SK.2017.64: Deci­si­on of the BStrGer of May 9, 2018 on Art. 271 StGB (not legal­ly binding).

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).

Back­ground

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:

Objec­ti­ve facts

Infor­ma­ti­on Retrieval

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.

Infor­ma­ti­on announcement

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).

Sub­jec­ti­ve facts

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.