Facts

On 14 February 2014, the Public Prosecutor’s Office of the Republic and Canton of Neuchâtel opened a criminal investigation against employee A., head of purchasing at B. SA, a company active in watchmaking, for passive bribery (Art. 4a para. 1 TSOA. b UCA) and, potentially, for breach of trust (Art. 158 SCC). The alleged acts, which occurred between 2008 and 2014 in U. (NE), involved receiving payments from Chinese suppliers (notably in Hong Kong) totalling approximately 5 million Swiss francs, in exchange for orders or the continuation of collaborations with B. SA.

Subsequently, criminal complaints filed by B. SA and C. Ltd (another company in the same sector) led to the extension of the investigation against E., a shareholder in subcontracting companies in Hong Kong, for active bribery (Art. 4a para. 1 TSOA. a UCA) and, potentially, complicity in breach of trust (Art. 25 SCC in conjunction with Art. 158 SCC).

During the investigation, on 31 August 2016, the Public Prosecutor’s Office ordered [B. SA] to produce a report prepared by [F. AG] on the ice cream market (hereinafter: the [F.] report). This document, which [B. SA] claimed contained extremely important trade secrets, was submitted in a redacted version. On 13 February 2017, [A.], through his defence counsel, proposed that the representatives be authorised to consult the unredacted report, subject to the protection of trade secrets.

On 23 November 2018, the Public Prosecutor’s Office issued a decision restricting access to the [F.] report:

  1. Consultation by all parties is limited to the redacted version submitted by the complainants;
  2. The original report is accessible only to the defendants’ lawyers, under the supervision of the case management and the complainants’ representative;
  3. Authorised persons may not disclose its contents to their respective clients;
  4. No copies of the document may be made;
  5. The consultation arrangements are subject to the penalty of Art. 292 SCC in case of non-compliance.

The Appeal Authority in Criminal Matters of the Neuchâtel Cantonal Court upheld this decision by judgment of 27 August 2019. [A.] appealed to the Federal Supreme Court, contesting in particular the prohibition on his defence counsel communicating the contents of the [F.] report to him and the threat of Art. 292 SCC. [B. SA] and C. Ltd argued that the appeal was inadmissible or, in the alternative, should be dismissed, while requesting the return of the unredacted [F.] report.

Considerations

The Federal Supreme Court first recalls that the right to be heard, guaranteed by Art. 29 para. 2 Fed. Const. and implemented by Art. 3 para. 2 TSOA. c CrimPC and Art. 101 para. 1 CrimPC, includes the right for the parties to examine the criminal file. However, this right is not absolute, as Art. 108 CrimPC allows criminal authorities to restrict access to the file where there are good grounds for suspecting an abuse of rights by a party or where this is necessary to protect public or private interests, including trade secrets. Such restrictions must be ordered sparingly and proportionately (consideration 3.1.1 and 3.1.2).

The Federal Supreme Court then emphasises that, in the context of a restriction on access to the file, the obligation of silence imposed on the lawyer vis-à-vis his client may conflict with the professional rules governing the legal profession, in particular the duties of loyalty and diligence (Art. 398 para. 2 CO and Art. 12 FMLA). The lawyer must be able to advise his client effectively, which requires communicating relevant elements of the file to him, including those unfavourable to his case. An outright prohibition on communicating such elements constitutes a disproportionate restriction on the right of access to the file and violates federal law (consideration 3.2.2).

The Federal Supreme Court clarifies that Art. 73 para. 2 CrimPC, which provides for an obligation of silence regarding the proceedings…