Octopus Cybercrime Community

Switzerland’s existing law already sufficed most of the Convention’s requirements. Thus, the implementation of a specific Cybercrime Law was not indicated. However, to fully meet the Convention’s requirements, Article 143^bis of the Swiss Criminal Code (SCC) had to be slightly amended, and Article 18b of the Federal Act on International Mutual Assistance in Criminal Matters (IMAC) was introduced.

The Swiss Criminal Code includes the following crimes as defined by Articles 2-9 of the Cybercrime Convention: unauthorised obtaining of data (Article 143 SCC), unauthorised access to a data processing system (Article 143^bis SCC), damage to data (Article 144^bis SCC), computer fraud (Article 147 SCC, including, among others, phishing, fraudulent property advertisements, fraudulent requests for financial assistance), as well as forgery of a document (Article 251) and illegal pornography (Article 197 SCC). Article 10 of the Cybercrime Convention is embodied in Articles 67-69a of the Federal Act on Copyright and Related Rights.

In accordance to the Budapest Convention, Article 143^bis of the Swiss Criminal Code (SCC) was extended by a second paragraph, which now allows the prosecution of a person who markets or makes accessible passwords, programs or other data that are intended to be used to commit an offence under the first paragraph.

In regard to the Swiss Criminal Procedure Code (CrimPC), no amendments were deemed necessary, as a thorough execution of all provisions in question is already permitted. .

According to Article 246 CrimPC, data carriers and equipment for processing and storing information may be searched, if it is suspected that they contain information that is liable to seizure.

Under strict circumstances, the public prosecutor may request metadata relating to the location and identification of a person under surveillance (Article 273 CrimPC).

As general rules and safeguards apply, coercive measures can only be applied if permitted and defined by the CrimPC, and if the respective requirements are fulfilled.

Article 248 CrimPC explicitly guarantees the right to have certain evidence sealed. Thus, records and property that according to the proprietor may not be searched or seized due to the right to remain silent or to refuse to testify or for other reasons must be sealed and may neither be inspected nor used by the criminal justice authorities. If the criminal justice authority wants to inspect or use the sealed records, it has to file a request for the removal of the seal, either before the compulsory measures court, or before the court before which the case is pending.

Beside the Swiss Criminal Code and the Swiss Criminal Procedure Code, the following Acts also include important provisions regarding cybercrime:

• Federal Act on Data Protection (FADP; CC 235.1 revised on 1 March 2019)
• Federal Act on International Mutual Assistance in Criminal Matters (IMAC; CC 351.1 status as of 1 March 2019)
• Telecommunications Act (TCA; CC 784.10 revised on 1 March 2018)
• Federal Act on Copyright and Related Rights (CopA; CC 231.1 revised on 1 January 2017)
• Federal Act on the Surveillance of Post and Telecommunications (SPTA; CC 780.1 revised on 1 March 2018)
• Ordinance on Internet Domains (OID; CC 748.104.2 revised on 1 January 2018)

Note: English is not an official language of the Swiss Confederation. These translations are provided for information purposes only and have no legal force.

Switzerland ratified most of the treaties and conventions on international cooperation in criminal matters from the Council of Europe (ETS 024; 030; 086; 090; 098; 112; 167; 182; 190; 209; 212 and 222) and the UN treaties against terrorism, corruption and organized crime. Swiss authorities use the Swiss Criminal Code, the Swiss Criminal Procedure Code, the Federal Act on International Mutual Assistance in Criminal Matters and other domestic laws to fight cybercrime. The IMAC has several provisions used to fight cybercrime: for example provisions on provisional measures, obligation of promptness, surveillance of postal and telecommunications traffic, electronic communications traffic data, compulsory measures, application of foreign law, presence of persons participating in proceedings abroad, the principle of “ne bis in idem”, the principle of “speciality”, spontaneous transmission of information and evidence, foreign investigative measures or extradition, as well as transfer of proceedings or enforcement of criminal judgements (enforcement order and use of Swiss institutions by foreign States).

To embody Articles 30 and 33 of the Convention, the IMAC was slightly modified. The newly introduced Article 18b IMAC allows the authorities, under certain circumstances, to order the transmission of electronic communications traffic to another State before the mutual assistance proceedings are concluded.