Under Swiss law, the sealing of evidence is a procedural tool available for the purposes of paralysing the effects of a criminal seizure or production order, where there is a need to preserve a particular secret surrounding documents or data that the criminal authorities would otherwise be able to access, introduce into the file of the proceedings and exploit as a means of evidence.
The sealing of evidence applies at any stage of criminal proceedings, including during the trial before the court. However, it is most relevant in practice during the investigation phase, conducted either by the Public Prosecutor's Office (PPO) or by the Federal Office of the Attorney General (OAG).
The sealing of evidence
Who can request it?
The Federal Code of Criminal Procedure (CCP) provides that the right to request the sealing of evidence belongs to the holder of the relevant document or data. However, case law has extended such right to any person who enjoys a legally-protected interest in maintaining secrecy. As a result, those who are entitled to refuse to testify or to otherwise resist compulsory disclosure of information have the right to request the sealing of evidence, irrespective of whether the evidence in question is actually under their control.
For example, if correspondence covered by attorney-client privilege is seized by the prosecution authority, both the attorney and the client may request the sealing of such correspondence, including where it is held by a third party.
The prosecution authority has a duty to adequately inform all interested persons of their right to request the sealing. For the purposes of identifying such persons, the prosecution authority is allowed to proceed with a cursory review of the seized documents or data and may even be expected, in certain circumstances, to request the sealing or set aside certain privileged documents ex officio.
The broad approach applied under the CCP has not been followed in the context of the Federal Act on Administrative Criminal Law (ACLA), which notably applies to the prosecution and the sentencing of offences related to anti-money laundering reporting duties or tax and cartel-related offences. Under the ACLA, the sealing request can only be lodged by the immediate holder of the evidence, as opposed to any other interested party.
On what material grounds can the sealing of evidence be obtained?
Under the CCP, evidence must be sealed on the request of any person who may invoke the benefit of a legally protected secret.
Of particular importance is the protection afforded by "professional" or "function" secrecy. The holders of a function secrecy, such as public officials, may assert their right of refusal to testify, provided they are not under an obligation to report a criminal offence and/or have not been expressly relieved of their duty of confidentiality.
In this respect, attorney-client privilege enjoys the utmost protection. For example, an attorney cannot be forced (either by the authorities or by the client) to divulge privileged information, even where he/she is released from his/her duty of confidentiality. However...