Refusal of the federal authority to communicate information to a cantonal judge in the context of a criminal investigation

Facts

The company BEM S.A., holder of a patent, filed a criminal complaint against Joseph Spicher of the company Geveral S.A. for unfair competition and violation of the Patents Act. In the context of this investigation, the investigating judge of the canton of Vaud requested the Federal Military Department for information on a possible authorization granted to a third party for the manufacture and export of a product covered by the patent of BEM S.A. The Military Department refused to provide this information, invoking the official secrecy provided for in Art. 320 SCC and Arts. 27 and 28 of the Federal Personnel Act (FPA). The investigating judge of the canton of Vaud then brought the matter before the SFC, concluding that the Military Department should be required to provide the requested information.

Considerations

The SFC ruled that the investigating judge's request was inadmissible. It considered that Art. 28 FPA confers on the competent federal administrative authority the right to grant or refuse authorization to a civil servant to testify or to communicate documents, and that this decision is binding on the cantonal judicial authorities. To accept that the canton could obtain the annulment of this decision…