Refusal of mutual legal assistance due to violation of fundamental procedural principles

Facts

On 29 January 2005, the public prosecutor's office of Sisli, Istanbul (Turkey), requested mutual legal assistance from Switzerland in a case of economic crime. The request for assistance concerned, in particular, the production of bank documents relating to accounts held by banks in Switzerland. The request was transmitted to the Federal Office of Justice (FOJ) for execution.

On 12 June 2007, Turkey filed a supplementary request for assistance, requesting the freezing of an account belonging to A. and, on 4 May 2015, the transfer of the account balance (based on a confiscation judgment of 29 March 2013 of the 8th Criminal Chamber of Istanbul). By final decision of 18 October 2016, the FOJ authorized the transfer of the account balance to Turkey.

The account holder lodged an appeal against the FOJ's decision of 18 October 2016, which the Federal Criminal Court, Appeal Chamber, upheld on 13 July 2017. The Court annulled the decision of 18 October 2016 and referred the case back to the FOJ for a new decision, asking it to give Turkey the opportunity to comment on whether the account holder's right to be heard had been respected in the Turkish proceedings and, if so, to prove that this right had been respected.

On 27 September 2017, the FOJ asked Turkey to comment on whether the account holder's right to be heard had been respected in the Turkish proceedings and, if so, to prove that this right had been respected. Turkey responded on 4 October 2017. By a new final decision of 20 December 2017, the FOJ again authorized the transfer of the account balance to Turkey.

The account holder lodged an appeal against the decision of 20 December 2017, which the Federal Criminal Court rejected on 6 August 2018. The account holder lodged an appeal against this decision with the Federal Supreme Court, requesting the annulment of the decision and the release of the frozen assets.

Considerations

The Federal Supreme Court examined whether the decision of the Federal Criminal Court was in accordance with the fundamental principles of procedure. It considered that the decision of the Federal Criminal Court of 13 July 2017 had found an obstacle to mutual legal assistance, as it appeared from the documents provided by Turkey that the account holder had not been heard in the Turkish proceedings that led to the confiscation judgment of 29 March 2013.

The Federal Supreme Court also…