of the six appellants. Against the Federal Criminal Court’s decision not to enter into the matter on 8 May 2014, the appellants filed an appeal with the Federal Supreme Court on 10 June 2014.
Considerations
The Federal Supreme Court first examined the admissibility requirements under Art. 79 et seq. FSCA and found them to be met. It then addressed the question of whether the appeal period for the appellants had already expired before they filed their appeal on 27 September 2013. The lower court and the Office of the Attorney General were of the view that the appellants’ legal representative had already been informed of the account freezes by telephone on 21 August 2013, meaning that the ten-day appeal period under Art. 396 para. 1 CrimPC had begun to run from that date. The Federal Supreme Court rejected this view and held that an oral notification of an account freeze is only permissible in urgent cases but must subsequently be confirmed in writing (Art. 263 para. 2 CrimPC). The appeal period only begins to run upon such written confirmation, not upon an oral notification.
The Federal Supreme Court further clarified that the account freezes in the present case could not have been treated as confidential. Neither was a non-disclosure obligation imposed on the appellants nor was a time-limited confidentiality order issued under Art. 73 para. 2 CrimPC. Therefore, the Office of the Attorney General should have notified the appellants or their legal representatives in writing of the freeze in accordance with Art. 85 para. 1, Art. 87 para. 3, Art. 199 and Art. 263 para. 2 CrimPC. A mere telephone notification without written confirmation was insufficient to trigger the appeal period.
The Federal Supreme Court emphasised that the right to effective legal protection under the Federal Constitution and the Code of Criminal Procedure requires a challengeable written order. The short ten-day appeal period under Art. 396 para. 1 CrimPC must not expire before the persons concerned…