Facts
On 14 May 2018, the Brazilian Federal Public Prosecutor's Office submitted to Switzerland a request for mutual legal assistance in criminal proceedings for active bribery, money laundering and criminal organisation, within a broad investigation into public contracts awarded by the Brazilian state-owned company [D.] to various companies, including the [E.] group. The foreign authority requested the seizure of an account held at the bank [H. SA] in Geneva in the name of [G.] Corp., whose beneficial owner is a suspect.
By closing decision of 28 October 2019, the Office of the Attorney General of Switzerland (OAG) ordered the transmission of the banking documentation to the Brazilian authorities. By judgment of 28 April 2020, the Federal Criminal Court's Criminal Appeals Chamber (CACH) dismissed the request for suspension and, insofar as admissible, the appeal.
The appellant company brought an appeal before the Federal Supreme Court requesting the annulment of the decisions, the refusal of the request for assistance or, alternatively, referral back to the CACH or to the OAG. No exchange of written submissions was ordered.
Considerations
Against decisions in international criminal mutual legal assistance matters, an appeal is admissible only if it concerns the disclosure of information relating to the secret sphere and a particularly important case is at issue (Art. 84 para. 1 FSCA). Such a case exists in particular where there are grounds to believe that fundamental procedural principles have been violated or that the foreign proceedings present serious deficiencies (Art. 84 para. 2 FSCA); the list is not exhaustive and the Federal Supreme Court may also intervene for legal questions of principle or for departures from settled case law. Art. 84 FSCA must be interpreted restrictively, and it is for the appellant to demonstrate that the conditions are met (Art. 42 para. 2 FSCA).
The Federal Supreme Court finds that the appellant has not demonstrated the existence of serious deficiencies. The initial defect, concerning the seizure requested without prior authorisation from the Brazilian judge, was cured, since the account was unblocked in 2018 and the banking relationships were unblocked before the CACH decision. Moreover, this defect does not constitute a serious deficiency within the meaning of Art. 2 let. d IMAC, a provision that may be invoked only by the person prosecuted. As to the alleged failure to observe reciprocity and the interruption of assistance relations with Brazil, the circumstances invoked, including the conditions imposed by the foreign authority and the withdrawal of the Swiss request, do not meet the requirements of Art. 84 para. 2 FSCA. Likewise, the media coverage of the case, its political relevance, the amount of the sums involved and any possible breach of official secrecy abroad do not confer particular importance on the matter, considering that assistance had already been granted several times within the framework of these investigations.
The appellant further argues that a breach of good faith between States would lead to the refusal of assistance under Art. 1a IMAC and Art. 3 no. 1 let. d of the Treaty with Brazil. The Federal Supreme Court notes that the CACH, by declaring itself incompetent to examine this complaint, did not depart from practice. Under Art. 17 para. 1 IMAC, competence to decide on Art. 1a IMAC lies with the Federal Department of Justice…