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App­Ger BS: StGB 321; gra­dua­te of a psy­cho­lo­gy program

The Court of Appeal of the Can­ton of Basel-Stadt had to deal with the facts of Art. 321 StGB (vio­la­ti­on of pro­fes­sio­nal sec­re­cy) (decis­i­on of March 13, 2019, AG.2019.255, Swiss­lex). It was que­stionable whe­ther a gra­dua­te of a psy­cho­lo­gy pro­gram could fall under this provision.

The Appel­la­te Court ans­we­red this que­sti­on in the nega­ti­ve in the spe­ci­fic case on the objec­ti­ve as well as sub­jec­ti­ve side of the facts:

The fact that the respon­dent had stu­di­ed psy­cho­lo­gy may have made him appear even more trust­wor­t­hy to the com­plainant. Con­ver­se­ly, howe­ver, it is just as pos­si­ble that his trust­wor­t­hy cha­rac­ter pre­de­sti­ned him for such stu­dies. Howe­ver, an increa­sed trust­wort­hi­ness, which may deri­ve from a pre­vious­ly com­ple­ted stu­dy or from the per­so­nal cha­rac­ter trait of the respon­dent […] is not suf­fi­ci­ent to estab­lish the requi­red cau­sal con­nec­tion. […]. Sin­ce the facts of Art. 321 StGB requi­re intent on the sub­jec­ti­ve side, this would also have to refer to the cau­sal con­nec­tion […]. I.e. it would have to be pos­si­ble to pro­ve the respon­dent, that he knew that the com­plainant gave him infor­ma­ti­on about her per­so­nal situa­ti­on on the occa­si­on of the chan­ce encoun­ter on the street in Zurich only becau­se he was stu­dy­ing psy­cho­lo­gy. Such a pro­of is unli­kely to suc­ce­ed with the utmost certainty.

The Appel­la­te Court was the­r­e­fo­re able to lea­ve open the que­sti­on of whe­ther a com­ple­ted psy­cho­lo­gy cour­se can in its­elf ful­fill the ele­ments of Art. 321 StGB at all:

The que­sti­on of whe­ther the respon­dent actual­ly holds a master’s degree or equi­va­lent degrees and wit­hout a for­mal pro­fes­sio­nal licen­se is legal­ly cover­ed by the dis­pu­ted pro­fes­sio­nal sec­re­cy pro­vi­si­ons at all, can, in view of the fol­lo­wing con­side­ra­ti­ons be left open.

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