The Federal Administrative Court has ruled in the Decision A‑3297/2021 of 20 January 2023 with a Request for access to files related to the procurement of masks was involved in the case. The peculiarity was that criminal proceedings for usury are pending in parallel – it is easy to imagine which constellation the anonymized decision concerns.
The issue primarily concerned the relationship between rules of criminal procedure on the one hand and the right of public access on the other. The Federal Supreme Court has issued a leading decision in a similar context, BGE 147 I 47on which the BVGer relies.
The point of departure was Art. 3 (1) (a) (2) of the Federal Law on Civil Procedure, which Exclusion of application of the BGÖ in the case of “official documents concerning criminal proceedings. The lower instance, the army staff, had partially approved the access request in accordance with a recommendation of the FDPIC.
The FAC dismisses the appeal of the trademark supplier against this decision. It essentially argues as follows:
- The pendency of criminal proceedings begins with the commencement of the investigative activities of the police (preliminary proceedings) and ends with the legally binding conclusion of the proceedings.
- Art. 3 para. 1 let. a no. 2 of the Federal Law on Civil Procedure refers to not to all official documents and files that would be in a criminal file. Rather, a distinction must be made:
If a document is expressly ordered in the context of criminal proceedings or has been created explicitly with a view to such proceedings, it is a criminal file in the narrower sense. Such documents are definitely not covered by the material scope of application of the Code of Criminal Procedure. Other documents in a criminal file, such as mere evidence, on the other hand, constitute criminal files in the broader sense and are in principle subject to the FCOA.
- In addition, evidence in criminal proceedings is then excluded from the BGÖ excluded if they are “directly related to the contested decision” and “closely connected with its subject matter in dispute”. However, this cannot be said for all sealed documents. Although all sealed documents form the subject matter of the unsealing proceedings, in practice documents are also seized for which there are no grounds for sealing from the outset. If such documents were also excluded from the BGÖ, the BGÖ could be undermined by sealing:
Therefore, if an official document can clearly and beyond any doubt not be opposed by any reason for sealing that would justify waiting for the decision of the compulsory measures court, its disclosure cannot be prevented by reference to Art. 3 para. 1 let. a no. 2 FSIO.
- The Procurement dossier is not exempt as such from BGÖ:
Certificates and test reports of the masks, which are largely written in Asian script, do not contribute in any way to the establishment of the objective and subjective facts of usury. A close connection to the subject matter of the dispute does not exist from the outset.
- Excluded is after all the Email correspondence between the mask supplier and the Army staff because it directly serves as evidence for (or against) the usury charge are relevant:
The e‑mail correspondence between the lower instance and the complainant essentially concerns invoices, lot reservations, information on orders from other purchasers of masks, official orders, offers, price reductions, certificates of urgency, packing lists, data sheets, certificates, deliveries and payment modalities. Together with the printed offers, orders and invoices, which are also in the procurement dossier, they can prove the existence of various purchase contracts as well as their most essential points (number of masks of a certain type [performance] and price [consideration]). Therefore, these documents prove that two-sided transactions were concluded with respect to the masks. A two-sided transaction must be present for the fulfillment of the objective fact of usury […]. In this respect, these official documents are directly related to the “subject matter of the dispute” of the current criminal proceedings.
- Furthermore, the right of access was not excluded by secrets pursuant to Art. 4 lit. a of the Code of Civil Procedure.