Motion Janiak (16.3186): Official secrecy and cooperation between authorities. Supplement to Article 320, Paragraph 2, StGB
The Federal Council proposes that the motion be rejected.
Submitted text
The Federal Council is instructed to submit a bill to Parliament that expands the grounds for justification for the offense of violation of official secrecy (Art. 320 SCC) in cases where secrets have been disclosed or had to be disclosed due to an overriding public interest.
Justification
There is a tension between the duty to cooperate with authorities and the obligation to maintain official secrecy. For many employees in the public sector, it is often not clear which data disclosure to other authority members or officials is permitted and when they may be committing an offense. The current legal situation is confusing. Article 320 StGB has existed in unchanged form for more than half a century. In the meantime, a lot has changed with regard to the protection of secrets as well as with regard to the understanding of administrative activity and public interest. In her bachelor thesis “Amtsgeheimnis und Behördenkooperation” (Official Secrecy and Cooperation with Authorities), Karin Blöchlinger has taken up the issue and proposes a clarifying supplement to the regulation of official secrecy in Article 320 number 2 SCC by adding a second ground of justification (cf. Wirtschaftsjuristische Arbeiten 6, Schulthess, Zurich 2015). The offender shall also not be liable to prosecution “if he has disclosed the secret on the basis of a predominantly public interest within the same or to another authority and the disclosure served the latter to fulfill its statutory task.” The federal law on data protection is to be reserved. The motion takes up this proposal, but of course also leaves room for a different formulation.
Statement of the Federal Council
Article 320 of the Criminal Code (StGB; SR 311.0) makes the disclosure of official secrets by public officials a criminal offense. Whether the secret is disclosed within or outside the administration is irrelevant. However, the petitioner focuses on the cooperation between authorities and the protection of overriding public interests.
In various areas of administrative activity of the Confederation and the cantons, specific and precise rules on administrative and judicial assistance have been issued in recent years. In its opinion on 13.3277 Ip. Regazzi explains the differences between reporting rights and obligations on the one hand and reporting rights and obligations on the other. Administrative assistance rules are also standardized in certain areas of administrative law, e.g. in Article 39 of the Financial Market Supervision Act (FINMASA; SR 956.1). The Federal Council prefers such rules because they exclude criminal liability for a breach of official secrecy under clear guidelines pursuant to Article 14 SCC.
It may seem useful, for example, to inform the authority deciding on a professional license or a school authority which persons are being investigated in specific criminal proceedings. However, both the prosecuting authority and the persons concerned have an interest in ensuring that this information is only disclosed under precisely defined conditions, as set out in Article 364 SCC and Article 75 of the Code of Criminal Procedure (CCP; SR 312.0). The justification proposed in the motion would lead to inconsistent information disclosure, and the superior authorities would no longer be able to ensure consistent practice. In the interests of the rule of law and legal certainty, administrative assistance must be based on a precise legal foundation. Last but not least, the required justification could also cause collisions with such administrative assistance rules of the Confederation and the cantons.
In addition, when granting consent pursuant to Article 320 no. 2 SCC, the superior authority must already carry out the balancing of interests proposed by the motioner (cf. for example Art. 170 para. 3 Criminal Procedure Code). The fact that this consent must be given not by the official concerned but by the superior authority and, moreover, in writing is ultimately intended to guarantee that the weighing of interests – also in the interests of any citizens affected – is carried out carefully.
The inclusion of the justification ground in Article 320 SCC, as called for in the motion, is therefore superfluous and could lead to numerous tensions and considerable legal uncertainty. Ultimately, there would be a risk that this would even impair cooperation between authorities. The Federal Council is therefore of the opinion that cooperation between authorities is regulated appropriately in the current law and in terms of the rule of law and legal certainty.
Finally, it should be noted that doctrine and case law also recognize the extra-legal justification of the protection of legitimate interests for the offense of violation of official secrecy (Art. 320 StGB) (e.g. judgment of the Federal Supreme Court 6B_305/2011 of December 12, 2011, E. 3.). This also includes the overriding public interests cited by the petitioner.