Facts
The examining magistrate of the canton of Geneva was seized of a request for judicial assistance submitted by the French authorities in the context of procedure SCC/414/2000. At the same time, he was conducting a related domestic criminal procedure (P/16972/2000). In this context, he ordered the seizure of accounts nos y and z, held by Mr and Mrs P.
On 11 July 2001, the examining magistrate issued a decision to close the transmission of the documentation relating to account no x, a decision that became final. On 17 May 2002, the French authorities made a supplementary request for the handover of the documentation relating to accounts nos y and z, which were funded by account no x.
On 13 January 2003, the examining magistrate issued a decision to close authorising the transmission of the documentation for accounts nos y and z. On 20 January 2003, he also ordered a protective sequestration of the funds in account no y.
Mr and Mrs [P.] appealed against these decisions to the Court of Appeal of the canton of Geneva. By decision of 27 August 2003, the Court partially upheld the appeal: it annulled the decision of 13 January 2003 insofar as it concerned the transmission of documents prior to 1 January 2003, while confirming the decisions in all other respects. Mr and Mrs [P.] then brought an administrative appeal before the Federal Supreme Court, which partially upheld their appeal.
Considerations
The Federal Supreme Court first recalls that the Swiss executing authority is required to comply with the principle of proportionality when executing a request for judicial assistance. In the present case, the French request concerned the handover of all the documentation relating to the accounts of Mr and Mrs [P.], including in particular the account opening documents, transaction statements, transfer notices and internal notes. However, the file for procedure SCC/414/2000 did not contain all the elements required for account no y, in particular the opening documents and transfer notices. This shortcoming, which went unnoticed until then, led to an incomplete execution of the French request. The Federal Supreme Court therefore concludes that the decisions of 13 January and 27 August 2003 must be annulled and that the matter must be referred back to the examining magistrate for a new decision, after the missing documents have been seized.
The Federal Supreme Court then sets out the rules applicable to the sorting of seized documents before their handover. It emphasises that the executing authority cannot simply hand over the documents in bulk to the requesting State, but must itself sort the relevant documents. This obligation stems from the principle of proportionality, which requires that only those documents useful to the foreign procedure be handed over. The holder of the seized documents is under an obligation to cooperate by indicating which documents should not be handed over and for what reasons, failing which they will be precluded from doing so. The executing authority must give them a concrete and effective opportunity to state their position, so that they can exercise their right to be heard.
The Federal Supreme Court also recalls that the participation of the foreign magistrate in the sorting operation, provided for in art. 65a IMAC, may facilitate this task. In the…