Facts

Parties and procedural history:

The Office of the Attorney General of Switzerland (OAG) is conducting a criminal investigation against B. and other accused persons for aggravated fraud and aggravated money laundering. The accused A. AG was issued production orders to secure bank documents relating to its business relationships:

  • On 12 April 2021, the OAG issued production orders to two banks for account documents, which were released to the OAG on 23 and 27 April and 26 May 2021.
  • Further production orders dated 27 October 2023 required the banks to release additional documents. These orders were served on [A. AG] on 31 October 2023.

[A. AG] applied for the sealing of the produced documents on 6 November 2023. The OAG rejected this with a ruling dated 14 November 2023. [A. AG] appealed against this, whereupon the Federal Criminal Court ordered sealing with a decision dated 28 December 2023. The OAG sealed the documents on 5 January 2024.

On 17 January 2024, the OAG applied to the Canton of Bern Coercive Measures Court (CMC) for the unsealing of the documents. The CMC granted the application with a decision dated 13 February 2024 and authorised the OAG to search the unsealed documents. [A. AG] appealed against this decision to the Federal Supreme Court on 14 March 2024.

Legal recourse and applicable law:

The CMC’s decision of 13 February 2024 was governed by the revised Criminal Procedure Code (CrimPC), which entered into force on 1 January 2024. [A. AG] argued that the old law should have applied to the examination of its sealing request of 6 November 2023. It also invoked trade secrets and banking secrecy as obstacles to unsealing.

Considerations

Applicability of revised criminal procedure law:

The Federal Supreme Court confirmed that the revised unsealing provisions (Art. 248 CrimPC) applied to the contested CMC decision of 13 February 2024. The intertemporal provisions of the CrimPC provide that new procedural rules apply to ongoing proceedings unless final decisions have already been issued. A. AG’s sealing request of 6 November 2023 had already been finally decided by the Federal Criminal Court with a decision dated 28 December 2023 and had become final. [A. AG] could therefore not rely on the old law.

No protection of trade secrets or banking secrecy in unsealing proceedings:

The revised Art. 248 para. 1 CrimPC defines the protected interests that may constitute obstacles to unsealing exhaustively. Only the grounds for refusal of seizure set out in Art. 264 CrimPC are relevant. Trade secrets and banking secrecy (Art. 47 BankA) are not included. The legislature deliberately opted for a restrictive solution and did not include in the catalogue of protected secrets the extensions discussed during the legislative process (e.g. protection of manufacturing and trade secrets). The appellant was therefore unable to assert any protectable secret rights in the unsealing proceedings.

Ancillary examination of general coercive measures requirements:

[A. AG] argued that there was insufficient probable cause and that the sealed…