In the case at hand, the Zurich City Police carried out a house search at the accused’s place of residence and seized various electronic devices and data carriers. Two days later, the defence lawyer requested the sealing of the evidence. The court competent for compulsory measures ordered that the seized objects be released to the Public Prosecutor’s Office for further use in the criminal proceedings because the accused had waived his right to sealing and the request for sealing had in any case been made too late. In the appeal proceedings before the SFSC, the accused requested that this decision be reversed and the matter be remanded to the lower court.
Sealing of evidence
Generally speaking, the owner of seized records and objects may request the sealing of evidence due to an alleged right to remain silent, to refuse to testify or for other reasons. According to case law, the request for sealing must be filed immediately. A request for sealing filed several weeks or months after the provisional seizure is late while a request filed within one week may still be considered timely.
Sealed records and objects may neither be inspected nor used by the criminal justice authorities. Unless the criminal justice authority files an unsealing request within 20 days, the sealed records and objects are returned to the owner. If an unsealing request is filed, the court competent for compulsory measures will issue a judgment on the admissibility of the sealing.
Duty to provide information on sealing
In the present case, the SFSC held that the investigating authority which provisionally seizes records and objects must inform their owner about his right to request the sealing of evidence. Moreover, the person concerned must be informed that after sealing the competent court will decide on the admissibility of the search and, in the absence of an immediate sealing request, the person concerned has forfeited its right and must expect that the seized documents will be used in the criminal proceedings.
Such information must be provided in good time, i.e., after completion of the search at the latest, and in sufficient detail, particularly where laypersons are concerned. A mere printout of the relevant legal provisions on the back of the forms signed by the owner is usually not deemed sufficient. Further, the investigating authority must record that such information has been provided, in the absence of which there is no legally valid consent to the search and the request to remove the seals cannot be late. Since the search warrant and search protocol handed over by the Public Prosecutor’s Office did not meet said requirements, the SFSC ruled that signing these documents does not constitute a legally valid waiver of the right to submit a request for sealing.
Lastly, the SFSC held that in view of the improper legal instructions given by the Public Prosecutor’s Office, the defence lawyer’s request for sealing one day after she learned of the house search or, in other words, within two days of the house search is not late. Accordingly, the appeal was upheld and the matter remanded to the lower court for reconsideration.
The Swiss Litigation and Risk Management practice group of Loyens & Loeff has vast experience with dawn raids by criminal authorities and is gladly available if you have any questions regarding how best to prepare for or deal with a raid.
The full text of the judgment of the SFSC (in German) can be accessed here: Case No. 1B_277/2021.