Transmission of Banking Data in International Assistance

Transmission of Banking Data

The transmission of banking data is one of the most frequent forms of ancillary assistance. It raises particular questions related to Swiss banking secrecy and data protection.

Legal Framework

The transmission of banking data under criminal MLA is governed by:

1. The IMAC (art. 63-80)
2. The Banking Act (BA, art. 47 -- banking secrecy)
3. Bilateral and multilateral conventions

Banking Secrecy Is Not an Obstacle

Banking secrecy (art. 47 BA) cannot be invoked to refuse mutual legal assistance in criminal matters. Art. 63 para. 2 let. c IMAC expressly provides that MLA measures include lifting banking secrecy.

Conditions for Transmission

For Switzerland to transmit banking data to a foreign state, the following is required:

1. Dual criminality must be satisfied
2. The request must be sufficiently specific (no "fishing expeditions")
3. The principle of proportionality must be respected
4. The speciality principle must be guaranteed

Procedure

The competent cantonal authority (public prosecutor) orders the bank search and seizure of documents. Affected persons are informed and may oppose the transmission (art. 80e IMAC).

Document Sorting

Before transmission, documents must be sorted to exclude those not relevant to the foreign investigation. The person concerned has the right to participate in the sorting process.

Remedies

The decision to transmit banking data may be appealed to the FCC within 30 days (art. 80e para. 1 IMAC).