Facts

Parties and procedural history:

The Swiss Federal Tax Administration (SFTA) is conducting a criminal investigation against B. Inc. and the natural persons C.C. and D.C. on suspicion of tax evasion or continued evasion of large tax amounts. On 10 November 2021, the SFTA requested Bank E. to provide documents relating to accounts held for C.C. as contracting party, beneficial owner or authorised signatory during the period from 1 January 2012 to 31 December 2015. Bank E. transmitted the requested documents to the SFTA electronically on 25 November 2021.

The A. AG, which had been informed by Bank E. of the production order on 18 November 2021, filed an objection against the search of the produced documents on 23 November 2021 on the grounds that they might contain trade secrets. The SFTA rejected A. AG’s entitlement to sealing by order of 9 December 2021. The Appeals Chamber of the Federal Criminal Court dismissed A. AG’s appeal on 14 July 2022. The Federal Supreme Court quashed this judgment with judgment 7B_97/2022 of 28 September 2023 and ordered the SFTA to initiate a formal unsealing procedure before the Appeals Chamber and to involve A. AG in the process.

On 6 November 2023, the SFTA filed an unsealing request with the Appeals Chamber of the Federal Criminal Court and sought authorisation to unseal and search the sealed bank documents. The Appeals Chamber dismissed the request by decision of 3 April 2024. The SFTA appealed this decision to the Federal Supreme Court in criminal matters. A. AG applied for dismissal of the appeal, while the lower court did not submit a response.

Main point of contention: The SFTA seeks the reversal of the Appeals Chamber’s dismissive decision and authorisation to unseal and search the sealed bank documents. The central issue is whether the SFTA was entitled to store the electronically transmitted bank documents on an external data carrier prior to sealing and to seal that data carrier without violating the prohibition on premature knowledge of data.

Considerations

The Federal Supreme Court examines in its decision whether the investigating authority (SFTA) is entitled to store electronically transmitted bank documents on an external data carrier prior to sealing and to seal that data carrier. The lower court had considered this inadmissible with reference to Federal Supreme Court case law (in particular BGE 148 IV 221), as such a procedure would allow the investigating authority premature access to the data and thus jeopardise the purpose of sealing – the exclusion of any opportunity for knowledge until the judicial decision.

The Federal Supreme Court disagrees with this view and states that the present case differs in essential respects from the case BGE 148 IV 221. Unlike that case, where the investigating authority itself had carried out data mirroring, here it concerns the securing of data that had already been transmitted by the bank to the SFTA pursuant to the production order under Art. 46 para. 1 lit. a and Art. 47 para. 1 ACLA. The transmission, downloading and saving of the data by the SFTA are part of the securing process and thus the preliminary securing of the data. A sealing request already filed by A. AG does not prevent the transfer of custody of the sealed data to the investigating authority.

The Federal Supreme Court emphasises that the investigating authority is entitled, as part of the preliminary securing, to carry out a rough thematic review of the data to examine their relevance to the proceedings. This authority also applies to electronic data and serves to ensure that only potentially investigation-relevant data are secured. Such a rough review is compatible with the prohibition on…