Swiss Penal Code (SPC) articles 271 and 273. Both
articles are part of the Chapter entitled “Crimes and Offenses Against Country
and National Defense”. Art. 271 SPC, entitled “Prohibited acts for
a foreign state”, reads as follows:
-
Whoever, without being authorized, performs acts for a
foreign state on Swiss territory that are reserved to an authority or an
official,
whoever performs such acts for a foreign party or another foreign organization,
whoever aids and abets such acts,
shall be punished with imprisonment and, in serious cases, sentenced to the
peniten-tiary.
-
Whoever abducts somebody to a foreign country using violence,
ruse or threat in order to hand him over to a foreign authority, party or other
organization, or to endanger his life and limb, shall be sentenced to the
penitentiary.
-
Whoever prepares such abduction shall be sentenced to the
penitentiary or im-prisonment."
(paragraph 2 and 3 play an accessory role compared to
paragraph 1 and will not be discussed here).
Art. 273 SPC, entitled “Economic intelligence service”, provides as
follows:
"Whoever seeks out a manufacturing or business secret in
order to make it accessible to a foreign official agency, a foreign
organization, a private enterprise, or their agents,
whoever makes a manufacturing or business secret accessible to a foreign
official agency, a foreign organization, a private enterprise, or their agents,
shall be punished with imprisonment or, in serious cases, sentenced to the
penitentiary. Furthermore, the judge may impose a fine."
1.1. Object of Legal Protection
Art. 271 SPC aims at protecting the Swiss
sovereignty. The object of the provision is Switzerland’s right that official
acts are to be performed only by its own institutions, unless such right is,
pursuant to an international convention or treaty, granted to a foreign
authority, or (ii) an exception is granted by a competent Swiss authority on a
case by case basis.
1.2. Relevant Behaviour Whoever, on Swiss territory, and without
permission by Swiss authorities, performs acts for a foreign state that are
normally performed by State authorities, is subject to criminal prosecution.
This applies also to persons supporting or enabling such acts. Relevant acts are,
in particular, those that might have legal consequences for the persons involved
or for third parties. It is irrelevant for the determination of whether an act
is criminal or not whether foreign authorities and officials openly perform
official acts in the name of a foreign state on Swiss territory or whether the
author of the act for a foreign state (who can be an individual), acts under
cover. Important is that the acts are of an official nature, that they are
performed for a foreign state and that their performance is reserved to a Swiss
authority or to a Swiss official. If someone (i) participates in an inspection
or investigation of a company’s files in Switzerland undertaken by
representatives of a foreign authority, (ii) collects information from third
parties in Switzerland, or (iii) gathers information and sends it to a non-Swiss
company for forwarding to any foreign authority, Article 271 SPC may be violated. Permission by the deposed person or by any third parties affected
will not relieve the deposing party from its obligations under Article 271 SPC.
The illegal action must take place within the jurisdiction of a Swiss authority.
The offender has to act at least partially on Swiss territory. The power of
Swiss authorities or officials to take evidence is limited by the boundaries of
Switzerland. For this reason, a well-known practice with the goal of evading
the scope of Article 271 SPC has emerged: The parties voluntarily arrange that
the questioning of persons or inspection of documents take place outside of the
Swiss territory. There are no decisions published that deal with such cases. In
particular, the issue of whether the preparation of such actions would be found
to have occurred partially on Swiss territory has not been examined. Moreover,
it is conceivable that the laws of other countries may be violated if these
actions happen on “neutral” territory.
1.3. Possible Offenders Any person can be an offender, i.e., the
crime set forth in Art. 271 SPC may be committed by a Swiss or a foreign person,
an individual or an official.
The primary addressee of an act subject to Art. 271 SPC is, however, a
foreign state acting through its authorities or officials. The relevant acts
will often be performed in support of foreign civil, criminal or fiscal
proceedings, i.e. for proceedings in a foreign state. The acts must be performed
for a foreign state in order to be subject to Art. 271 SPC. This means that the
actions must be taken “in the interest” of a foreign state: they do not need to
be useful to the foreign state, i.e. it is sufficient if such actions are
intended for the benefit of such state. Also included in the circle of
addressees are foreign parties and other foreign organizations, whereby a
foreign organization is defined as a group of persons who pursue together a
common purpose, even if the association is very loose and even if the
organization has neither articles of association, nor any real corporate bodies.
However, Art. 271 SPC will in principle only apply if such organization has a
state-like character. Arbitration tribunals remain private, even if the
arbitrators are appointed by a state tribunal. Therefore, depositions of
witnesses and other acts aimed at obtaining evidence as well as notifications
made for a foreign arbitral tribunal are, in principle, not subject to Art. 271
SPC. Such actions, however, may be punishable under Art. 271 SPC if the
arbitration tribunal has been established with the sole purpose of avoiding
having to resort to mutual legal assistance. In cases where it is not clear
whether the arbitration tribunal requesting assistance for a notification or a
deposition is an instrument of the foreign state or not, these acts should be
performed outside of Switzerland only; alternatively, the Federal Department of
Justice and Police should be consulted on the possibility of initiating mutual
assistance proceedings. Also, state appeal and enforcement proceedings that are
performed after the termination of the main arbitration proceedings are of a
sovereign nature and require State support if such measures are required in
Switzerland. On the other hand, inspectors from foreign Health Authorities who
visit Swiss production sites in the course of an admission procedure fall under
the scope of Art. 271 SPC; therefore, an authorization from the competent
Federal Department of Economic Affairs should be obtained before an inspection
on Swiss territory will take place.
2. Economic intelligence service
2.1. Object of Legal Protection Art. 273 SPC makes it an offense to
seek out a manufacturing or business secret in order to make it accessible to a
foreign authority, a foreign organization or a foreign private business
enterprise or their agents as well as to make a manufacturing or business secret
accessible to one of the listed addressees. It protects the Swiss territorial
sovereignty and independence as well as the national economy by protecting Swiss
production or business secrets. Its terms are to be construed in a broad manner
that covers all of the elements of Swiss economical life for which there is an
interest of non-revelation to foreign public officials or private organizations.
A business secret is defined as any fact of an economical nature that is (i) not
generally known, (ii) is intended to be kept confidential, (iii) in relation to
which a legitimate interest in keeping the secrecy exists and that (iv) has some
kind of connection to Switzerland.
The business secret is protected if it is not known to the foreign addressee of
the information, even if the information is publicly known in Switzerland.
2.2. Consent to Disclosure In order to avoid falling under the
provision of the Swiss Penal Code dealing with the protection of manufacturing
or business secrets, one needs to obtain the consent of all persons to whom the
secret relates: as a rule, there is no breach of secrecy unless somebody wants
to keep the secret. Such consent needs, however, to be explicit. The person
disclosing the information must be in a position to prove that the third party
to whom the secret relates has agreed to the disclosure. In addition, consent
will not be sufficient to permit the disclosure if it is given by the holder of
the secret – the person who has a direct interest in keeping it confidential –
due to pressure exerted by foreign authorities.
In the case of an overall national interest of Switzerland, the right of
secrecy cannot be waived. This means that secrets relating to Switzerland as a
whole, so-called secrets of “national importance” (such as information relating
to measures in case of war) may not be disclosed at all.
2.3. Relevant Behaviour It is prohibited to seek out a manufacturing
or business secret in order to make it accessible to a foreign official agency,
a foreign organization, a private enterprise, or their agents. If the recipient
of the secret information is a private person (who is not acting as agent for
one of the addressees listed above), Art. 273 SPC will not be applicable.
The "success" of the search for manufacturing or business secrets is not
important for the application of Art. 273 SPC. Therefore, even if the spying
person uses unapt methods in order to seek out a secret, it will be liable to
prosecution under Art. 273 SPC provided that the other conditions for the
application of this provision are met.
It is to be noted that, if Switzerland grants mutual assistance to a foreign
country based on an international treaty or a federal or cantonal law, the
disclosure of business or manufacturing secrets which is within the scope of
the granted mutual assistance will not be punishable under Art. 273 SPC.
3. Consequences
Both the prohibition of acts for a foreign state and the prohibition of economic
intelligence service are so-called “political offenses”. This means that the
Federal Judiciary will be competent to prosecute these crimes, as opposed to the
Cantonal Authorities, and that those crimes may only be prosecuted with the
consent of the Swiss Federal Council. The Federal Council, or, in cases where
this competence has been delegated to a Federal Department, the competent
Federal Department, will analyze whether it is opportune to prosecute the crime
(application of the so-called “principle of opportunity”), thereby comparing the
need to prosecute the crime with potential higher interests of the State and
deciding by weighing the pros and cons whether it should give its consent to the
prosecution or not. Usually, the competent body to take the decision on
prosecution or not will be the Federal Department of Justice and Police (DJP).
If a person is found guilty of having committed or helped to commit prohibited
acts for a foreign state, he or she may be punished with imprisonment and, in
serious cases, sentenced to the penitentiary.
A person found guilty of having sought out a manufacturing or business secret
in order to make it accessible to a foreign official agency, a foreign
organization, a private enterprise, or their agents, or of having made a
manufacturing or business secret accessible to such persons or entities, may be
punished with imprisonment or, in serious cases, sentenced to the penitentiary.
In addition, the judge may impose a fine.
May I take depositions in Switzerland if the person involved
agrees to it? Art. 271 SPC protects Switzerland’s sovereignty, i.e. its
exclusive right that official acts are performed only by its own institutions.
Therefore, only the State itself can override the provisions of Article 271 SPC.
The State may either consent generally by way of international conventions or on
a case by case basis by means of a specific authorization. The competent
authority for granting such authorization is the Federal Department of Justice
and Police.
I would like to depose a Swiss citizen in Switzerland. How should I
proceed in order not to commit any offense under Swiss law? If you need to
depose a person in Switzerland, you must formally apply for such deposition by
way of a request for Judicial Assistance in Civil Matters under the applicable
Convention of The Hague of March 18, 1970. Both Switzerland and the United
States are parties to this Convention. It may be noteworthy that Switzerland, as
opposed to other civil law countries like Germany for example, is also prepared
under certain circumstances to grant judicial assistance under this Convention
for pretrial discovery proceedings (see the reservation made by Switzerland to
the Convention). [Hier Link zum Beitrag on mutual assistance]
I would like to depose a Swiss citizen in the United States. If the
person agrees to it, may I invite him or her to the United States and depose him
or her there? It is possible to invite the witness for the deposition to
be taken in the United States. If someone voluntarily makes a deposition in a
foreign country, article 271 will not apply and will, therefore, not cause
problems in Switzerland. However, Swiss citizens are often not willing to appear
in the U.S. for this purpose, irrespective of the cost and time. Furthermore,
the fact that the information is disclosed outside of Switzerland will not
prevent the application of Art. 273 SPC on economic intelligence service, i.e.,
the person giving the testimony and those performing the deposition may be found
guilty of having made a business or manufacturing secret accessible to foreign
authorities.
I am a United States citizen. Am I also protected against economic
intelligence service performed in Switzerland? Art. 273 SPC protects
individuals as well as legal entities regardless of their nationality.
Is the exchange of information between parent companies and their
affiliates illegal under Art. 273 SPC? The reciprocal exchange of
confidential information within a group of companies is, as a rule, necessary
and permitted. However, the Swiss affiliate remains responsible for the
obtaining of the consent of all persons to whom the secrets relate, and,
moreover, the forwarding of information to group companies in foreign countries
may infringe the Swiss data protection legislation [Link zum Beitrag on Data
Protection]). In addition, the exchange of information is prohibited if
confidential facts concerning third parties or confidential information of
(Swiss) national importance are at stake. For example, the electronic processing
of client data of a Swiss affiliate by its parent company domiciled outside of
Switzerland is only permitted if the contractual partners of the Swiss affiliate
have given their consent to the processing of their data abroad.
I am compelled by a foreign court to provide information that might
infringe the manufacturing or business secrets of a Swiss company. The foreign
authorities threaten to impose high fines in case of my refusal. May I give them
the requested information? Under certain circumstances a person providing
information to a foreign court in violation of Article 273 SPC may try to rely
on the "self-defense" under Article 34(1) SPC if the disclosure is aimed at
safeguarding legitimate interests. However, this defense is only very
reluctantly applied, since it would permit foreign authorities to obtain all the
documents they want simply by exerting enough pressure on the person who is
requested to provide them. If confronted with such a request accompanied by
threats in case of refusal to disclose the information, you should try and seek
the consent of the parties involved. If this is not possible or if Swiss
national interests are at stake, which would make it impossible to waive the
obligation of confidentiality simply by obtaining the consent of the parties
involved, you should suggest a request for international mutual assistance or
contact the Federal Department of Justice and Police.
Website of the
Federal Office of Justice, page on international mutual legal assistance in
civil and criminal matters.
April 2006
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