Federal Supreme Court, 20.08.2026, 7B_219/2026
Facts
During criminal proceedings related to drug trafficking, Ticino authorities discovered that several defendants appeared to have been informed of upcoming arrests in advance. B.________ and C.________ stated that they had received this information from E., who worked at the D. law firm and allegedly had access to information from the criminal case file. Attorney A.________ was defending F.________ in these proceedings, and E. assisted him with this mandate, giving both of them access to the investigative files. (consid. 2.7.1-2.7.2)
The Public Prosecutor's Office subsequently opened a separate investigation into A.________ and E. for offenses including accessory after the fact, money laundering, and participation in an aggravated violation of the Federal Act on Narcotics. During a search of the law firm, A.________ and F.________ requested that all documents, both paper and digital, related to the defense mandate be sealed. The compulsory measures court ultimately ordered the partial unsealing of the paper documents. A.________ appealed to the Federal Supreme Court. (consid. 2.1)
Legal Analysis
Attorney-client privilege is afforded special protection because it guarantees both the client's trust in their counsel and the proper administration of justice. According toArt. 264 para. 1 let. a CrimPC, documents relating to communications between a defendant and their defense counsel are, in principle, exempt from seizure. However, Art. 264 para. 1 let. c CrimPC provides an exception when the holder of the privilege is themselves a defendant in the same set of facts. (consid. 2.2-2.4.3)
The Federal Supreme Court examined the relationship between these two provisions. A literal interpretation of Art. 264 para. 1 let. a CrimPC appears to establish absolute protection, as no exception is expressly provided therein. However, historical, systematic, and teleological interpretations lead to the opposite result. Preparatory documents show that the legislature intended to allow seizure when the defense counsel themselves was criminally involved. Furthermore, professional secrecy is not absolute throughout the Criminal Procedure Code. (consid. 2.6.1-2.6.5)
The Federal Supreme Court therefore concludes that Art. 264 para. 1 let. a CrimPC does not confer broader protection than let. c. A defense counsel who is themselves a defendant in the same set of facts cannot invoke professional secrecy as an absolute bar to the unsealing of documents. (consid. 2.6.6)
Application to the Case
A.________ was himself a defendant in a set of facts closely linked to those concerning his client, F. Therefore, he could not prevent the unsealing of documents by invoking his own professional secrecy. However, both proceedings were being conducted by the same Ticino Public Prosecutor's Office. Consequently, there was a concrete risk that F.'s confidential documents would also be disclosed to the prosecutor in charge of the proceedings against the latter. Such a situation would compromise the protection of F.________'s defense privilege. (consid. 2.7.1-2.7.3)
The compulsory measures court must therefore implement organizational measures to prevent the magistrate in charge of the proceedings against F.________ from accessing the unsealed documents, for example by restricting their review solely to the prosecutor in charge of the proceedings against A.________. (consid. 2.7.3)
Outcome
The appeal is partially granted. The decision to unseal the documents is set aside, and the case is remanded to the compulsory measures court to adopt sufficient safeguards to protect information pertaining to F.________'s defense. The claim regarding proportionality is, however, dismissed. (consid. 3.1-4)