Facts
The complainant A. was subjected to a customs inspection at Zurich Airport on 10 September 2020, during which twelve Rolex watches, purchase receipts and invoices were seized. In addition, two mobile phones and a tablet were provisionally seized. A. refused to disclose the access codes to the devices and applied for the sealing of the IT devices on 14 September 2020 on the grounds that they contained confidential lawyer correspondence, highly personal information and trade secrets.
On 1 October 2020, the customs administration forwarded the devices to the Federal Office of Police (fedpol) with the instruction to unlock the devices, carry out forensic data mirroring and then seal them. The sealing took place on 5 November 2020 by fedpol, whereupon the customs administration filed an application for unsealing with the Federal Criminal Court on 8 October 2020. The Federal Criminal Court granted the application on 14 July 2021 and authorised the customs administration to search the data. A. filed an appeal against this decision with the Federal Supreme Court and requested that the decision be set aside and the matter referred back to the Federal Criminal Court. He also demanded the destruction of the mirrored data and the return of the devices.
Considerations
The Federal Supreme Court examined the legality of the sealing and unsealing of electronic devices in administrative criminal proceedings. It found that the purpose of sealing is to prevent the investigating authority from gaining access to the seized data before a judicial decision on the admissibility of data access. This serves in particular to safeguard the constitutional rights of the accused, in particular the principle of nemo tenetur se detegere and the protection of privacy under Art. 13 Cst.
The Federal Supreme Court criticised the practice of the Federal Criminal Court, which permits forensic data mirroring by the investigating authority or an authority commissioned by it prior to sealing. Such a procedure risks enabling the investigating authority to gain premature access to the data, thereby undermining the purpose of sealing. The Federal Supreme Court emphasised that sealing must take place without delay after receipt of a corresponding application and that data mirroring may only be carried out by an independent body, such as the coercive measures court or a specialist commissioned by it. The investigating authority must not in any way be involved in the unlocking and mirroring of the data as real acts.
In the present case, the complainant’s devices remained unsealed in the hands of the customs administration or the fedpol…