BVGer A‑5706/2020 and A‑5709/2020: Redac­tions in legal assi­stance cases

On March 5, 2021, the Federal Admi­ni­stra­ti­ve Court addres­sed the issue in two rulings (A‑5706/2020 and A‑5709/2020) with the redac­tion requ­est of a bank employee. She had reque­sted that her per­so­nal data on the bank records of a custo­mer be made anony­mous after the docu­ments had been redac­ted with a view to trans­mit­ting them by way of mutu­al legal assistance.

The Office of the Attor­ney Gene­ral of Switz­er­land had rejec­ted the requ­est on the grounds that objec­tions based on data pro­tec­tion law in any case “only pos­si­ble to a limi­ted extent” in the case of mutu­al legal assi­stance in cri­mi­nal mat­ters were. Spe­ci­fi­cal­ly, it argued that (i) the­re was not­hing to pre­vent dis­clo­sure to coun­tries with an ade­qua­te level of data pro­tec­tion, (ii) this safe­guard could not be invo­ked in the cases of Art. 11f (iii) dis­clo­sure in mutu­al assi­stance pro­ce­e­dings is to be “regar­ded a prio­ri as gene­ral­ly per­mis­si­ble”, (iv) the DPA does not app­ly to mutu­al assi­stance pro­ce­e­dings in cri­mi­nal mat­ters, and (v) the­re are doubts as to the legi­ti­ma­cy of the appeal becau­se, pur­suant to Art. 9a a IRSV, only the account hol­der is per­so­nal­ly and direct­ly affected.

Of the­se argu­ments, the Federal Admi­ni­stra­ti­ve Court dealt only with the fourth one by not acting on the appeal for for­mal rea­sons: on the one hand, the Office of the Attor­ney Gene­ral of Switz­er­land in this mat­ter is No admis­si­ble lower instance wit­hin the mea­ning of Art. 33 FAC (E. 2.2). On the other hand, the invo­ked refe­rence pro­vi­si­on of Art. 33 DPA does not lead any fur­ther here eit­her, becau­se while it gene­ral­ly assigns data pro­tec­tion pro­ce­e­dings to the federal admi­ni­stra­ti­on of jus­ti­ce, the DPA in the area of inter­na­tio­nal judi­cial assi­stance does not even not for use (Art. 2 para. 2 let. c FADP).

The Federal Cri­mi­nal Court dis­mis­sed the two par­al­lel appeals as unfoun­ded in its deci­si­on of Febru­a­ry 2, 2021 (RR.2020.308 and RR.2020.311).