Take-Aways (AI)
- According to Zurich practice, interviews with potential witnesses and written statements are not witness interviews in the sense of criminal law.
- In Zurich, interviews may only be conducted by officials and under strict formal requirements as formal witness interviews.
- Internal investigation reports, statements to auditing companies and similar documents are not per se contrary to criminal law or professional ethics.
- Criminal liability should be based on domestic law; international consequences must not automatically trigger criminal consequences.
Public Prosecutor’s Office I of the Canton of Zurich: Discontinuation order regarding StGB 271 (March 22, 2005) (ZR 104/2005 P. 230):
[…] According to the reasoning of the Federal Supreme Court, any questioning of a third person is apparently a questioning of a witness if the content of the statements made by the third person is subsequently introduced in some form into judicial proceedings and has evidentiary value there. This is not the case, at least not in the Canton of Zurich. Witness interviews here can only be conducted by officials observing strict formal requirements. It happens time and again that attorneys hold discussions with potential witnesses within the meaning of the Zurich Code of Procedure and introduce their content into the proceedings via their own writings or request third parties to submit written statements, which then find their way into the files. One can also think of interview protocols of internal investigative bodies of a company in cases in which an employee is suspected of a pecuniary offense to the detriment of the company, of statements to an auditing firm and many similar documents that are written before a criminal complaint is filed and then attached to it. In such a procedure, if no influence is exerted on the content of the declarations, there is nothing relevant under criminal law and, as the decision of the Supervisory Commission for Lawyers in the Canton of Zurich shows, there is also nothing in breach of professional ethics.. It is not acceptable that activities which are permitted in domestic proceedings should suddenly be punishable under the aspect of safeguarding national sovereignty if they have an impact on foreign proceedings. Rather, the original intention of the legislature must be taken into account, according to which actions should only be punishable if they would result in domestic proceedings for abuse of office. The contrary view is difficult to fit with the internationalization of society, to which Switzerland is also subject.[…]