Revocation of the provisional sealing of seized documents and data carriers in administrative penalty proceedings

Facts

The Swiss Agency for Therapeutic Products Swissmedic issued an order on June 10, 2004, in the administrative penalty proceedings against X. and unknown persons due to suspicion of violating the legislation on therapeutic products, to search the premises of Y. AG in Z. and to seize "papiers et autres documents, en particulier de la comptabilité dès 2002 (Art. 50 ACLA)". The house search was carried out on the same day. Various medicinal products, papers, and data carriers were seized. Y. AG and its president, X., jointly filed a complaint with the Complaints Chamber of the FCJA in Bellinzona on June 14, 2004, pursuant to Art. 26 ff. ACLA. They requested, inter alia, that the seizure be revoked and that the seized documents, objects, and information be sealed until the seizure order was revoked. The President of the Complaints Chamber partially granted the request for a stay of proceedings insofar as he considered it. He ordered the provisional sealing of the seized papers and data carriers until a decision was made on the pending complaint.

By complaint pursuant to Art. 33 para. 3 lit. a FCCA and Art. 214 ff. FCJA, Swissmedic requests that this presidential decision be revoked insofar as it orders the provisional sealing of the seized papers and data carriers.

Considerations

The applicable procedural law in the complaint proceedings before the Complaints Chamber is that of Art. 26 ff. ACLA and not Art. 214 ff. FCJA. Swissmedic or any other authority responsible for prosecuting administrative offenses is entitled to file a complaint against decisions of the Complaints Chamber in the same way as the Federal Prosecutor's Office within the meaning of Art. 214 FCJA.

The complaint requires, according to the wording of Art. 33 para. 3 lit. a FCCA, that the Complaints Chamber has ruled on a coercive measure. However, the complaint to be assessed here is not directed against a decision of the Complaints Chamber, but against one of the Chamber President, and thus generally not against a suitable object of appeal.

The provisional sealing of the seized documents and data carriers contested here does not affect the existence of the seizure and is thus…