In its ruling of 10 June 2025 (7B_1264/2024, 7B_1422/2024),
relating to the unsealing of physical and electronic documents that
were presumably covered by attorney-client privilege, the Swiss
Federal Supreme Court provided important practical clarifications
on a disputed issue.
According to Article 248a para. 3 of the Swiss Criminal Procedure
Code, a provision that entered into force on 1st January 2024:
"[t]he court shall grant the interested party a
non-extendable deadline of 10 days to oppose the unsealing request
and to indicate to what extent it wishes to maintain the seals. The
lack of response is deemed a withdrawal of the sealing
request".
The question whether the 10 days deadline mentioned above can be
extended upon request was disputed amongst legal scholars –
even though the relevant article explicitly states that it is
non-extendable.
In its decision of 10 June 2025, the Supreme Court has now
clarified that the 10 days deadline is not a judicial, but a
statutory deadline and can therefore not be
extended by the Court, even in cases where the sealed data
are voluminous.
The SFSC also reaffirmed the scope of the interested party's
duty to cooperate. In this regard, within the 10 days deadline,
the interested party must make sufficiently precise
allegations to the Court regarding the existence of protected
secrets. It is not sufficient to assert, e.g.,
that documents covered by attorney-client privilege are
"somewhere in the documents seized by the Public
Prosecutor".
Instead, the interest in the concerned secrets must be briefly
described and made plausible (without, of course, disclosing the
actual contents of the privileged documents). In addition, the
location, among the seized files, of the documents covered by the
invoked secrets must be indicated; thus, for electronic data, the
location of the documents covered by legal privilege and the names
of the relevant attorneys must be indicated, and for physical
documents, the position of the documents covered by legal privilege
within the binders must be specified.
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.
