The Federal Supreme Court ruling 7B_813/2024 of December 16, 2024, concerns the seizure of notebooks belonging to a detained suspect, containing conversations with their defense lawyer
In this case, the Public Prosecutor ordered the seizure of two notebooks and subsequently requested the lifting of the seals, which was ultimately granted by the Coercive Measures Court (TMC).
According to Article 264, paragraph 1 of the Swiss Code of Criminal Procedure (CPP), documents related to communications between the suspect and their defense lawyer cannot be seized, regardless of where or when they were created (lit. a). The protection of attorney-client exchanges is based on the relationship of trust, allowing the client to rely entirely on the discretion of their legal representative.
However, according to the contested order, some passages in the notebooks—interwoven with personal reflections—recounted the appellant’s discussions with their lawyer.
The TMC noted that the two notebooks were titled “A Suspect’s Journal”, that the appellant described them as intended for their “friends”, family, and acquaintances, and that their reflections were recorded in the first person and in chronological order. The TMC also pointed out that no element indicated that the notebooks were meant to be sent to the appellant’s lawyer.
Based on these findings, the TMC considered that the notebooks should be regarded as personal diaries or notes and were therefore not protected under Article 264, paragraph 1, lit. a CPP.
In this regard, the Federal Supreme Court clarified that, by choosing such a format and failing to clearly separate potentially defense-related content from personal considerations, the appellant had knowingly accepted the risk that their notes would not be protected by attorney-client privilege. Moreover, since they were intended for “friends”, family, and acquaintances, this demonstrated, if anything, the appellant’s intent to share these notes with third parties not bound by professional secrecy.
Furthermore, the seized notebooks were clearly not meant to be communicated to the appellant’s lawyer. This is not a situation where the appellant had no other means of corresponding with their defense lawyer. In fact, the contested order states that the appellant was able to consult their lawyer during detention and send explicitly confidential letters.
In light of these elements, this case does not involve legal defense notes that would be protected by attorney-client privilege. The TMC therefore did not violate federal law in ruling that the notebooks were not covered by Article 264, paragraph 1, lit. a CPP. As a result, the Federal Supreme Court rejected the appeal.