The rights of the defence

Professional privilege

Every person accused of an economic offence in Zurich has the right to remain silent, the right to counsel from the first police interview and the right to participate in the taking of evidence. In economic cases, where the evidence consists mainly of documents and data, the most important procedural safeguard is the protection of privileged material. Article 264 paragraph 1 StPO excludes from seizure, regardless of where they are located and when they were created, the documents from communications between the accused and his defence counsel, personal records and correspondence of the accused where the interest in protecting personality outweighs the interest in prosecution, objects and documents from communications between the accused and persons entitled to refuse to testify under Articles 170 to 173 StPO, and objects and documents from communications between another person and his lawyer. The last category is limited to lawyers who are entitled under the Federal Act on the Freedom of Movement of Lawyers to represent parties before Swiss courts.¹

The limitation to lawyers admitted in Switzerland or entitled to practise there under the Lawyers Act has considerable practical significance for international companies. Communications with in-house counsel are not protected under Swiss criminal procedure. Communications with foreign lawyers who are not entitled to represent parties before Swiss courts may also fall outside the protection of Article 264 paragraph 1 letter d, although lawyers from EU and EFTA states can generally practise in Switzerland under the free movement rules.² A US or Asian company that conducts a sensitive internal inquiry through its general counsel or through a law firm without Swiss-admitted lawyers should therefore not assume that the resulting documents will be protected if Swiss prosecutors search its Zurich subsidiary.

The privilege is also limited to activity that is typical of the legal profession. Where a lawyer acts as a director, an asset manager, a fiduciary or a financial intermediary, the communications are not protected. The distinction has particular relevance in Zurich, where lawyers have traditionally served as directors of domiciliary companies and as fiduciaries for foreign clients. The practice of using lawyers as intermediaries for the opening of bank accounts, which was once a hallmark of Swiss private banking and whose origins are described in Part F, now offers no protection against criminal investigation.

Sealing under the revised law

The procedural mechanism through which privilege is protected is sealing (Siegelung). Where the holder of seized records or objects asserts that they cannot be searched or seized because of a right to refuse to testify or for other reasons, the authorities must seal them. They may not examine the content until the compulsory measures court has decided on the prosecutor’s request for unsealing. The court may appoint an expert to examine the content.³

The revision of 2024 changed this mechanism in several respects. The holder must request sealing within three days. The group of persons who can request sealing has been extended to “entitled persons” with a legitimate interest in confidentiality. The prosecutor has twenty days to request unsealing, after which the entitled person has ten days, which cannot be extended, to substantiate the sealing request. In June 2025 the Federal Supreme Court confirmed that this deadline cannot be extended even in complex cases involving voluminous data.⁴ In a further decision of 15 November 2024, the Federal Supreme Court held that under the revised Code only the grounds listed exhaustively in Article 264 StPO can justify a request for sealing. Commercial, business, manufacturing and banking secrets are no longer grounds for sealing in themselves. Once a valid ground under Article 264 has been invoked, the unsealing judge must also examine ancillary objections such as the absence of sufficient suspicion or the disproportionality of the measure.⁵

The exclusion of banking secrecy as an independent ground for sealing is a notable moment in the history of the Swiss financial centre. For most of the twentieth century, Article 47 of the Banking Act protected client data against private parties and foreign authorities, although never against Swiss criminal prosecutors. Under the pre-2024 practice, banks could at least invoke the secrecy interests of their clients to delay access to data. Under the revised Code, a bank that holds data about a client can oppose its use in criminal proceedings only on the grounds listed in Article 264, principally professional privilege. The change completes, in criminal procedure, the transformation of banking secrecy from a quasi-constitutional principle into an ordinary duty of confidentiality, which Part G traces in the fields of tax cooperation and supervision.

Internal investigations and privilege

Internal investigations have become a standard response of Zurich banks and companies to suspicions of misconduct. A bank that discovers that a relationship manager has accepted funds from a politically exposed person, or a company that learns that an agent has paid bribes, will typically instruct an external law firm to establish the facts, to assess the legal consequences and to advise on reporting and remediation. The question whether the resulting reports, interview notes and correspondence are protected against seizure has been the subject of a line of decisions by the Federal Supreme Court.

In a decision of 22 September 2016, the Federal Supreme Court held that work products of external counsel conducting an anti-money laundering investigation are not protected where the law firm is in substance performing the bank’s statutory duties of monitoring, clarification and documentation under the Anti-Money Laundering Act. A bank cannot shield its compliance duties from the prosecution by delegating them to lawyers.⁶ The court refined this approach in a decision of 2 March 2023 concerning a Geneva bank whose employee had embezzled client funds. It held that the privilege covers only activity typical of the legal profession and does not extend to assisting a bank in fulfilling its mandatory anti-money laundering obligations. Where a single mandate combines legal advice and compliance work, law firms must separate communications, memoranda, interview reports and other documents. The court even suggested that firms should consider working with two separate teams. Where documents address both categories, the burden lies on the bank to show that they are privileged.⁷

A commentary on the 2023 decision distinguishes three categories of documents. Internal bank documents sent to lawyers are not privileged unless they were prepared solely for the purpose of obtaining legal advice or a defence. Reports by the law firm that combine factual findings with legal analysis are protected. Purely factual reports are not privileged, whoever their author may be.⁸ The decision left open whether the same requirements apply to internal investigations conducted by companies outside the financial sector, which are not subject to the Anti-Money Laundering Act. In practice, Zurich law firms now structure internal investigations with separate workstreams for regulatory compliance and legal advice, document the purpose of each engagement carefully and restrict the circulation of interview memoranda. For a company that expects to cooperate with the prosecution, the choice of what to disclose voluntarily and what to protect has become a strategic decision to be taken at the outset of the inquiry.

Whistleblowing

Many economic crime cases begin with an insider’s report. Swiss law nevertheless provides no specific statutory protection for whistleblowers in the private sector. The Federal Council submitted a bill to Parliament in November 2013 that would have regulated when an employee may report irregularities to the employer, to an authority or to the public without breaching the duty of loyalty under the Code of Obligations. A supplementary dispatch followed in September 2018. On 5 March 2020 the National Council rejected the bill for the second time, which ended the legislative project.⁹ The OECD Working Group on Bribery had recommended urgent legislation to protect private-sector whistleblowers two years earlier.

The absence of a statutory framework does not mean that whistleblowers are without any protection. Employees who report to the competent authorities in good faith, after first raising the matter internally, are generally protected against abusive dismissal under the case law of the Federal Supreme Court. Reporting to the media or to foreign authorities, on the other hand, carries considerable risks. Bank employees are subject to the criminal provision on banking secrecy, while the transmission of information to foreign authorities may fall under Article 271 SCC (unlawful acts on behalf of a foreign state) or Article 273 SCC (industrial espionage).¹⁰

The case of Rudolf Elmer, a former employee of the Julius Bär group, illustrates both the risks and the limits of criminal liability. Elmer had worked for the group’s trust company in the Cayman Islands and later passed client data to the media, to WikiLeaks and to the Swiss tax authorities. After proceedings before the Zurich district court and the Zurich Obergericht, the Federal Supreme Court held by three votes to two on 10 October 2018 that he had not violated Swiss banking secrecy, because he had been employed by a Cayman company and not by a Swiss bank. His conviction for coercion and threats against former colleagues, with a suspended sentence of fourteen months, was upheld.¹¹ The Elmer case remains a reference in the Zurich debate on whistleblowing, above all because of the years of criminal proceedings to which the whistleblower was exposed.

Notes

1. StPO, Art. 264 para. 1 lit. a–d, https://www.droit-bilingue.ch/de-fr/3/31/312.0-264-268.html. Para. 3 provides that where an entitled person objects to the seizure on the ground of a right to refuse to testify or for other reasons, the authorities proceed according to the rules on sealing. ↩
2. Criminal Procedure Code (SR 312.0), Art. 264 para. 1 lit. d, bilingual edition, https://www.droit-bilingue.ch/de-fr/3/31/312.0-264-268.html (protection only where the lawyer “nach dem Anwaltsgesetz vom 23. Juni 2000 zur Vertretung vor schweizerischen Gerichten berechtigt ist”); Lawyers Act (BGFA, SR 935.61), Art. 8 para. 1 lit. d, https://www.droit-bilingue.ch/de-fr/9/93/935.61-8-11.html, under which registered lawyers may be employed only by persons who are themselves registered, which excludes in-house counsel, and Art. 21 para. 1, https://www.droit-bilingue.ch/de-fr/9/93/935.61-21-25.html, on the right of EU and EFTA lawyers to represent parties before Swiss courts in the free provision of services. ↩
3. StPO, Art. 248, text as published on droit-bilingue.ch, https://www.droit-bilingue.ch/de-fr/3/31/312.0-248-252.html. The text on that site reflects the version in force before 1 January 2024. The revised procedure is summarised in the Pestalozzi briefing cited in section I. ↩
4. Andrew M. Garbarski and Adam Zaki, “Swiss Supreme Court clarifies that the deadline for opposing an unsealing request cannot be extended”, Bär & Karrer, 14 July 2025, https://www.baerkarrer.ch/en/publications/swiss-supreme-court-clarifies-that-the-deadline-for-opposing-an-unsealing-request-cannot-be-extended, discussing judgments 7B_1264/2024 and 7B_1422/2024 of 10 June 2025. The court also required the entitled person to specify within the deadline where the allegedly protected documents are located, for example by naming the lawyers concerned. ↩
5. Abdul Carrupt and Andrew M. Garbarski, “Swiss Federal Supreme Court clarifies the grounds for sealing data and the competence of the unsealing judge under the revised Criminal Procedure Code”, Bär & Karrer, 10 December 2024, https://www.baerkarrer.ch/en/publications/swiss-federal-supreme-court-clarifies-the-grounds-for-sealing-data-and-the-competence-of-the-unsealing-judge-under-the-revised-criminal-procedure-code, discussing judgments 7B_950/2024 and 7B_976/2024 of 15 November 2024. ↩
6. Anne-Catherine Hahn, “Legal Privilege in Internal Investigations Concerning Anti-Money Laundering Obligations: a Swiss View”, Global Compliance News (Baker McKenzie), 2017, https://www.globalcompliancenews.com/2017/04/04/legal-privilege-internal-investigations-switzerrland-20170404/, discussing Federal Supreme Court judgment 1B_85/2016 of 22 September 2016. ↩
7. Adam El-Hakim and Simone Nadelhofer, “Attorney-client privilege: Further supreme court clarification on obligations for law firms conducting internal investigations”, LALIVE, 31 March 2023, https://www.lalive.law/attorney-client-privilege-further-supreme-court-clarification-on-obligations-for-law-firms-conducting-internal-investigations/, discussing Federal Supreme Court judgment 1B_509/2022 of 2 March 2023. ↩
8. Katia Villard, “Internal investigation within a bank: The scope of attorney-client privilege”, Centre de droit bancaire et financier (CDBF), University of Geneva, 11 April 2023, https://cdbf.ch/en/1279/. ↩
9. Federal Office of Justice, “Kündigungsschutz / Whistleblowing”, https://www.bj.admin.ch/de/kuendigungsschutz-whistleblowing. ↩
10. BGE 127 III 310 of 30 March 2001, https://servat.unibe.ch/dfr/bge/c3127310.html: an employee may disclose irregularities where a superior interest prevails, but must first approach the employer, then the competent authority, and may go public only if the authority remains inactive; disproportionate disclosure to television justified summary dismissal. Swiss Criminal Code, Arts. 271 and 273, https://www.droit-bilingue.ch/de-en/3/31/311.0-271-334.html and https://www.droit-bilingue.ch/de-en/3/31/311.0-273-336.html. Frank and Markwalder (cited above) also note the risk that Art. 271 SCC may criminalise employees who report through foreign whistleblower programmes. ↩
11. swissinfo.ch, “Bundesgericht: Rudolf Elmer hat Bankgeheimnis nicht verletzt”, 10 October 2018, https://www.swissinfo.ch/ger/bundesgericht-rudolf-elmer-hat-bankgeheimnis-nicht-verletzt/44464290. ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of September 2025.