Facts
The Canton of St. Gallen Public Prosecutor’s Office, Investigation Department Uznach, is conducting criminal proceedings for embezzlement, threats (possibly coercion) and fraud against lawyer [A.] . On 27 April 2021, searches were conducted at four different residential and business premises of the complainant. Electronic and physical correspondence as well as documents were seized. On the same day, the complainant applied for the sealing of the seized documents.
On 14 May 2021, the Public Prosecutor’s Office applied for the unsealing and examination of the seized items. On 2 November 2021, the Cantonal Compulsory Measures Judge of St. Gallen issued a decision ordering the unsealing of certain documents while others remained sealed and were to be returned to the complainant upon finality. The complainant filed an appeal in criminal matters with the Federal Supreme Court, seeking the annulment of the cantonal decision and the refusal of the unsealing of the seized documents. The lower court declined to submit a response, while the Public Prosecutor’s Office requested the dismissal of the appeal. On 18 January 2022, the Federal Supreme Court granted the appeal suspensive effect and invited the complainant to file a reply.
Considerations
1. Admissibility of the appeal and right to be heard
The Federal Supreme Court examines the appeal in criminal matters for violations of federal law and international law (Art. 95 lit. a and b FSCA). The complainant alleges that the unsealing violates his confidentiality rights (bank secrecy, business secrets, privacy). The Federal Supreme Court considers the appeal admissible as there is a risk of irreparable harm (Art. 93 para. 1 lit. a FSCA). However, the complainant’s duty to substantiate is not fully met, particularly with regard to the lower court’s reasoning. No violation of the right to be heard (Art. 29 para. 2 Cst.) is found, as the lower court fulfilled its duty to state reasons and the complainant had the opportunity to comment.
2. Duty of record-keeping and right to inspect files
The complainant alleges that the lower court violated its duty of record-keeping as the search warrants were not in the files. The Federal Supreme Court clarifies that the lower court cannot examine files it does not possess. No violation of the right to inspect files exists, as the Public Prosecutor’s Office claims the warrants are in its files and the complainant does not dispute this. Moreover, the admissibility of searches is to be reviewed by the trial court, not the unsealing court.
3. Admissibility of preliminary triage and admissibility of evidence
The complainant objects that the criminal authorities carried out an inadmissible preliminary triage of the seized data during the searches. The Federal Supreme Court confirms that a thematic rough review to secure potentially relevant evidence is permissible (Art. 247 para. 2 CrimPC). However, a detailed content-based examination may only take place after the opportunity to comment (Art. 247 para. 1 CrimPC). There is no explicit prohibition on the use of evidence resulting from inadmissible preliminary triage. The lower court did not find a violation of Art. 247 para. 2 CrimPC, and the complainant has not provided any concrete indications of improper actions by the criminal authorities.
4. Right to inspect files before judicial triage and confidentiality interests
The complainant claims that he was not granted access to the sealed documents before the judicial triage, which violates his right to be heard. The Federal Supreme Court clarifies that the holder of seized documents has the procedural obligation to substantiate confidentiality interests sufficiently. Comprehensive access to files is only required in exceptional cases where the affected person provides a plausible reason why they cannot substantiate their confidentiality interests without a full review. The complainant has not demonstrated such an exception. Moreover, the lower court limited the seized documents thematically (e.g. “correspondence relating to [B.] ”), so further inspection was not necessary.
5. Party-public triage hearing and right to be heard
The complainant alleges that the lower court violated his right to a party-public triage hearing. The Federal Supreme Court refers to the fact that the unsealing procedure under Art. 69 para. 3 lit. b CrimPC is…