Exemption from Official Secrecy for the Swiss Federal Prosecutor's Office

Facts

The Federal Department of Defence, Civil Protection and Sports (DDPS) conducted an administrative investigation under the direction of Professor Dr. Rainer Schweizer to clarify contacts between the Swiss military intelligence service and South Africa from 1982 to 1998. At the same time, the Swiss Federal Prosecutor's Office conducted a judicial police investigation against unknown persons on suspicion of prohibited intelligence activities and violations of the ABC Ordinance, the Goods Control Act, and the War Material Act.

Professor Schweizer requested the Swiss Federal Prosecutor's Office to inspect the documents of the ongoing investigation and provide information on five questions. The Swiss Federal Prosecutor's Office then requested the Indictment Chamber of the Federal Court to exempt the lead deputy public prosecutor, Dr. Hansjörg Stadler, from his duty to maintain official secrecy in order to provide the requested information and access to the files for the DDPS administrative procedure.

Considerations

The Indictment Chamber of the Federal Court exercised supervision over the Federal Prosecutor in his function as head of the judicial police as well as over the investigations of the judicial police (Art. 11 FCJA). The Federal Prosecutor and his representatives are only administratively subject to the supervision of the Federal Council (Art. 14 para. 1 FCJA). Consequently, the Indictment Chamber is the superior authority within the meaning of Art. 320 no. 2 SCC, which must decide whether the Federal Prosecutor or his representatives are to be exempted from official secrecy for the knowledge gained in the course of a judicial police investigation.

There is a direct connection between the investigations of the applicant and the administrative investigation by Professor Schweizer, as it concerns contacts between employees of the South African military and military intelligence or South African companies and the DDPS. The information and documents requested by Professor Schweizer are necessary to clarify whether DDPS employees have committed any wrongdoing.

The Indictment Chamber decided that the application of the Swiss Federal Prosecutor's Office was well-founded, as the purpose of the investigation conducted by it would not be jeopardized by the disclosure of the information and data protection would be ensured by conditions pursuant to Art. 19 para. 4…