Facts
The Swiss Federal Prosecutor's Office opened a judicial police investigation on 6 February 2010 against unknown persons on suspicion of economic espionage (Art. 273 SCC), unauthorised data procurement (Art. 143 SCC), theft (Art. 139 SCC), embezzlement (Art. 138 SCC), breach of business secrets (Art. 162 SCC) and breach of banking secrecy (Art. 47 BankA). The suspicion related to the sale of bank customer data of German taxpayers by a Swiss major bank to German tax authorities for remuneration.
During the proceedings, Y., a former employee of the A. Bank, and C.X. were identified as suspects. Y. admitted having procured data on German bank customers and internal bank documents during his employment at the A. Bank and handing them over to C.X. C.X. was accused of having sold the data to German tax authorities for 2.5 million euros. The purchase price was partially transferred to accounts of C.X. at banks in Austria and the Czech Republic.
C.X. died on 28/29 September 2010 while in pre-trial detention. The Federal Prosecutor's Office discontinued the proceedings against him pursuant to Art. 319 para. 1 lit. d CrimPC and ordered the confiscation of cash, a wristwatch and assets held in accounts of C.X. at various banks in Germany, Austria and the Czech Republic. The parents and sole heirs of C.X., A.X. and B.X., filed an appeal against this order and requested that the confiscation be waived or at least that the confiscation of the assets seized in accounts of Austrian banks be suspended.
The Federal Criminal Court partially granted the appeal and ordered that certain assets not be confiscated due to lack of evidence of the required connection to a criminal offence. In all other respects, it dismissed the appeal. A.X. and B.X. then filed an appeal in criminal matters with the Federal Supreme Court and requested that the confiscation of the seized assets be waived or at least that the confiscation of the assets seized in Austria be dispensed with.
Considerations
1. Criminal liability for the sale of bank customer data The Federal Supreme Court confirms the lower court's ruling that the sale of bank customer data of German customers of a Swiss bank to German tax authorities constitutes the offence of economic espionage (Art. 273 para. 2 SCC). The variant of the offence of making a business secret accessible to a foreign official body is fulfilled, regardless of whether the data was previously procured by espionage. The transfer of data relating to numerous bank customers affects not only the individual business secrets of the customers but also the collective interests of the Swiss financial centre, in particular banking secrecy (Art. 47 BankA).
2. Applicability of Swiss criminal law The Federal Supreme Court confirms the applicability of Swiss criminal law pursuant to the protection of the state principle (Art. 4 SCC), as economic espionage falls within Swiss criminal jurisdiction regardless of the place of the offence and the nationality of the offender. The conduct of C.X. was unlawful and met the elements of the offence, as there were no grounds for justification. The complainants' arguments that the offence was committed abroad and therefore did not fall under Swiss law were rejected.
3. Confiscation of the sale proceeds The confiscation of the sale proceeds is governed by Art. 70 para. 1 SCC, which provides for the confiscation of assets obtained through a criminal offence. Confiscation is possible even without a conviction of the offender, in particular if the offender has died. The heirs of C.X., A.X. and B.X., are not third parties within the meaning of Art. 70 para. 2 SCC, as they acquired the assets gratuitously. The…