On May 9, 2018, the Federal Criminal Court (BStrGer) issued a ruling on Art. 271 StGB (SK.2017.64) and commented on some disputed or unclear points. The judgment is not legally binding (cf. here).
The relevant conduct is set against the background of the US tax dispute. In the summer of 2012, an asset manager – B. AG – had a law firm and an employee compile a dossier on clients who might be liable for tax in the USA. In October 2012, B. AG turned itself in in the USA. In the summer of 2013, B. AG proposed to the DOJ that it seek the release of the customer dossiers by way of legal or administrative assistance, which the DOJ rejected. In November 2013, the Chairman of the Board of Directors of B. AG traveled to the USA and handed over the dossier on a USB stick to the US lawyer of B. AG, who passed the stick on to the DOJ.
In the view of the Office of the Attorney General of Switzerland, the Chairman of the Board of B. AG thereby violated Art. 271 StGB (prohibited acts for a foreign state). The BStrGer followed the BA with regard to the objective elements of the offense, but acquitted the defendant because the subjective elements of the offense were missing:
The BStrGer first examined the factuality of the compilation of the dossier. Here, the court follows the following doctrine:
In the literature, the opinion is expressed that the Procurement of information not in accordance with the offence if such a procedure would also be admissible for proceedings before Swiss authorities (ROSENTHAL, in: Rosenthal/Jöhri, Handkommentar zum Datenschutzgesetz, 2008, Art. 271 StGB N 29; HUSMANN, loc. cit., N 34). This view can be accepted with regard to constellations Be followedin which the person obtaining the data in question is entitled to it. Insofar as information is obtained by means of an internal investigation and no documents obtained from third parties Accordingly, from an objective point of view, there is no conduct constituting a criminal offense within the meaning of Art. 271 No. 1 StGB.
In the present case, B. AG was entitled to the data in question because the documents had been obtained “within the scope of B. AG and its subsidiaries” and had been processed by the law firm commissioned and by one of its own employees. Moreover, the subjective elements of the offense were also lacking here, because at the time the information was obtained, there was no intention to forward the documents to the DOJ without authorization.
In contrast, the BStrGer considered the facts of Art. 271 SCC to be fulfilled in objective terms by the handover of the dossier for the attention of the DOJ:
- The Voluntariness of surrender, contrary to the relevant doctrine, generally excludes the facts from the not offfor two reasons: (i) there is no support for this in the wording of Art. 271 SCC, and (ii) Art. 271 SCC protects Swiss sovereignty, which is why the admissibility of surrender outside the official or legal assistance channels cannot be at the discretion of a private party.
- The publication also represents a sovereign act if, from a Swiss point of view, the surrender is only lawful if ordered by a sovereign authority. On the other hand, the voluntary release of information for a foreign evidence procedure in Civil and commercial matters. However, this does not apply when information is released that is “required by the public order protected in Switzerland”, which may be the case with personal data of third parties:
Accordingly, anyone who discloses information relating to third parties that is protected by Swiss public policy to a foreign authority outside of the official or legal assistance channels or without authorization is committing a criminal offense within the meaning of Art. 271 SCC.
- Go to public order In principle, Swiss banking secrecy also belonged to the DOJ, and B. AG had been contractually obligated to maintain banking secrecy. Accordingly, the data handed over to the DOJ fell within the scope of the public order. This was the case even if the bank customers had given their consent, in view of the protected legal interest (however, the BStrGer does not comment in more detail here on the question of whether the public order really protects bank customers even if they voluntarily waive protection).
- Moreover, the offense was partially takes place in Switzerland, namely with the start of the journey.
- Left open The question of whether Art. 271 SCC can also be fulfilled (i) if the data in question are already located abroad (Graf, GesKR 2016, 179) or (ii) if access to the information in question would be possible from abroad (Rosenthal, Handkomm, Art. 271 N 35; he cites the example of a server in Switzerland that can be accessed from abroad regardless of the specific proceedings, e.g. in a group of companies). These constellations were not fulfilled in the present case, not even for individual data that had been procured abroad for the dossier, because by inclusion in the dossier these data were to be considered “as a whole as originating genuinely in Switzerland” (in other words, the BStrGer assesses the destination of the data here not at the time of procurement, but at the time of subsequent disclosure).
However, the subjective elements of the offense were not fulfilled. What is required is (contingent) intent (Art. 12 para. 1 StGB). However, the knowledge about the Prohibition of the behavior a “legally characterized subjective factual feature”. Consequently, an error about the unlawfulness excludes the subjective elements of the crime, even when the Error avoidable would have been.
That was the case here. The defendant had relied on two legal opinions. For different reasons, both expert opinions were only of limited reliability. Nevertheless, it was credible that the defendant had assumed the legality of his actions due to the reputation of the experts.