Facts

The Office of the Attorney General of Switzerland (OAG) opened criminal proceedings in 2015 against [A.] , FIFA Secretary General, for breach of trust and embezzlement, following complaints filed by third-party companies. In 2016 and 2017, complaints for private bribery were added against [A.] , as well as against [B.] and [C.] , in connection with financial benefits and media rights contracts.

The acts alleged mainly concern

  • [B.] ’s acquisition of Villa [O.] in 2013, indirectly financed by [A.] , in exchange for preferential treatment in the allocation of media rights for the 2026/2030 World Cups for the Middle East and North Africa to [M.M.] Network/[N.] LangA, a company linked to [B.] .
  • The payment of 500,000 EUR in 2013, then 500,000 EUR in 2014 and 250,000 EUR in 2014, by [C.] to [A.] via shell companies ([I1.] CO. and [J1.] Sàrl), in exchange for the allocation of media rights in Greece and Italy for the 2018/2022 World Cups to companies controlled by [C.] (E[1.E1. SA] and H[1.H1.] Ltd).
  • [A.] ’s falsification of accounting records to conceal these financial flows.
  • [A.] ’s active participation in negotiating and approving media rights contracts, in violation of his fiduciary duties to FIFA.

At first instance, the Federal Criminal Court (Criminal Chamber) convicted [A.] for forgery of documents and passive bribery, imposing a fine of 120 day-fines at 200 CHF/day, suspended. [B.] and [C.] were acquitted. On appeal, the Criminal Appeals Chamber of the Federal Criminal Court convicted [A.] for repeated forgery of documents and repeated passive bribery to a custodial sentence of 11 months and a fine of 100 day-fines at 200 CHF/day, suspended. [C.] was convicted for repeated active bribery to a suspended custodial sentence of 10 months. [B.] was acquitted.

The three convicted individuals filed an appeal with the Federal Supreme Court, challenging, among other things, the admissibility of procedural acts due to the involvement of recused prosecutors, the withdrawal of complaints for private bribery, and the legality of the convictions.

Considerations

1. Admissibility of the preliminary proceedings and recusal of prosecutors:

The appellants ([A.] , [B.] and [C.] ) allege that the preliminary proceedings are inadmissible due to the involvement of recused prosecutors ([F.] , [G.] and [H.] ) in the opening of the SV.17.0008 investigation. The Federal Supreme Court recalls that Art. 60 para. 1 CrimPC allows for the annulment and repetition of procedural acts in which a person required to recuse themselves participated, provided the request is made within five days of becoming aware of the ground for recusal. In this case, the Appeals Chamber correctly applied this provision by annulling and repeating the relevant acts and expunging the file of tainted documents. The appellants do not demonstrate that any non-repeated acts were contaminated by the involvement of the recused prosecutors. Their grievance is therefore inadmissible, as it is based on a misinterpretation of the facts and a purely appellate criticism.

2. Withdrawal of complaints for private bribery:

The appellants [C.] and [B.] argue that the complainant [E.] withdrew her complaints for private bribery dated 27 December 2016 and 2 June 2017. The Federal Supreme Court recalls that a withdrawal of complaint must be unequivocal (Art. 33 SCC). In this case, [E.] ’s letters of 3 December 2021 and 7 February 2022, although contradictory, do not constitute a clear withdrawal of complaint. [E.] reiterated her submissions on appeal, requesting confirmation of the first-instance judgment, which had acquitted the appellants of private bribery. The partial withdrawal of complaint dated 31 January 2020 only concerned [B.] , not [C.] . The Appeals Chamber therefore correctly found that the complaints for private bribery had not been withdrawn.

3. Violation of the right to be heard and the principle of case completeness:

The appellants allege that the Appeals Chamber violated their right…