Procedure for lifting seals: Trade secrets, proportionality, and procedural costs charged to a non-accused third party

Swiss Federal Supreme Court, 02.03.2026, 7B_206/2024

Facts

As part of a criminal investigation into fraudulent bankruptcy and fraud in the context of seizure (Art. 163 SCC) conducted against a defendant, B.________, the Public Prosecutor's Office of the Canton of Schwyz ordered the production of documents relating to several bank accounts. The defendant immediately requested that these documents be placed under seal.

In a decision dated September 14, 2022, the Compulsory Measures Court of the Canton of Schwyz granted the Public Prosecutor's request to lift the seals. An appeal filed by the defendant against this decision was declared inadmissible by the Federal Supreme Court.

On October 6, 2023, A.________ S.A., the holder of one of the accounts in question, requested that the related documents be placed under seal. In a decision dated February 9, 2024, the Compulsory Measures Court declined to consider the Public Prosecutor's new request to lift the seals, on the grounds that the company's request for sealing was untimely. Nevertheless, it ordered A.________ S.A. to pay the procedural costs, amounting to 700 CHF.

A.________ S.A. filed a criminal appeal with the Federal Supreme Court, seeking the annulment of this decision, the dismissal of the request to lift the seals, and the cancellation of the costs charged to it.

Legal Analysis

The Federal Supreme Court reiterates the legal principles applicable to the procedure for lifting seals and the allocation of procedural costs.

1. Procedure for lifting seals (art. 248 and 264 CrimPC): The sealing procedure is intended to protect secrets. It can only be invoked if the person concerned substantially demonstrates the existence of grounds for the protection of secrets as provided by law. Art. 248 para. 1 CrimPC refers exhaustively to the list of grounds for the protection of secrets under Art. 264 CrimPC. The Federal Supreme Court clarifies that trade secrets (Geschäftsgeheimnis), as invoked by the appellant, are not included in this list and therefore do not constitute a valid ground for opposing the lifting of seals.
2. Principle of proportionality (art. 5 Cst. and 197 CrimPC): Any coercive measure must respect the principles of proportionality, suitability, and necessity. It may only be ordered if its objective cannot be achieved by less intrusive measures and if its severity is justified by the gravity of the offense being prosecuted. Art. 197 para. 2 CrimPC requires particular restraint when a coercive measure infringes upon the fundamental rights of third parties who are not defendants.
3. Procedural costs (Art. 416 CrimPC): The Federal Supreme Court emphasizes the principle of legality regarding costs (Art. 423 para. 1 CrimPC). Procedural costs are generally borne by the State, unless otherwise expressly provided by law. The law provides an exhaustive list of persons to whom costs may be charged: the accused (Art. 426 CrimPC) and the private claimant (Art. 427 CrimPC). There is no legal basis in the Criminal Procedure Code to charge the costs of first-instance seal-lifting proceedings to a third party who is not an accused person but is merely affected by the coercive measure. Case law has already established thatArt. 428 CrimPC (costs in appeal proceedings) is not applicable by analogy to first-instance proceedings before the Compulsory Measures Court.

Application to the case at hand

The Federal Supreme Court examines the appellant's grievances.

1. Regarding the lifting of seals: In the interest of procedural economy, the Federal Supreme Court chooses not to rule on whether the request to seal the documents was filed late. It relies on the lower court's alternative reasoning, which held that even if the request had been admissible, the lifting of the seals should have been granted.
   1. The claim regarding the violation of trade secrets is rejected, as this ground is not protected under Arts. 248 and 264 CrimPC.
   2. The claim regarding the violation of the principle of proportionality is also dismissed. The appellant argued that the production of a "Fiduciary Agreement" made the review of bank documents unnecessary. The Federal Supreme Court counters that it is not the role of the Compulsory Measures Court to conduct an anticipatory assessment of evidence. The seized bank documents are clearly relevant to the investigation, particularly for verifying to whom the assets in question should be economically attributed. The measure is therefore deemed proportionate.
   3. The claim regarding the violation of the right to be heard is also rejected, as the lower court was not required to address every argument, but only the essential points, which it did.
2. Regarding procedural costs: The Federal Supreme Court notes that the lower court charged the 700 CHF in costs to the appellant, a third party not accused of any crime, without having a legal basis to do so. Arts. 426 and 427 CrimPC do not apply to the appellant, and no other provision justifies such an allocation. The decision to charge the costs to A.________ S.A. therefore violates federal law.

Outcome

The Federal Supreme Court partially grants the appeal. It annuls point 3 of the operative part of the contested decision, which charged the procedural costs to A.________ S.A. The case is remanded to the Compulsory Measures Court of the Canton of Schwyz for a new decision on the costs and legal fees of the cantonal proceedings. For the remainder, the appeal is dismissed, thereby confirming the lifting of the seals on the bank documents. The federal court costs are partially charged to the appellant, and she is awarded legal fees to be paid by the Canton of Schwyz for the portion of the appeal on which she prevailed.

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