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BVGer (A‑3297/2021): On the exclu­si­on of appli­ca­ti­on of the BGÖ in the case of sea­led cri­mi­nal files

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.

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