Facts
The case concerns a police officer (X.) who had recorded a telephone conversation between the police chief (N.) and a police corporal (R.) during his night shift. In this conversation, the police chief mentioned that he had received a complaint from Mr. Z. from the Paraclub Rätia against a certain Mr. S. for lack of a required flight permit.
In the fall of 1985, X. played an excerpt from this tape recording in his apartment before the investigating judge A. and his friend J. Furthermore, he entrusted the tape cassette to lawyer B., the then president of the Chur section of the Association of Swiss Police Officers, between March 11 and 17, 1986.
X. was subsequently convicted by the Chur District Court Committee for repeated breach of official secrecy under Art. 320 para. 1 no. 1 of the Swiss Criminal Code to a conditional fine of 300 Swiss francs. The appellant's appeal was dismissed by the Graubünden Cantonal Court Committee.
Considerations
The Federal Supreme Court states that the fact of the complaint by Z. against S. was a secret, as the parties had a legitimate interest in keeping it confidential and Z. had declared the will to keep it secret. Even though the fact was known to some police officers and a limited circle of third parties, it was neither obvious nor generally accessible according to the binding findings of the lower court.
The disclosure of this fact to A. and J. as well as to B. constitutes a breach of official secrecy under Art. 320 of the Swiss Criminal Code, even though A. and B. were subject to a duty of confidentiality. The communication would only not have…