In a recently released ruling 7B_31/2025 of 13 August 2025 (scheduled for publication in the Official Collection of Decisions), the Swiss Federal Supreme Court (SFSC) precised its case law and provided practical guidance as to how privacy concerns should be addressed in, and may impact the outcome of unsealing proceedings in criminal matters.
The SFSC clarified its case law in the sense that, when the prosecuting authority seizes a data carrier (phone, laptop, tablet, binder, etc.) e.g. during a search, the question of potential relevance for the investigation must be examined in relation to the data carrier as a whole, and not in relation to the individual data that may be found therein, unlike what had been stated by the SFSC in certain rulings.
The data carrier should therefore remain sealed only if it is obvious that it is unlikely to contain any information that is relevant for the criminal investigation (e.g. a mobile phone that was clearly used exclusively for private purposes in a case where the investigation relates to criminal offences carried out by business activities).
In all other cases (i.e., when the data carrier is not obviously irrelevant for the criminal investigation), the court deciding on the unsealing must ensure compliance with the principle of proportionality stricto sensu, taking into account the impact that the underlying coercive measure may have on the person concerned, particularly on their privacy.
Therefore, when the prosecuting authority seizes a data carrier which contains potentially relevant information, the question arises whether the owner of such carrier can request that it be and remain sealed on the ground that it contains information relating to the private and intimate sphere.
According to Art. 264 para. 1 lit. b of the Swiss Criminal Procedure Code, "[t]he following items may not be seized irrespective of their location and of when they were created: [...] personal records and correspondence belonging to the accused if the interest in protecting his or her privacy outweighs the interest in prosecution".
Hence, the private/intimate sphere is not protected unconditionally but only where it outweighs the interest in prosecution. The court deciding on the unsealing has a certain degree of discretion when balancing the interests at stake. According to the SFSC, there are three main scenarios:
(i) In the case of serious offences, the public interest in investigating the facts will, in principle ("grundsätzlich"), outweigh the protection of privacy and therefore the seals are to be lifted on the entire set of data.
(ii) In the case of minor offences, the interest in protection of privacy should typically prevail, so that any seizure of documents relating to the private/intimate sphere is inappropriate from the outset.
(iii) In the case of offences of medium seriousness, a balancing test is necessary: the interest of the accused in the protection of their privacy should only be outweighed by the interest of criminal prosecution if the prosecution authorities can realistically expect to obtain decisive information ("massgeblicher Erkenntnisgewinn") from the private data in question. Hence, the prosecution authority must accordingly provide detailed reasons in its unsealing request or limit its scope from a factual and/or chronological perspective.
In the case appealed before the SFSC, the accused was prosecuted for a serious offence under the Narcotics Act (trafficking large quantities of drugs). Hence, he could not oppose the unsealing of his telephone on the ground that it contained elements relating to his private/intimate sphere (messages and videos of an intimate nature). His appeal to the SFSC was therefore rejected.
Key takeaways:
(i) This new case law clarifies and simplifies the assessment of the "potential relevance" of sealed data insofar as such assessment is to be made with regard to the data carrier itself and no longer at the level of the underlying (individual) data.
(ii) Yet, the court deciding on the unsealing shall ensure compliance with the proportionality principle. To that end, this case law provides some welcome guidance with the three scenarios considered (serious, minor and medium-level offences) whenever the protection of privacy is at stake.
(iii) However, we miss a clear definition of the applicable thresholds. It is therefore to be expected that the court deciding on the unsealing will have to examine on a case-by-case basis the type of offence in question, which brings along the risk of contradictory decisions amongst the various cantonal courts across Switzerland, pending further clarifications by the SFSC.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
