Facts

Parties: Public Prosecutor's Office of the Canton of Zurich (appellant) against [A.] (respondent) and [B.] (as private plaintiff).

Subject: Criminal proceedings; inadmissibility of evidence.

Facts:

  • On September 11, 2012, a critical article about [B.] appeared in the newspaper "Tagesanzeiger".
  • The University of Zurich filed a criminal complaint for violation of official secrecy.
  • The Public Prosecutor's Office initiated a criminal investigation and collected data from telephone and e-mail traffic of the university.
  • On November 14, 2012, house searches were conducted and evidence was secured.
  • The Public Prosecutor's Office filed charges against [A.] for multiple violations of official secrecy.
  • The District Court of Zurich acquitted [A.] as the evidence was not admissible.
  • The Higher Court confirmed the inadmissibility of the evidence.
  • The Public Prosecutor's Office filed an appeal with the Federal Supreme Court.

Considerations

The lower court concluded that the Public Prosecutor's Office had unlawfully collected evidence. The collection of telephone and e-mail contact data as well as the contents of certain e-mails at the University of Zurich or the Higher Education Office was disproportionate, as not only suspects but also non-suspects were affected. Furthermore, the Public Prosecutor's Office could only have collected the telecommunication data in accordance with the provisions governing secret surveillance measures.

According to Art. 139 para. 1 CrimPC, the criminal authorities use all evidence that is legally permissible and suitable for establishing the truth. Art. 140 CrimPC lists various evidence-gathering methods that are prohibited. Evidence collected in violation of this provision is inadmissible in any case (Art. 141 para. 1 CrimPC).

The collection of telecommunication contact data was only…