Before the search: the duty to hand over documents
When the public prosecutor seeks to obtain documents held by a company, it generally orders the company, by means of a simple letter, to hand over the documents within a specified period. This is referred to as a duty to hand over documents.
Companies that do not have the status of an accused are not required to hand over documents if, by doing so, they could incriminate themselves such that they (i) could be held liable under criminal law or (ii) could be held liable under civil law and their interest in protection outweighs the interest in prosecution.
In such cases, a company may refuse to hand over the documents – but it then runs the risk of a search. The law provides for the use of compulsory measures if the holder has refused to hand over the documents or if it may be assumed that an order to hand over the documents would jeopardize the success of the measure.
Searches of company premises
A company’s premises may be searched where, in particular, there are grounds to suspect that forensic evidence or items liable to seizure are located there. As noted above, where the company is not an accused, duty to hand over documents will generally make it possible to avoid a search. At the start of the search, the persons authorised to carry it out must produce the search warrant. In such a situation, the company’s representative is advised to examine the contents of the search warrant carefully and ensure that it does not order any other measures, such as the seizure of certain items.
Where the search concerns documents or data, the law gives the holder the opportunity to comment beforehand on their content. This is of practical importance: in particular, it allows the holder to draw the authority’s attention to the existence of protected documents and, where appropriate, to request that they be placed under seal.
The company must therefore be in a position to react swiftly. As part of its internal organisation, it is advisable to designate in advance the persons authorised to accompany the authorities, review the warrant and coordinate communications with counsels.
Sealing of evidence: essential but limited protection
Where the holder objects to the seizure of certain documents, recordings or other items on a ground provided for in Article 264 of the Swiss Criminal Procedure Code (CrimPC), the criminal justice authority must place them under seal. The request must be made within three days of the items being secured. During this period and following any sealing, the items concerned may neither be inspected nor used by the criminal justice authority until the seals are removed.
Following an amendment to the Criminal Procedure Code that entered into force on 1 January 2024, and according to recent case law of the Swiss Supreme Court, it is no longer possible to rely indiscriminately on any interest in confidentiality in order to obtain sealing. Subject to certain conditions, sealing may only be obtained for the documents referred to in Article 264 CrimPC, namely:
- documents used in communications between the accused and his or her defence lawyer;
- personal records and correspondence belonging to the accused – where the interest in protecting his or her privacy outweighs the interest in prosecution;
- items and documents used in communications between the accused and persons who may refuse to testify – provided that such persons are not accused of an offence relating to the same case;
- items and documents used in communications between another person and his or her lawyer – provided that the lawyer is entitled to represent clients before Swiss courts and is not accused of an offence relating to the same case.
Trade secrets in the broad sense and banking secrecy therefore no longer constitute, on their own, grounds for obtaining sealing.
Sealing may be requested by the holder of the documents (for example, a bank), but also by their proprietor (the bank’s client). The request must be substantiated and credibly explain why the seized documents are excluded from seizure under one of the four categories referred to above.
Removal of the seals
Once the documents and items have been placed under seal, the public prosecutor has 20 days to file a request for the removal of the seals with the compulsory measures court. In the absence of such a request, the documents and items are returned to their original holder.
In proceedings for the removal of seals, the compulsory measures court generally examines each document to determine whether it is covered by Article 264 CrimPC and is therefore excluded from seizure or whether, on the contrary, it must be admitted to the proceedings. Depending on the volume of documents involved, this procedure may take several months. In practice, courts seek pragmatic ways of handling proceedings for the removal of seals, which sometimes involve a degree of bargaining. The public prosecutor and the parties may thus agree on criteria for selecting documents. A party may also voluntarily provide certain documents to the public prosecutor in exchange for the latter refraining from seeking the removal of the seals.
The purpose of proceedings for the removal of seals is not to ensure the lawfulness of a seizure generally (in particular, compliance with the principle of proportionality). They are limited to determining whether the seized documents fall within one of the four categories of protected documents (grounds precluding seizure within the meaning of Art. 264 CrimPC).
Difficulty in obtaining sealing
Case law is relatively stringent towards parties requesting sealing. Such parties must substantiate their request and credibly explain why the documents are excluded from seizure because they are covered by Article 264 CrimPC. This is inherently difficult, as it requires confidentiality to be justified without revealing its content. For example, communications with a lawyer are protected only where the lawyer is carrying out what is known as a “typical” legal activity (legal analysis or representation in court – but not company administration, financial intermediation or fiduciary activities).
While sealing remains an essential protective tool, its scope has gradually narrowed as a result of recent legislative and case-law developments. More than ever, companies must therefore be prepared and familiar with the steps to take when faced with a search.
In this legal context, it is essential that company representatives be familiar with the four categories of documents referred to above, as they determine the conditions under which sealing may be obtained.
A rigorous system for organising information within the company is also a valuable asset. It facilitates the identification of documents that may be excluded from seizure and helps ensure that only those specified in the seizure order are actually handed over.
Julien Le Fort
Associate, Geneva
&
Théo Goetschin
Counsel, Geneva
White-Collar Crime (Head of Practice)
