Swiss Federal Supreme Court clarifies the grounds for sealing data and the competence of the unsealing judge under the revised Criminal Procedure Code

Sealing procedure - art. 248 al. 1 SCPC, art. 173 al. 2 SCPC, art. 264 al. 1 let. c SCPC, art. 197 SCPC

In its judgment 7B_950/2024, 7B_976/2024 of 15 November 2024, which is intended for publication, the Swiss Federal Supreme Court provided important clarifications regarding the sealing procedure under the new provisions of the Swiss Criminal Procedure Code (SCPC), which entered into force on 1 January 2024.

In brief:

Restricted grounds for sealing: Article 248 para. 1 SCPC, as applicable since 1st January 2024, no longer provides for seals to be affixed on “other grounds”. Other secrets within the meaning of art. 173 para. 2 SCPC, in particular commercial, business, manufacturing and banking secrets, no longer constitute a ground for opposing a seizing order or for requesting that a document or data be sealed under the new law, regardless of the procedural status of the holder or beneficiary concerned. On this point the Swiss Federal Supreme Court is clarifying its jurisprudence. Only the grounds set out exhaustively in art. 264 SCPC can therefore be invoked to request that a document be placed under seal.

Limited recourse to ancillary grounds under art. 197 SCPC: Ancillary grounds relating to the validity of coercive measures (art. 197 SCPC), such as lack of sufficient suspicion, breach of the principle of proportionality or irrelevance of the document or data, may also be examined by the unsealing judge. However, this presupposes, firstly, that the document or data has actually been seized as result of the coercive measure and, secondly, that a reason has been invoked that would allow seals to be affixed in accordance with art. 248 para. 1 and art. 264 SCPC. If these conditions are not met, the so-called ancillary grounds can only be raised in the context of an appeal under art. 393 SCPC. On this point, the Swiss Federal Supreme Court confirms its recent case law (7B_313/2024 of 24 September 2024, intended for publication).

Obligation of the unsealing judge to examine the ancillary grounds: Once a ground for unsealing within the meaning of Art. 264 SCPC has been raised, the unsealing judge is also obliged to examine the ancillary grounds raised by the entitled party, regardless of whether the unsealing judge dismisses the existence of the alleged secrets at the end of his analysis. Any other solution would require the claimant to also refer the matter to the appeal authority, either at the same time as the unsealing procedure or at a later stage, which, in the words of the Swiss Federal Supreme Court, “would be manifestly contrary to procedural economy and the principle of expedition”. In the case brought before the Swiss Federal Supreme Court, the Coercive Measures Court had refused to deal with the ancillary grounds raised by the appellant, thereby violating his right to be heard.

Comment: the concentration of grounds with the unsealing judge, as proposed by the Swiss Federal Supreme Court, is to be welcomed. It contributes to the sound administration of justice and avoids contradictory decisions. On the other hand, we find the restrictive interpretation of art. 264 SCPC less convincing, particularly as regards the unconditional exclusion of banking secrecy, which is a ground that may justify a refusal to testify if the holder can demonstrate a plausible interest in maintaining secrecy within the meaning of article 173 para. 2 SCPC.

In any event, many issues relating to the new sealing law remain open to debate. There is no doubt that further leading decisions will follow in the coming months.