Facts
The Public Prosecutor's Office in Mannheim is conducting an investigation against Y., who is resident in Switzerland, on suspicion of tax evasion, in particular of import turnover tax. By a request for mutual legal assistance dated 27 December 2010, supplemented on 28 February 2011, it asked the Swiss authorities to conduct searches and hear witnesses. The Federal Office of Justice transferred the execution of the request for mutual legal assistance to the Federal Customs Administration (Federal Customs Directorate). On 4 May 2011, it conducted a house search at X. SA in Lugano and sealed documents. On 30 May 2011, the Federal Customs Directorate requested the 2nd Appeals Chamber of the Federal Criminal Court to unseal the documents. The Federal Supreme Court upholds the appeals of the Federal Customs Directorate and the Federal Office of Justice and refers the matter back to the Federal Criminal Court for a decision on the request for unsealing.Considerations
The Federal Supreme Court decides that the Appeals Chamber of the Federal Criminal Court is competent to decide on the request for unsealing. This results from an interpretation of the relevant provisions:
Pursuant to Art. 12(1) IMAC, the procedural law applicable in criminal matters shall apply to procedural acts. Since the prosecution and adjudication of offences has been transferred to the Federal Customs Directorate, the Federal Act on Administrative Criminal Law (ACLA) applies. This provides in Art. 50(3) that the Appeals Chamber of the Federal Criminal Court shall decide on the admissibility of searches.
However, Art. 9 sentence 2 IMAC refers to the provisions of the Criminal Procedure Code (CrimPC) on the search of records and sealing. Pursuant to Art. 248(3) CrimPC, the compulsory measures court decides on requests for unsealing in…