Publication of Confidential Information by the Chief of the General Staff

Facts

In January 1987, an operational seminar was held for the Army Staff, which the Chief of the General Staff declared "secret" in its entirety. He also gave a presentation, which was distributed to the participants with the note "confidential". [M.] quoted from this presentation in a weekly newspaper. The District Office of Zurich discontinued the proceedings against [M.] for the publication of official secret proceedings, as it was of the opinion that the Chief of the General Staff was not an authority within the meaning of Art. 293 of the Swiss Criminal Code and that the presentation had not been designated as secret. The Swiss Federal Prosecutor's Office then filed an appeal for nullity.

Considerations

The Federal Court concluded that the Chief of the General Staff, due to his position, tasks and competencies, is a state organ endowed with sovereign functions and therefore an authority within the meaning of Art. 293 para. 1 of the Swiss Criminal Code. The offence under Art. 293 of the Swiss Criminal Code is based on the formal concept of secrecy, so that it is solely a matter of whether the files, proceedings or investigations of the authority have been declared secret by law or by order…