Facts

Parties and procedural context:

The Public Prosecutor’s Office of the Republic and Canton of Geneva is conducting criminal proceedings against the accused for procurement (solicitation of prostitution) (art. 195 SCC) and offences under the Narcotics Act (art. 19 para. 1 TSOA. c and d, para. 2 NarcA). On 8 July 2024, the former wife’s and the accused’s daughter’s residence was searched, and two mobile phones belonging to the accused were seized, along with data extracted from these devices and stored on a hard drive.

By order of 9 July 2024, the Public Prosecutor’s Office ordered the seizure of the two phones and the hard drive. The accused filed an appeal against this order, but the Criminal Appeals Chamber of the Geneva Court of Justice declared the appeal inadmissible by judgment of 6 August 2024.

On 11 July 2024, the accused requested the sealing of the two phones and the hard drive, citing in particular the presence of personal data, exchanges, and a business contract relating to his company. The Public Prosecutor’s Office then applied for the lifting of the seals. By order of 9 August 2024, the Restraining Measures Court (RMC) of Geneva lifted the seals and ordered the transmission of the devices to the Public Prosecutor’s Office.

The accused filed two appeals with the Federal Supreme Court

  • On 6 September 2024 (case 7B_950/2024), against the judgment of the Criminal Appeals Chamber of 6 August 2024, seeking the annulment of this judgment and its referral for a new decision.
  • On 11 September 2024 (case 7B_976/2024), against the RMC’s order of 9 August 2024, seeking the maintenance of the seals or, subsidiarily, the annulment of the order and its referral to the RMC for a new decision.

The Federal Supreme Court joined the two cases and ruled on 15 November 2024.

Considerations

1. Jurisdiction and admissibility of the appeals:

The Federal Supreme Court examines of its own motion its jurisdiction and the admissibility of the appeals. It recalls that appeals against incidental decisions, such as those concerning the lifting of seals, are only admissible if they raise a risk of irreparable harm or concern questions of cantonal law or the admissibility of legal remedies. In the present case, the grievances raised by the accused relate to the proportionality of the search and the relevance of the seized items. These grievances were not examined by the cantonal authorities, which amounts to a denial of justice. The Federal Supreme Court therefore entertains the appeal based on the violation of the accused’s right to be heard.

2. Limitation of grounds for sealing to legally protected secrets:

The Federal Supreme Court recalls that, since the entry into force of the revision of the Criminal Procedure Code (CrimPC) on 1 January 2024, the grounds for requesting sealing are strictly limited to legally protected secrets, as defined in art. 173 para. 2 CrimPC. These secrets include, in particular, the professional secrecy of lawyers, but expressly exclude commercial, business, manufacturing or banking secrecy. This exclusion applies regardless of the procedural status of the holder of the documents (accused or third party).

In the present case, the accused invokes business secrecy and the professional secrecy of lawyers. However, he does not sufficiently demonstrate the existence of a mandate protected by lawyer-client privilege, merely indicating a first name and the generic term “lawyer”. Moreover, he does not explain why his company’s activities would be unrelated to the criminal proceedings. The RMC was therefore justified in considering that the accused had not fulfilled his obligations of cooperation and substantiation.

3. Jurisdiction of the RMC to examine ancillary grievances:

The Federal Supreme Court confirms that the RMC, when seized of a request for lifting of seals based on protected secrets (lawyer-client…