Facts
Parties and procedural history:
The Office of the Attorney General of the Canton of Zurich (appellant in proceedings 6B_825/2019) and appellant [A.] (police officer of the Zurich City Police, appellant in proceedings 6B_845/2019) appealed the judgment of the Higher Court of the Canton of Zurich of 7 March 2019, which convicted the appellant of multiple breaches of official secrecy (Art. 320 SCC) and bribery (Art. 322quater SCC) to a suspended fine of 160 daily rates of CHF 120.--, but acquitted him of the charge of multiple abuse of authority (Art. 312 SCC).
Factual background:
The appellant, a police officer of the Zurich City Police, was accused of violating his official duties in several instances:
- Count 1.1: Unauthorized access to the Police Information System (POLIS) and disclosure to [B.] that no entries existed for [D.] , as well as demanding sexual favours in return.
- Count 1.2: Disclosure to a private individual that a burglary had occurred at a bar and that he, as an intern at the Forensic Institute, had secured the evidence, although the individual was already aware of the burglary.
- Count 1.4:
The District Court of Zurich partially acquitted the appellant at first instance and convicted him of breach of official secrecy (Counts 1.1, 1.2 and 1.4) and bribery (Count 1.4) to a suspended fine. The Higher Court of the Canton of Zurich upheld this judgment on appeal but set aside the discontinuation of proceedings regarding Count 1.3 (sexual favours in exchange for POLIS access) and acquitted the appellant of the charge of abuse of authority.
Legal remedies:
The Office of the Attorney General challenged the acquittals on the charge of multiple abuse of authority and sought the reversal of the judgment and referral back to the lower court (6B_825/2019). The appellant appealed the conviction for breach of official secrecy and bribery and sought his acquittal and compensation (6B_845/2019).
Considerations
1. Assessment of evidence and admissibility of data retrieval:
The Federal Supreme Court confirmed the lower court’s assessment that the second evaluation of data from the appellant’s seized smartphone – in particular the restoration of deleted data – did not constitute a new coercive measure within the meaning of Art. 196 lit. a CrimPC. It was merely a further evaluation of already seized evidence, for which neither a new search warrant nor the appellant’s consent was required. The prosecution was entitled to re-examine the already secured data, particularly since the initial extraction had been lawful and the data was stored on a seized hard drive. The restoration of deleted data did not trigger a new transmission process and did not constitute interception of telecommunications (Arts. 269 et seq. CrimPC), as the communication process had already been completed. The lower court had also adequately informed the appellant of his right to seal the evidence, rendering the evidence admissible.
2. Breach of official secrecy (Art. 320 SCC):
The Federal Supreme Court upheld the conviction for multiple breaches of official secrecy in Counts 1.1, 1.2 and 1.4. The disclosure of POLIS information to third parties without official justification or authorization constituted a breach of secrecy concerning information entrusted to or perceived by the appellant in his official capacity. The affected information – such as the absence of entries for a person in POLIS or participation in evidence collection – was neither obvious nor publicly accessible and was therefore protected by criminal secrecy provisions. The appellant acted with conditional intent, as he was aware of the confidential nature of the information and disclosed it nonetheless. No justification existed, particularly as he could not rely on the cantonal principle of public access (IDG/ZH), since the POLIS ordinance and data protection law imposed clear restrictions on confidentiality obligations.
3. Bribery (Art. 322quater SCC):
The conviction for bribery in Count 1.4 was upheld. The appellant had demanded sexual favours from [C.] in exchange for providing POLIS data. This demand constituted an undue advantage within the meaning of Art. 322quater SCC, as it was linked to a duty-violating act (breach of official secrecy). The offence also covers intangible…