Public Prosecutor’s Office I of the Can­ton of Zurich: Dis­con­ti­nua­tion order regar­ding StGB 271

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.[…]




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