Federal Supreme Court, 03.23.2026, 7B_28/2025
Facts
As part of a criminal investigation into passive bribery (Art. 322quater SCC) regarding the illegal introduction of mobile phones into Pöschwies Penitentiary, the mobile phone of A., an inmate, was seized during a cell inspection on May 26, 2024. The device was handed over to the Zurich Cantonal Police. On September 11, 2024, the Public Prosecutor's Office ordered the seizure of the phone. Informed of his rights, A. requested that it be sealed on October 4, 2024. On October 8, 2024, the Public Prosecutor's Office filed a motion to lift the seals. In a decision dated November 25, 2024, the Compulsory Measures Court of the Dielsdorf district ruled the sealing request invalid, deeming the grounds insufficiently substantiated. It therefore refused to consider the motion to lift the seals and authorized the Public Prosecutor's Office to search the phone. A.________ filed a criminal appeal with the Federal Supreme Court, requesting the annulment of this decision, the dismissal of the motion to lift the seals, and the return of his phone.
Law
The Federal Supreme Court reiterates the principles governing the sealing procedure (Art. 248 CrimPC). First, the purpose of sealing is to protect secrets by preventing law enforcement authorities from accessing objects or records before a court has ruled on the legality of their examination. To be valid, a sealing request must invoke, at least plausibly, a legally protected interest (e.g., protection of privacy, Art. 264 para. 1 let. b CrimPC). Jurisprudence does not require detailed justification at the initial stage of the request. Citing private correspondence on a personal smartphone is considered sufficient. Second, sealing is a physical measure that must make any unauthorized access to data impossible without breaking the seal. It establishes a temporary prohibition on searching and exploiting the data. Serious procedural flaws during this stage can invalidate the entire process. A flaw is considered serious and irreparable if there is a mere possibility that the authorities had premature access to the data. This can result from prolonged storage without seals or delayed sealing following a formal request. In such a case, the seal-lifting procedure cannot continue, and the motion must be dismissed.
Application to the case
The Federal Supreme Court examines two points. First, it rules that A.________'s sealing request was valid. By stating that his phone contained private conversations with his partner and family, he sufficiently invoked a ground for the protection of his privacy. The court of first instance therefore violated federal law by deeming the request insufficiently substantiated. Second, and decisively, the Federal Supreme Court identifies several serious and cumulative procedural flaws committed by the authorities:
- Delayed notification: The phone was seized on May 26, 2024, but A.________, its clear holder, was not informed of his right to request sealing until October 4, 2024, more than four months later. He should have been informed no later than the seizure order of September 11, 2024.
- Prolonged storage without seals: For several months, the phone remained unsealed in a police evidence locker, creating a risk of premature data access.
- Delayed physical sealing: Although A.________ requested sealing on October 4, 2024, the device was not physically sealed until October 22, 2024, more than two weeks after the request and even after the Public Prosecutor's Office had filed its motion to lift the seals. This delay renders the right to sealing meaningless, as it offers no guarantee against data consultation during that interval. The Federal Supreme Court concludes that these failures, particularly the delay of over two weeks in physically applying the seal after the request, constitute a serious and irreparable procedural flaw.
Issue
The Federal Supreme Court upholds A.'s appeal. It overturns the decision of the Compulsory Measures Court. The Public Prosecutor's request to lift the seals is denied. The mobile phone must be returned to A. and added to his personal effects at the penitentiary. Court costs are waived, and the appellant is awarded legal fees.