22 mai 2026 | Legal Insight
Non-accused also Enjoy Protection of
Legal Privilege, Privacy and the Medical
Secret in Unsealing Proceedings
22 mai 2026 | Legal Insight
Non-accused also Enjoy Protection of
Legal Privilege, Privacy and the Medical
Secret in Unsealing Proceedings
In a new landmark ruling, the Swiss Federal Supreme Court has clarified that non-accused third parties may also invoke protection of legal privilege, privacy and other legally protected secrets, such as the medical secret, in the context of unsealing proceedings.
In its decision 7B_558/2025 dated 20 April 2026 (designated for publication in the official collection), the Swiss Federal Supreme Court held that article 264 para. 1 lit. a, b and c of the Swiss Criminal Procedure Code (CPC) must be interpreted more broadly than its literal wording suggests. The provision refers to "documents regarding contacts between the accused and his defense counsel" (lit. a), "personal documents and correspondence of the accused" (lit. b), and to "objects and documents relating to contacts between the accused and a person who has the right to refuse to testify pursuant to articles 170 through 173, provided that such person is not itself accused in the same case" (lit. c). The medical secret falls within the third category.
While the text of article 264 CPC might suggest that non-accused third parties cannot rely on these grounds to oppose a search and request the sealing of evidence, the Federal Supreme Court – consistent with prevailing legal doctrine – adopted a broader interpretation. The Court held that the protection afforded by said provision also extends to non-accused third parties, provided they are the holders of the evidence subject to the search.
The ruling of the Federal Supreme Court brings welcome clarification to the scope of the provisions on the sealing of evidence. The Court's extensive interpretation also prevents prosecution authorities from circumventing the sealing regime by delaying the formal designation of an accused. However, contrary to what the Court’s reasoning appears to suggest, the protection afforded to non-accused parties should also extend to situations where the confidential evidence is not in their immediate possession but is held instead by a third party on their behalf. Indeed, article 264 para. 1 CPC clearly states that the grounds preventing the search of evidence apply "regardless of where they are located and the moment of their creation".
In its decision 7B_558/2025 dated 20 April 2026 (designated for publication in the official collection), the Swiss Federal Supreme Court held that article 264 para. 1 lit. a, b and c of the Swiss Criminal Procedure Code (CPC) must be interpreted more broadly than its literal wording suggests. The provision refers to "documents regarding contacts between the accused and his defense counsel" (lit. a), "personal documents and correspondence of the accused" (lit. b), and to "objects and documents relating to contacts between the accused and a person who has the right to refuse to testify pursuant to articles 170 through 173, provided that such person is not itself accused in the same case" (lit. c). The medical secret falls within the third category.
While the text of article 264 CPC might suggest that non-accused third parties cannot rely on these grounds to oppose a search and request the sealing of evidence, the Federal Supreme Court – consistent with prevailing legal doctrine – adopted a broader interpretation. The Court held that the protection afforded by said provision also extends to non-accused third parties, provided they are the holders of the evidence subject to the search.
The ruling of the Federal Supreme Court brings welcome clarification to the scope of the provisions on the sealing of evidence. The Court's extensive interpretation also prevents prosecution authorities from circumventing the sealing regime by delaying the formal designation of an accused. However, contrary to what the Court’s reasoning appears to suggest, the protection afforded to non-accused parties should also extend to situations where the confidential evidence is not in their immediate possession but is held instead by a third party on their behalf. Indeed, article 264 para. 1 CPC clearly states that the grounds preventing the search of evidence apply "regardless of where they are located and the moment of their creation".
