TF, 13.10.2026, 7B_544/2026
Facts
The Federal Department of Finance (FDF) is conducting administrative criminal proceedings against an unknown person within Bank A.________ SA for suspected violation of the reporting obligation under Art. 37 of the Anti-Money Laundering Act (AMLA) (consid. A).
In this context, the FDF ordered the production of numerous banking documents on May 22, 2025.
Bank A.________ SA complied with this order by transmitting two password-protected data carriers, while requesting that the documents on the second carrier be sealed (consid. A).
By decision of March 16, 2026, the Appeals Chamber of the Federal Criminal Court (FCC) granted the FDF's request to lift the seals and authorized the search of the documents in question (consid. B).
Bank A.________ SA (hereinafter: the appellant) has filed a criminal appeal with the Federal Supreme Court against this ruling.
It seeks the annulment of the contested decision, the partial rejection of the request to lift the seals, and the return or destruction of ten specifically designated documents, invoking the protection of trade secrets as well as the professional secrecy of in-house legal counsel (consid. C).
Law
A decision to lift seals constitutes an interlocutory decision that may be immediately appealed to the Federal Supreme Court if it causes irreparable harm (art. 93 para. 1 let. a LTF), which is recognized by established case law whenever the violation of a protected secret is substantiated (consid. 1.2).
Under the Federal Act on Administrative Criminal Law (DPA), the search of documents must be carried out with the utmost regard for private secrets, particularly trade secrets (Art. 50 para. 1 DPA) (consid. 2.1).
However, anyone claiming a trade secret cannot rely on a general assertion: they must demonstrate specifically how their private interest in confidentiality outweighs the public interest in uncovering the truth and conducting criminal prosecution (consid. 2.2 and 2.3.1).
Pursuant to Art. 50 para. 2 DPA and the corresponding rules of criminal procedure (Art. 171and264 para. 1 let. c CrimPC), professional secrecy protects information entrusted to independent lawyers within the scope of their typical professional activity (consid. 3.1 and 3.2).
This secrecy does not apply to purely commercial or ancillary activities, such as internal compliance or anti-money laundering audit functions (consid. 3.2).
Unlike civil procedure law, which established a right for in-house counsel to refuse to cooperate (in-house privilege underart. 167 let. a CPC in effect since January 1, 2025), criminal law and administrative criminal law do not recognize any professional secrecy for salaried in-house counsel (recitals 3.3 and 3.4).
The deliberate absence of an extension of this privilege to criminal proceedings constitutes a qualified silence on the part of the federal legislature, which precludes any filling of the gap by analogy or judicial interpretation (recitals 3.4 and 3.5).
Application to the specific case
The appellant first invokes trade secrecy to prevent the inspection of its internal Staff Manual, asserting that disclosure would risk benefiting its commercial competitors (recitals 2.2 and 2.3.3).
The Federal Supreme Court rejects this argument: the mere lifting of seals for the benefit of the criminal authority does not make the document accessible to third parties, and any restrictions on the right to inspect the file may be ordered later if necessary (recital 2.3.3).
Furthermore, the manual contains organizational directives that are essential for determining internal processes and responsibilities within the banking institution, such that the public interest in criminal prosecution outweighs the bank's private interest (recitals 2.2, 2.3.4, and 2.4).
Regarding documents prepared by its internal legal department, the appellant claims an analogous application of Art. 167a CPC to administrative criminal law and alleges a gap in the law (recital 3.5).
The Federal Supreme Court dismisses this argument: parliamentary proceedings unequivocally demonstrate that the legislature knowingly refused to extend the protection of in-house counsel secrecy to criminal law and administrative criminal law during the revision of the CPC (recitals 3.4 and 3.5).
This refusal constitutes a qualified silence in the law that is binding on the court (recital 3.5).
Consequently, salaried in-house counsel do not benefit from any professional secrecy that can be invoked against the FDF, and the Complaints Chamber correctly held that the disputed internal documents must be unsealed (recital 3.6).
Outcome
The Federal Supreme Court dismisses the appeal (operative part 1, recital 4).
The court costs, set at CHF 4,000, are charged to the appellant, who has been unsuccessful (operative part 2, recital 4).