BVGer (A‑1353/2022): con­clu­ded cus­toms cri­mi­nal pro­ce­e­dings; no access to inter­ro­ga­ti­on pro­to­col of a third par­ty; DSG 8 f. and 19

In 2016, the cur­rent Fede­ral Office for Cus­toms and Bor­der Secu­ri­ty (BZG) had a Admi­ni­stra­ti­ve cri­mi­nal inve­sti­ga­ti­on on sus­pi­ci­on of vio­la­ti­on of cus­toms legis­la­ti­on in the impor­ta­ti­on of works of art for one of the per­sons con­cer­ned was dis­con­tin­ued wit­hout con­se­quence. The lat­ter recei­ved a copy of the rele­vant inve­sti­ga­ti­on files with redac­ted tran­scripts of inter­ro­ga­ti­ons of third par­ties. The inve­sti­ga­ti­ons against other per­sons con­cer­ned were continued.

The per­son con­cer­ned sub­se­quent­ly deman­ded the han­do­ver of the com­ple­te files, in par­ti­cu­lar the unre­dac­ted record of an inter­ro­ga­ti­on of a third par­ty, and an extra­ct of the rele­vant data from the Infor­ma­ti­on System for Cri­mi­nal Mat­ters BZG. Appar­ent­ly, he was of the opi­ni­on that the pro­ce­e­dings were based on a defa­ma­to­ry accu­sa­ti­on of the interviewee.

The BZG par­ti­al­ly refu­sed to pro­vi­de the infor­ma­ti­on (among other things, with refe­rence to the minu­tes). An appeal to the direc­tor of the BZG was unsuc­cessful. The per­son con­cer­ned appea­led to the Fede­ral Admi­ni­stra­ti­ve Court, which has now dis­missed the com­plaint. In con­nec­tion with the same inve­sti­ga­ti­on, the per­son con­cer­ned had pre­vious­ly filed a request for inspec­tion, which was rejec­ted by the FAC. had also been rejec­tedat that time becau­se the inve­sti­ga­ti­on was still pen­ding (Art. 2 FADP).

The per­son con­cer­ned had pri­ma­ri­ly focu­sed on the Right to infor­ma­ti­on of the DSG in accordance with Art. 14 para. 1 of the Ordi­nan­ce on the Infor­ma­ti­on System for Cri­mi­nal Mat­ters of the Fede­ral Office of Public Pro­se­cu­ti­on (ISV-BFD), accor­ding to which the right to infor­ma­ti­on in com­ple­ted cri­mi­nal pro­ce­e­dings is gover­ned by the DPA and the Cri­mi­nal Pro­ce­du­re Code, whe­re­as the right to inspect files during the inve­sti­ga­ti­on is gover­ned by Art. 26 ff. VwVG.

The BGer con­firms the ruling of the BVGer with the fol­lo­wing considerations:

  • If a request for infor­ma­ti­on from a fede­ral body inclu­des per­so­nal data of third par­ties, in addi­ti­on to Art. 8 FADP, the spe­cial pro­vi­si­on on dis­clo­sure to third par­ties of Art. 19 FADP. To a cer­tain ext­ent, this is a gene­ral pro­vi­si­on on admi­ni­stra­ti­ve assi­stance and an imple­men­ting pro­vi­si­on on gene­ral offi­ci­al secrecy.
  • Art. 19 para. 1 FADP requi­res a spe­ci­fic basis for dis­clo­sure. If no other basis applies, lit. d requi­res the reci­pi­ent to show cre­di­bly that the data sub­ject refu­ses to con­sent to dis­clo­sure in order to pre­vent the reci­pi­ent from enfor­cing legal claims or pro­tec­ting other inte­rests wort­hy of pro­tec­tion. That is what the data sub­ject had clai­med here – he wan­ted to exami­ne claims against the inter­view­ee for fal­se accu­sa­ti­on. This is not suf­fi­ci­ent for the Fede­ral Admi­ni­stra­ti­ve Court: The fact alo­ne that the cus­toms cri­mi­nal pro­ce­e­dings and seve­ral cri­mi­nal pro­ce­e­dings against the per­son con­cer­ned were dis­con­tin­ued – appar­ent­ly also due to the inter­ro­ga­tor – does not make claims credible.
  • In addi­ti­on, Art. 19 (4) (b) FADP pro­vi­des that dis­clo­sure is to be refu­sed or rest­ric­ted if this is sta­tu­to­ry sec­re­cy obli­ga­ti­ons requi­re. That is the case here. The Tax sec­re­cy accor­ding to Art. 74 MWSTG is in its­elf such a basis, as is Art. 110 DBG (so alre­a­dy BGer 1C_541/2014). Howe­ver, tax sec­re­cy does not pro­tect the admi­ni­stra­ti­on, but the trust of the tax­payer or third par­ty bur­den­ed with a duty to coope­ra­te. Accor­din­gly, it is unclear whe­ther it also applies to infor­ma­ti­on that is not rela­ted to an assess­ment or sub­se­quent coll­ec­tion pro­ce­du­re or is com­mu­ni­ca­ted by third par­ties but does not con­cern their per­so­nal or finan­cial circumstances.
  • Howe­ver, this could be left open, becau­se at least the Sec­re­cy of inve­sti­ga­ti­on accor­ding to Art. 73 StPO is oppo­sed to dis­clo­sure – it could crea­te a risk of col­lu­si­on, impair­ment of evi­dence or for the pro­cess of opi­ni­on-forming and decis­i­on-making and vio­la­te pri­va­te inte­rests of the par­ties to the pro­ce­e­dings. This also applies if the inve­sti­ga­ti­on is ent­ru­sted to an admi­ni­stra­ti­ve authority.

Sin­ce not­hing could be deri­ved from the right to inspect files eit­her, the BGer dis­missed the appeal.

What the FAC unfort­u­n­a­te­ly did not address is the que­sti­on under which con­di­ti­ons infor­ma­ti­on in a docu­ment is to be con­side­red per­so­nal data about a spe­ci­fic individual.




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