14 juillet 2025 | Legal Insight
Swiss Supreme Court clarifies that the
deadline for opposing an unsealing
request cannot be extended
14 juillet 2025 | Legal Insight
Swiss Supreme Court clarifies that the
deadline for opposing an unsealing
request cannot be extended
In its ruling of 10 June 2025 (7B_1264/2024, 7B_1422/2024), relating to the unsealing of physical and electronic documents that were presumably covered by attorney-client privilege, the Swiss Federal Supreme Court provided important practical clarifications on a disputed issue.
According to Article 248a para. 3 of the Swiss Criminal Procedure Code, a provision that entered into force on 1st January 2024: "[t]he court shall grant the interested party a non-extendable deadline of 10 days to oppose the unsealing request and to indicate to what extent it wishes to maintain the seals. The lack of response is deemed a withdrawal of the sealing request".
The question whether the 10 days deadline mentioned above can be extended upon request was disputed amongst legal scholars – even though the relevant article explicitly states that it is non-extendable.
In its decision of 10 June 2025, the Supreme Court has now clarified that the 10 days deadline is not a judicial, but a statutory deadline and can therefore not be extended by the Court, even in cases where the sealed data are voluminous.
The SFSC also reaffirmed the scope of the interested party's duty to cooperate. In this regard, within the 10 days deadline, the interested party must make sufficiently precise allegations to the Court regarding the existence of protected secrets. It is not sufficient to assert, e.g., that documents covered by attorney-client privilege are "somewhere in the documents seized by the Public Prosecutor".
Instead, the interest in the concerned secrets must be briefly described and made plausible (without, of course, disclosing the actual contents of the privileged documents). In addition, the location, among the seized files, of the documents covered by the invoked secrets must be indicated; thus, for electronic data, the location of the documents covered by legal privilege and the names of the relevant attorneys must be indicated, and for physical documents, the position of the documents covered by legal privilege within the binders must be specified.
According to Article 248a para. 3 of the Swiss Criminal Procedure Code, a provision that entered into force on 1st January 2024: "[t]he court shall grant the interested party a non-extendable deadline of 10 days to oppose the unsealing request and to indicate to what extent it wishes to maintain the seals. The lack of response is deemed a withdrawal of the sealing request".
The question whether the 10 days deadline mentioned above can be extended upon request was disputed amongst legal scholars – even though the relevant article explicitly states that it is non-extendable.
In its decision of 10 June 2025, the Supreme Court has now clarified that the 10 days deadline is not a judicial, but a statutory deadline and can therefore not be extended by the Court, even in cases where the sealed data are voluminous.
The SFSC also reaffirmed the scope of the interested party's duty to cooperate. In this regard, within the 10 days deadline, the interested party must make sufficiently precise allegations to the Court regarding the existence of protected secrets. It is not sufficient to assert, e.g., that documents covered by attorney-client privilege are "somewhere in the documents seized by the Public Prosecutor".
Instead, the interest in the concerned secrets must be briefly described and made plausible (without, of course, disclosing the actual contents of the privileged documents). In addition, the location, among the seized files, of the documents covered by the invoked secrets must be indicated; thus, for electronic data, the location of the documents covered by legal privilege and the names of the relevant attorneys must be indicated, and for physical documents, the position of the documents covered by legal privilege within the binders must be specified.
