In its ruling, the court refuses to unseal seized data carriers and documents belonging to a journalist, thereby strengthening freedom of press. The current decision of the Zurich District Court of 2 July 2025 deals with the unsealing of seized data carriers and documents in the case of Inside Paradeplatz journalist Lukas Hässig, after the journalist correctly filed for sealing on the grounds of protecting his sources. The decision of the Compulsory Measures Court shows the conditions under which a request for unsealing is approved or, as in this case, not approved.

Facts and background of the Hässig case

The focus is on an investigative journalist, editor of the Inside Paradeplatz platform. He is accused of sharing information and data from Bank Julius Bär & Co. AG, which is subject to banking secrecy and/or trade secrets, in his magazine ‘Inside Paradeplatz’. In connection with the resumption of criminal proceedings against the respondent for an offence under Article 47 Banking Act, a search was carried out at his home and place of work. Various items and data carriers were seized. Referring to the protection of journalistic sources, the respondent requested that all seized items be sealed.

The public prosecutor’s office then filed a request for unsealing with the Compulsory Measures Court of the Zurich District Court. The respondent commented on the request for unsealing and requested that it be dismissed.

Note: The judgment shows that the criminal investigation by the public prosecutor’s office had already been suspended twice. In the most recent suspension order, the public prosecutor’s office itself had denied the admissibility of a search on the grounds of source protection, which the court took up in its judgment.

Legal requirements for unsealing

A request for sealing is used to assert permissible confidentiality interests pursuant to Article 248 para. 1 of the Swiss Criminal Procedure Code when searching records. Once the request for sealing has been filed, the criminal authority first seals the seized data carriers and documents. In the unsealing proceedings, the Compulsory Measures Court is then obliged to examine any objections to the admissibility of the search. A general decision must therefore be made as to whether the search is admissible.

A search of records within the meaning of Article 246 ff. Swiss Criminal Procedure Code, i.e. ‘documents, audio, video and other recordings, data carriers and equipment for processing and storing information’, is permissible if:

According to Article 246 of the Swiss Criminal Procedure Code, documents, audio, video and other recordings, data carriers and equipment for processing and storing information may only be searched if there is reason to suspect that information subject to seizure is contained in these items. According to Article 263 para. 1 of the Swiss Criminal Procedure Code, items and assets that are used as evidence (lit. a) are subject to seizure if they are needed to secure procedural costs, fines, penalties and compensation (lit. b), if they are to be returned to the injured party (lit. c), confiscated (lit. d) or used to cover claims for compensation by the state in accordance with Article 71 of the Swiss Criminal Code.

Unlike the court of law, the Compulsory Measures Court does not have to exhaustively weigh up all incriminating and exonerating evidence. What is required is a sufficiently concrete probability that the alleged offence was actually committed. According to the highest court ruling, reasonable suspicion can be equated with the concept of initial suspicion pursuant to Article 309 para. 1 lit. a of the Swiss Criminal Procedure Code.
Compared to pre-trial detention (Art. 224 ff. Swiss Criminal Procedure Code), the unsealing and searching of records appears to be significantly less intrusive. The requirements for reasonable suspicion are therefore less stringent. Reference can be made to substantiated criminal complaints or reports. The grounds for suspicion must be examined on the basis of the results of the investigation to date.

Furthermore, the Compulsory Measures Court must weigh up the interests involved and examine whether the house search and the search of the sealed data are proportionate to the constitutionally protected intimate and private sphere of the respondent.
The owner of the records or objects may request sealing if there are obstacles to seizure in accordance with Article 264 of the Swiss Criminal Procedure Code (Art. 248 Swiss Criminal Procedure Code). These obstacles to seizure also prevent the unsealing of previously sealed records and objects.

When assessing the proportionality of this compulsory measure, the severity of the offences under investigation is also taken into account (Art. 197 para. 1 lit. d Swiss Criminal Procedure Code).

Considerations of the coercive measures court in its ruling of 2 July 2025

No reasonable suspicion

The criminal investigation against the respondent has now been ongoing for six years. The investigation files do not indicate that the suspicion against the respondent has intensified in recent years or at least months. The Compulsory Measures Court finds that no suspicion against the respondent can be established, even to a minimal degree. Sufficient suspicion is denied.

Proportionality and source protection

The public prosecutor’s office argues that the respondent cannot invoke source protection under Art. 28a para. 1 of the Swiss Criminal Code and Art. 172 of the Swiss Criminal Procedure Code and thus a right to refuse to give evidence. The Compulsory Measures Court argues that the respondent acted in the interests of society and fulfilled his duty as an investigative journalist. It considers the priority given to criminal prosecution and possible punishment for a breach of banking secrecy over the legitimate right of the public to be informed about alleged far-reaching violations of the law in the financial sector to be manifestly wrong. According to the Compulsory Measures Court, the interest in prosecution in this case is not sufficiently weighty to outweigh the protection of sources. The proportionality of the search must also be denied.

Finally, the Compulsory Measures Court finds that the conditions for unsealing and searching the seized data carriers and documents are not met.

Significance for the media, lawyers and those affected

The ruling thus rightly emphasises the high hurdles for interference in journalistic work. Source protection enjoys strong protection in Switzerland, as it is enshrined in the Constitution and the ECHR. Finally, criminal proceedings such as the unsealing and searching of records require careful consideration of the interests involved – especially in the case of media professionals.

For affected journalists and media companies, this means that access to confidential data is only permitted in exceptional cases where there are concrete and serious grounds for suspicion of criminal activity.

Our law firm provides advice on criminal procedure law, media law, source protection and the enforcement of personal rights. Please feel free to contact us without obligation if you have any questions about criminal proceedings and the search of records.

FAQ Criminal proceedings and sealing:

  1. How does the sealing of data carriers or documents occur in criminal proceedings?

Seized data carriers or documents are sealed if the person concerned claims that the contents of the records are subject to special protection, for example due to professional secrecy (e.g. protection of journalistic sources, lawyers, doctors). Sealed data may only be searched after a court decision has been made.

  1. Under what conditions can a request for unsealing be successful?

To this end, the public prosecutor’s office submits a request for unsealing to the Compulsory Measures Court. Unsealing is possible if there is concrete and sufficient suspicion against the person concerned and the search appears proportionate to their fundamental rights. The Compulsory Measures Court always examines the proportionality and the suspicion.

  1. What is the right to refuse to give evidence and who can invoke it?

The right to refuse to give evidence allows certain professional groups – e.g. lawyers, journalists, doctors – to refuse to testify and to keep their sources or client data confidential. This protection applies as long as they are not suspected of having committed serious crimes themselves.

The right to refuse to give evidence allows any person to refuse to testify during questioning for their own protection (Art. 169 Swiss Criminal Procedure Code) or to protect personal relationships such as their spouse or close relatives (Art. 168 Swiss Criminal Procedure Code). However, sealing is only protected under Art. 264 of the Swiss Criminal Procedure Code in cases of qualified confidentiality protection, e.g. items and documents from another person’s communications with their lawyer.

  1. Is the protection of journalists’ sources also guaranteed in court?

Yes, journalists can invoke source protection. Courts and public prosecutors may only seize and unseal their data in exceptional cases – namely when there are clear indications of a criminal offence and public interests, namely in the criminal investigation, outweigh other considerations.

  1. What can I do if I receive a summons to appear as a witness but wish to refuse to provide information?

You must attend the appointment, but you can exercise your right to refuse to give evidence if you are bound to secrecy as a relative or because of your profession. Inform the authorities of this in good time and seek legal advice if necessary.

Julius Paulicka, lawyer in conversation with Jana Hofmann[1]

How did you get into equine law?

It all started with my own riding. My parents have been running their own breeding and riding business for more than 50 years. After studying law in Bielefeld (Germany), I completed my legal internship with a colleague who specialises in equine law, and one thing led to another.

Based on your experience, can you tell us what we need to consider when buying a horse? Are there specific formal requirements for horse purchase agreements?

No, the horse purchase agreement is not subject to any specific formal requirements and can therefore also be concluded verbally. However, as the purchase of a horse is a significant matter, it is advisable to conclude a written purchase agreement. All essential points of the agreement should be included, which may be advantageous later on for reasons of proof.

What should be included in the purchase agreement?

The horse should be clearly described. Accordingly, the following points should be included in the purchase agreement: name of the horse, breed, year of birth, gender, colour, UELN (Universal Equine Life Number). It is also useful—at least from the buyer’s point of view—if the purchase agreement mentions whether the horse is experienced in competitions, safe in cross-country riding, and easy to shoe.

The buyer should request a contractual warranty from the seller. Accordingly, the current condition of the horse should be specified in the contract. The state of health should be determined by a pre-purchase examination (AKU), as the seller is only liable for warranty to the extent that it has been assured to the buyer (cf. Art. 198 OR). This contrasts with German law, where the warranty period can be up to two years (business-to-consumer) and is enshrined in law.

Transfer of ownership

It is also important that the purchase agreement specifies when the benefits and risks associated with the animal are transferred to the buyer and when the buyer receives the ownership documents. The transfer of benefits and risks usually takes place upon signing the purchase agreement, while the handover of the horse and, if applicable, the ownership documents takes place after the purchase price has been paid in full. It should also be mentioned here that it can be advantageous to list both the purchase price and the method of payment in the purchase agreement. Is the purchase price to be paid in instalments or in a lump sum, etc.?

How can unpleasant surprises be avoided?

Before concluding the purchase agreement, the horse should be visited several times and, above all, test ridden. You should get a comprehensive picture of the animal: What are its character traits, and what is its current condition? Has the animal been regularly vaccinated and dewormed? As mentioned above, the animal’s current state of health should be determined by an AKU (animal health check) carried out by an independent veterinarian of your choice, and the AKU report should be made part of the contract. After the horse has been handed over, the buyer should observe the animal closely again in its new environment. If, for example, the buyer finds the horse’s behaviour strange, this should be reported to the seller within nine days (see Art. 202 para. 1 OR). In addition, an examination of the horse by an expert should be requested from the competent court. Upon expiry of the above-mentioned period, the buyer is generally excluded from any warranty claims, unless the defects were concealed despite inquiries and the buyer was thereby deceived. The safest option for the buyer is likely to be a trial purchase. This allows the buyer to return the horse at any time during the trial period without giving reasons. However, very few sellers agree to this (and rightly so), as they have no control over how the horse is handled or ridden during the trial period.

What are the legal specifics of riding partnerships?

Riding partnerships entail rights and obligations for both the horse owner and the rider. It is therefore advisable to conclude a written contract between the two parties. There are no specific legal regulations, but as a rule, the legal provisions governing loans for use or rental agreements apply, depending on whether the riding partnership is remunerated or free of charge.

Accordingly, the contract should specify when the rider is allowed to ride the horse and under what conditions. How much does the rider pay the horse owner, and are there any other tasks expected of the rider?

Furthermore, the horse owner’s expectations, or the extent to which the horse may be used, should be specified for the rider. For example, what the riding share includes, whether the horse may be ridden without a saddle, or whether jumping is permitted. It should also be noted that the rider should extend their personal liability insurance to cover riding other people’s horses. This is important because regular personal liability insurance does not cover damage to the horse.

[1] This text appeared in the magazine zürichsee Aktuell, No. 39, p. 16.
https://zuerisee-aktuell.ch/bps-legal.html

We would like to welcome Yanick Haag as our new legal assistant. Yanick is studying for his Master’s degree in law at the University of Lucerne, after completing his Bachelor’s degree at the University of Lucerne. At BPS LEGAL he can complement his theoretical knowledge with practical experience.

We wish Yanick Haag a good start and look forward to working with him.

The publication of a building application by SpaceX subsidiary Starlink in the Valais official gazette has attracted media attention. The US company is planning to build a new ground station for satellite communication in the municipality of Rarogne in the canton of Valais. What sounds like future technology to many is, in legal terms, a classic application of Swiss building and planning law – with complex requirements for zoning conformity, authorisation and public interest.

Building in Switzerland – only within clear rules

In Switzerland, building is not allowed just anywhere. The Spatial Planning Act (RPG) obliges the federal government, cantons and municipalities to organise the use of land in an economical manner (Art. 1 RPG). In principle, building projects must be concentrated in building zones – buildings outside such zones are only permitted in exceptional cases (Art. 24 RPG).

Anyone wishing to construct an installation such as that of Starlink must first clarify whether the site is zonally compliant – for example, whether it is an industrial zone, special zone or even agricultural land. This is often not clear, especially in the case of technical infrastructure, antenna systems or communication stations.

The building permit procedure – regulated by the canton, legally demanding

The actual building permit procedure is governed by cantonal law. In the canton of Lucerne, for example, the Planning and Building Act (PBG) stipulates that all buildings and installations are subject to authorisation (§ 184 PBG LU). The prerequisite is that the project conforms to the zoning regulations, development is secured and there are no overriding public or private interests to the contrary.

If construction takes place outside the building zone, an additional exemption licence is required from the canton – and in sensitive cases, approval from the federal government.

Legal support creates clarity and security – even in the event of resistance

Planning applications such as that of Starlink are a good example of how complex even technically or economically desirable projects can be. Possible objections, environmental impact assessments, monument preservation requirements and special authorisations often make the process challenging.

At the same time, not only developers but also objectors have rights. For example, the Facebook group ‘5G en Suisse, non merci!’ has criticised the planned project. It is calling on the public to lodge an objection to the planning application by 28 June 2025. Although the planned installation is not a classic 5G antenna, such reactions show that projects in the telecommunications sector are also increasingly controversial in society.

Building law stipulates that affected neighbours, environmental organisations or third parties with an interest worthy of protection can lodge an objection during the consultation period – in this case by 28 June 2025. If this is done in due time and form, the responsible authority must deal with the objections. Particularly in technologically or ecologically sensitive cases, opposition is to be expected – careful legal preparation is therefore crucial.

Starlink plans to start setting up the first Swiss ground station as early as autumn 2025. Whether this succeeds also depends on whether objections are raised – and whether they are successful.

As a law firm with a proven track record in construction, planning and environmental law, we represent developers and municipalities as well as neighbours and objectors – with the aim of achieving legally viable and fair solutions.

Contact us for non-binding advice on construction, planning and environmental law.

If an employee is absent due to illness for an extended period of time, this can lead to uncertainty. It raises questions regarding a possible dismissal. When may a notice of termination be issued during the employee’s absence and in which cases not?

This article is intended to provide an overview of the protection against dismissal during illness.

What is meant by temporary protection against dismissal?

If the probationary period is completed and there is an ordinary employment relationship, protection against dismissal for a certain period of time applies in the event of illness of the employee in accordance with Art. 336c para. 1 lit. b CO.

The reason for the temporary ban on dismissal is that it is unreasonable to expect the employee to look for a new job during his or her illness, or that she would be unlikely to be hired by a new employer due to her illness-related absence. The purpose of the restriction on dismissal is to protect the employee from unemployment as a result of their illness.

As a prerequisite for the application of a suspension period, the employee must be ill through no fault of their own. The illness must be of a certain severity for the temporary protection against dismissal to apply. Protection against dismissal does not apply in the case of a simple summer flu, cold or similar. It is worth submitting a medical certificate to the employer as proof.

Each new illness that has no causal connection to the previous illness triggers a new blocking period. For example, if the employee was on sick leave due to a depressive episode, this triggers a blocking period. If the employee falls ill with Lyme disease in the same year due to a tick bite, this triggers a new blocking period. A causal connection and therefore no new blocking period is triggered in the case of relapses, recurrences or late effects.

Excursus: No temporary protection against dismissal in the event of job-related illness

However, if the illness has a direct connection to the workplace, this cannot justify protection against dismissal according to federal court case law. [1] The Federal Supreme Court justifies the lack of protection against dismissal by the fact that the employee is able to look for and take up another job precisely because of the job-related nature of the illness. Finally, it must be mentioned here that if an employee is completely unable to work due to the job-related illness, the protection against dismissal applies again.

What is the temporal effect of the restriction on dismissal?

Art. 336c para. 1 lit. b CO provides for different blocking periods for each year of service: 30 days in the first year of service, 90 days from the second to the fifth year of service and 180 days from the sixth year of service. If the absence due to illness lasts beyond the change of year of service and a longer blocking period is applied, then the longer blocking period applies. The days that have already elapsed are deducted from the longer blocking period.

The length of the blocking period is determined by the actual length of the absence due to illness. Accordingly, the protection against dismissal ends at the moment when the inability to work ceases. The lengths specified in Art. 336c para. 1 lit. b CO only represent a maximum length of the blocking period.

What is the effect of temporary protection against dismissal?

During the period of protection against dismissal, any dismissal issued by the employer is null and void. This means that it is as if no notice of termination had ever been given. In order to terminate the employment relationship, the employer must terminate the employment relationship again at the end of the month following expiry of the period of suspension. The employment relationship ends at the end of the notice period. However, if the employee terminates the employment relationship during the notice period, the termination is effective.

If the employer gives notice of termination before the employee falls ill and the employee falls ill during the notice period, the notice of termination remains effective. The notice period is interrupted in accordance with Art. 336c para. 2 CO and resumed after the end of the qualifying period.

Frequently asked questions about protection against dismissal during illness

How long does the blocking period last?

The length of the blocking period is determined by the actual length of the absence due to illness. Accordingly, the protection against dismissal ends the moment the inability to work ceases. The lengths specified in Art. 336c para. 1 lit. b CO only represent a maximum length of the blocking period. Accordingly, the blocking period ends in any case after.

    • 30 days in the first year of service

    • 90 days form the second to the fifth year of service and 

    • 180 days from the sixth year of service.

What happens if there are several cases of illness?

In the event of several independent cases of illness within one year, a new blocking period can be triggered for each case. However, relapses or sequelae of the same illness do not trigger a new qualifying period.

What happens if an illness occurs during the notice period?

If an employee falls ill during the notice period after receiving notice of termination, the notice period is interrupted for the duration of the incapacity to work (at most until the end of the blocking period) and continues to run after the end of the illness. A notice of termination issued by the employer during a valid blocking period is null and void and must be issued again after the blocking period has expired.

[1] BGer 1C_595/2023 Urteil vom 26.3.2024.

According to the Federal Act on the University Medical Professions (MedBG), the practice of medicine in Switzerland requires a cantonal licence to practise (Art. 34 ff. MedBG). Federal law gives the Cantons the responsibility for issuing this licence, but only allows limited leeway for additional requirements. The Cantons may, for example, set requirements with regard to language skills or personal aptitude – but may not introduce formal criteria such as rigid age limits, unless this is covered by overriding federal law. It is precisely at this interface that the latest legal dispute in Neuchâtel is taking place.

Decree of the Department of Health and decision of the Cantonal Court of Neuchâtel

A Neuchâtel doctor, born in 1944, applied for an renewal of his licence to practise in accordance with the cantonal health law (Loi de santé (LS); RSN 800.1) which in Neuchâtel must be renewed every three years after the age of 70. The Department of Health refused the renewal based on Art. 57 LSN on the grounds that the cantonal health law generally prohibits renewals beyond the age of 80. The doctor contested this decision. However, on 24 September 2024, the Cantonal Court of Neuchâtel rejected the appeal, citing the cantonal healthcare law and the fixed age guillotine.

Federal Supreme Court (2C_486/2024, 14.04.2025): Age limit inadmissible

In the appeal lodged against this in matters of public law, the Federal Supreme Court upheld the complaint of the doctor concerned. It held that federal law in Art. 34 ff. MedBG do not recognise a maximum age limit for medical practice. The cantons only have limited room for manoeuvre for supplementary regulations. Therefore, the cantonal health law (LSN) with its fixed age guillotine violates the primacy of federal law (Art. 49 BV).

The Federal Supreme Court emphasised that personal suitability for practising the profession may very well be assessed – for example with regard to health or cognitive abilities. However, an automatic refusal of authorisation based solely on the date of birth is inadmissible. The decision obliges the cantonal authorities to carry out aptitude tests based on individual cases in future – for example by means of medical certificates or evaluations – instead of applying schematic age limits.

Frequently asked questions about the authorisation requirement for doctors and the age guillotine

How are professional practising licences for doctors regulated?
Doctors require a cantonal licence to practise under the Federal Act on the University Medical Professions (MedBG) (Art. 34 ff. MedBG). Federal law gives the cantons the responsibility for issuing this licence, which is often regulated in the cantonal health laws, e.g. in Neuchâtel in the Loi de santé (LS; RSN 800.1) or in Lucerne in the Health Act(GesG; SRL 800). However, the MedBG only allows limited room for manoeuvre for additional requirements.

May a canton set an age limit for doctors?
No. The Federal Supreme Court has made it clear that cantonal age limits (such as a rigid limit of 80 years) are not compatible with the MedBG and violate the primacy of federal law.

Can an authorisation still be limited in time or not extended?
Yes, but only after an individual assessment of personal suitability. The decisive factor is not age, but whether the person concerned is still capable of practising the profession for health or professional reasons.

What does the ruling mean for cantonal health departments?
Cantonal supervisory bodies for doctors are required to review their practice. According to the Federal Supreme Court, it is still permissible, for example, to issue temporary licences in order to be able to regularly check whether the requirements for granting the licences are still met. In this case, the doctor concerned is entitled to have the licence renewed if he or she fulfils the requirements for practising the profession. Cantons may also request an assessment of the person concerned to examine this question.

What consequences does this have for doctors in later life?
In principle, they can continue their work if they are in good health. Authorisation can only be refused if an individual assessment (e.g. medical report) shows concrete doubts about suitability.

On Monday, 12 May 2025, Matthias R. Schönbächler, former Data Protection Officer of the Canton of Lucerne, was officially bid farewell by the Lucerne Cantonal Council. Schönbächler held the office from 2018 to 2024 and supported the handover to his successor Natascha Ofner-Venetz in 2025.

In his tribute, Ferdinand Zehnder President of the Cantonal Parliament emphasised Schönbächler’s pioneering work in setting up the cantonal data protection supervisory authority. This task was successfully mastered with legal precision and technical understanding.

As a lawyer with impressively broad specialist knowledge and, as he himself described it, competence in technical dialogue, Matthias Schönbächler combined legal precision with technical understanding

– Ferdinand Zehnder, President of the Cantonal Parliament

The video recording of the Cantonal Parliament session of 12 May 2025 is available on the Cantonal website: https://www.lu.ch/kr/Sessionen/videoaufnahmen?keyword=Session&sessionoverview=true

After these words of praise, the President of the Cantonal Parliament thanked Matthias R. Schönbächler on behalf of the Cantonal Parliament for his many years of service to the Canton of Lucerne.

We would also like to thank Matthias R. Schönbächler for his services to data protection and administrative development in the Canton of Lucerne. Our special thanks also go to the Lucerne Cantonal Council and State Secretary Vinc Blaser for their honourable farewell.

We welcome Laurine Kaufmann back as our new legal intern and extend a warm welcome to her. Laurine has already gained experience as a legal assistant at BPS Legal. Laurine studied law at the University of Lucerne after completing her Bachelor’s degree at the University of Bern. At BPS Legal, she can now supplement her knowledge with her first practical experience and complete her internship on the way to being admitted to the bar.

We wish Laurine Kaufmann a good start and look forward to working with her.

We would like to welcome Lara Salis as our new legal assistant. Lara is studying for her Master’s degree in law at the University of Lucerne after completing her Bachelor’s degree at the ZHAW School of Management and Law in Winterthur. At BPS Legal she can complement her theoretical knowledge with practical experience.

We wish Lara Salis a good start and look forward to working with her.

Dear Partners and Clients

The year is approaching its end. We would like to thank you for the excellent cooperation this year and look forward to more pleasant encounters next year. We wish you a Merry Christmas and a Happy New Year.

Our office will be closed from the afternoon of December 24, 2024 until and including January 3, 2025. In urgent cases, please contact us at info@bps-legal.ch.