Use of Evidence Obtained Through Mutual Legal Assistance in Civil Proceedings

Facts

By letter dated August 25, 1997, the "Director of Public Prosecutions" of the Kingdom of Lesotho requested the Swiss authorities for mutual legal assistance in a criminal investigation against M. for theft, fraud, bribery, and perjury. The allegations against M. are related to his role as a managing body of the "Lesotho Highlands Development Authority" (LHDA), whose task was to oversee the execution of the "Lesotho Highlands Water Project". A civil lawsuit is already pending before the High Court of Lesotho, in which the LHDA is asserting claims for damages against M.

The District Attorney's Office ordered the release of the requested documents and imposed a specialty reservation, according to which the knowledge gained here may only be used for the prosecution of the common criminal offenses specified in the request for legal assistance. The P. and the Q. S.A. appealed against this to the High Court of the Canton of Zurich, which dismissed the appeal.

The P. and the Q. S.A. filed an administrative court appeal against the decision of the High Court to the Federal Supreme Court. They requested that the legal assistance be refused or that the specialty reservation be supplemented to prohibit the authorities of Lesotho from using the transmitted evidence in any other criminal proceedings or in civil and administrative proceedings.

Considerations

The Federal Supreme Court dismisses the appeal, insofar as it enters into it. It states that the specialty reservation according to Art. 67 para. 1 IRSG is intended to prevent the criminal use of information for the prosecution of offenses not eligible for legal assistance, but does not generally preclude the civil procedural use of the information obtained in the legal assistance proceedings, provided that it concerns claims of the victim of the criminal offense.

However, the civil procedural use of the information is generally subject to the prior consent of the Federal Office of Police according to Art. 67 para. 2 sentence 1 IRSG. The question is whether this consent requirement also…