Partial Unsealing of Seized Documents and Their Search

Facts

Parties: Public Prosecutor's Office of Basel-Landschaft (Appellant) against [A.] (Appellee).

Court: Federal Supreme Court, I. Public Law Division.

Date of Judgment: August 22, 2014.

Background: The Public Prosecutor's Office of Basel-Landschaft conducted a criminal investigation against [A.] for misappropriation of leased vehicles. On December 5, 2012, various documents and electronic data carriers were seized and sealed during a house search. On January 30, 2013, and March 13, 2013, partial unsealing decisions were made, which have become final. On January 10, 2014, the Coercive Measures Court authorized the unsealing of part of the remaining documents and ordered that the Public Prosecutor's Office, upon receipt of the unsealed documents, was to review them and decide which documents were still needed for the criminal proceedings and to definitively seize them.

Appeal: The Public Prosecutor's Office appealed against the decision of the Coercive Measures Court of January 10, 2014, with the request to lift point 4 of the operative part of the contested decision and to establish that the search and seizure order of the Public Prosecutor's Office of Basel-Landschaft of November 30, 2012, as well as the search and seizure protocols issued thereon of December 5, 2012, have become final.

Considerations

The prosecuting authority conducting the proceedings is generally entitled to appeal in criminal matters against decisions on contested investigative measures (Art. 81 lit. a and lit. b No. 3 FSCA; Art. 16 in conjunction with Art. 308 para. 1 and Art. 311 para. 1 CrimPC). The Public Prosecutor's Office argues that on November 30, 2012, it issued a final search and seizure order. The provision in the contested decision that the Public Prosecutor's Office must "again" review the unsealed documents and decide on their definitive seizure violates federal law. The view of the lower court that only a provisional seizure took place on December 5, 2012, cannot be reconciled with the provisions of the CrimPC.

The law provides that house searches are ordered in a written order, which in particular designates the premises to be searched (Art. 241 para. 1 and para. 2 lit. a CrimPC). The authorities or persons carrying out the search take appropriate security measures to achieve the objective of the measure (Art. 242 para. 1 CrimPC). If records are provisionally secured during the house search (Art. 263 para. 3 CrimPC), the provisions of the 3rd section in the 4th chapter of the 5th title of the CrimPC on the "search of records" (Art. 246-248 CrimPC) apply. The provisionally secured documents or electronic data carriers may be searched by the investigating authorities if it is suspected that they contain information that is subject to seizure (Art. 246 CrimPC).

In the contested decision, the Coercive Measures Court authorized the unsealing of part of the secured records and…