In a decision rendered on January 24, 2017, the Swiss Federal Criminal Court in Bellinzona ruled that an accused party may personally participate in cases where the Swiss Federal Attorneys Office ("Office") takes evidence abroad via the means of international criminal assistance procedures.
In the present case, the Office had filed in July 2015 and February 2016 a request with criminal investigators in Brazil to interrogate certain individuals in that country. In line with a long-standing practice, the accused party was allowed to file vis à vis the Office a questionnaire whereby the Office would pose the accused person's respective questions and later give the accused person access to the interrogation protocols. Legal commentators in Switzerland had critized this obvious limited participation rights for quite some time.
The Swiss Federal Criminal Court in Bellinzona now shared these concerns by extending the accused person's participiation rights to include the right to personally attend the evidence taking abroad or to send at least its legal representatives to the foreign place of evidence taking.
The Office had argued that the accused person was represented by its Brazilian attorneys so that there was no need for duplicated legal respresentation in Brazil. The Swiss Federal Criminal Court refused this argument by saying that only Swiss legal representatives were suited to focus in the interrogations on the Swiss aspects of the criminal proceedings.
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