Authorization to file a sealing request by non-accused secret holders in criminal proceedings

Facts

On 15 December 2009, the St. Gallen Public Prosecutor’s Office filed an indictment with the Werdenberg-Sarganserland District Court against lawyer X. for multiple offences under the UCA (SR 241). X. was suspected of having participated in the creation of mass mailings containing unfair and fraudulent content and in concealing the origin and flow of funds obtained through these actions. On 7 June 2012, the District Court dismissed the indictment. The Public Prosecutor’s Office later expanded the criminal proceedings to include the offences of commercial fraud and aggravated money laundering.

On 16 October 2012, Y., X.’s former chauffeur, informed the Public Prosecutor’s Office by telephone that he had data received from X. to be disposed of. Y. provided the Public Prosecutor’s Office with an internet link granting access to the data stored on a server. After a preliminary review and sorting of the relevant data, the Public Prosecutor’s Office disclosed the complete data set to X. as well as the data intended for the case file. In a letter dated 22 January 2013, X. requested that the documents be fully removed from the investigation files and immediately sealed pursuant to Art. 248 CrimPC. On 5 February 2013, the Public Prosecutor’s Office sealed the data carriers and folders containing printed data.

On 7 February 2013, the Public Prosecutor’s Office filed an application with the Cantonal Coercive Measures Court for unsealing and search. The Cantonal Coercive Measures Court granted X. the right to be heard and conducted a second exchange of written submissions. X. argued that the data had been illicitly obtained by Y., who had also extorted him. Criminal proceedings were pending against Y. In a decision dated 4 June 2013, the Cantonal Coercive Measures Court rejected the Public Prosecutor’s Office’s request and ordered the release of the sealed data carriers to X. as well as the destruction of the sealed folders containing printed data. The court held that there was insufficient suspicion regarding the allegations.

With an appeal in criminal matters dated 2 July 2013, the Public Prosecutor’s Office appealed to the Federal Supreme Court to set aside the decision of the Cantonal Coercive Measures Court and release the sealed items for inclusion in the case file. The Federal Supreme Court dismissed the appeal.

Considerations

The Federal Supreme Court examined the Public Prosecutor’s Office’s appeal and confirmed the lawfulness of the sealing by the accused lawyer X. The central legal issue concerned the authorization to file a sealing request pursuant to Art. 248 para. 1 CrimPC and the distinction from the prohibitions on seizure under Art. 264 CrimPC.

1. Interpretation of Art. 248 para. 1 CrimPC and relationship to Art. 264 CrimPC: The Federal Supreme Court clarified that the right to sealing pursuant to Art. 248 para. 1 CrimPC must be aligned with the right to object to seizure pursuant to Art. 264 para. 3 CrimPC. Authorized to file a sealing request are not only the holder of actual control over the records, but also persons who, regardless of possession, have a legally protected interest in the confidentiality of the content of the records. This includes in particular the accused person as well as persons entitled to refuse to give evidence pursuant to Art. 170–173 CrimPC.

2. Fundamental rights protection and proportionality Searching private records affects the right to privacy pursuant to Art. 13 Cst. and, in the case of professional secrets, economic freedom pursuant to Art. 27 Cst.. Interferences with fundamental rights are only permissible if they are based on a legal basis, serve a public interest, are proportionate and preserve the core content of the fundamental right. The Federal Supreme Court emphasized that sealing as an immediate measure is intended to ensure that nothing is searched, reviewed or used by the criminal authorities that may not be seized for reasons of secrecy protection pursuant to Art. 264 para. 1 CrimPC. A search against the express will of the person concerned constitutes an interference with their constitutionally protected right to privacy, regardless of how the criminal authorities obtained possession of the documents.

3. Authorization to file a sealing request The Federal Supreme Court rejected the appellant’s view that only the holder of actual control is authorized to request sealing. Rather, the authorization to file a sealing request must be interpreted broadly to…