In a ruling 1B_595/2022 In its decision of December 23, 2022, which was not intended for publication, the Federal Supreme Court examined the validity of the consideration of potentially illegal and therefore unusable evidence when examining whether the conditions of pre-trial detention have been met by the Court of Coercive Measures (hereinafter: “CCM”).
The public prosecutor’s office of the canton of Zug is conducting a criminal investigation against A. for sexual acts against children and pornography. A. is suspected of having distributed, from Switzerland, child pornography content on chat rooms to individuals domiciled abroad, using the VPN connection of a university, on November 28, 2021 and February 19, 2022.
In the course of the investigation, the Public Prosecutor’s Office obtained directly from the university the personal data, address and user ID of the subscriber to whom a specific IP address used on November 28, 2021, was attached, which was transmitted by the Austrian Public Prosecutor’s Office in the context of a mutual assistance procedure.
The TMC ordered the provisional detention of A. admitting the existence of sufficient suspicions of the commission of an offence on the basis of the data communicated by the High School which would have made it possible to confuse A.
A. has appealed against this decision on the grounds that the data collected includes both subscriber data and secondary data subject to authorization, so that the evidence collected is clearly not usable within the meaning of Art. 141 al. 1 CPP. In addition, the Public Prosecutor’s Office would have had to go through the Service Surveillance de la correspondance par poste et télécommunication (hereinafter: “SCPT Service”) to collect the data from the High School, as the law excludes a direct production of data between the service provider and the Public Prosecutor’s Office.
In fact, in the case of offences committed through the Internet, Art. 22 para. 1 of the Federal Act on the Surveillance of Postal and Telecommunications Traffic (LSCPT) stipulates that service providers must provide the SCPT Service with all information (including retroactive information) that can be used to identify the author. Information must be obtained through the SCPT Service and cannot be collected directly from the service provider. Only “subscriber data” are covered by such a communication, i.e. the identity of a registered holder of a telecommunication connection or of the recipient of a bill. Subscriber data are opposed to “secondary data”, i.e. data indicating with whom, when, for how long and from where the monitored person has been or is in communication, as well as the technical characteristics of the communication in question (art. 8 let. b LSCPT). This secondary data can only be collected under the conditions of Art. 273 para. 1 CCP, the surveillance must be authorized by the TMC (art. 274 CCP).
In this decision, the Federal Supreme Court recalls first of all that, during the detention review procedure, the TMC excludes from its assessment means of proof that are manifestly unusable, because the exploitation of a means of proof is above all the responsibility of the judge on the merits (recital 5.1). A piece of evidence can thus be taken into consideration when examining the existence of sufficient suspicions if its usability can be considered prima facie (Federal Court decision 1B_159/2022 of April 13, 2022 considering 4.1).
During the investigation, the prosecution explained that it knew both the IP address and the time of the communication at the time of the data production order. The college only provided registration data, which would be subscriber data and not secondary data.
In this respect, the Federal Court had already held that when the prosecuting authority has knowledge of an e-mail address (respectively an Internet connection), the registration data constitute mere information on the subscriber data, which is not subject to authorization. If, on the other hand, the prosecuting authority has to search for assigned IP addresses and registered customers (collection of IP histories) or request data on communications traffic (“who, when and with whom” was “connected” via the Internet) in order to identify connections and users, this is secondary data subject to the requirements of Art. 273 CPP (ATF 141 IV 108, translated in JdT 2015 IV 207 recitals 5.1 and 6.2).
In this case, the Federal Court found prima facie that the personal data, address and identifier assigned to a specific IP address used on November 28, 2021, transmitted by the University of Applied Sciences correspond to subscriber data not subject to authorization. Thus, the evidence does not appear to be immediately unanswerable, so that the TMC could base the existence of sufficient suspicion on this basis. However, our High Court reminds us that it will be up to the trial judge to determine whether the data constitute subscriber data or secondary data.
With regard to the direct transmission of information by the University to the Public Prosecutor’s Office, the Federal Court found that the data should have been requested through the SCPT. However, the Mon Repos judges did not decide the question of the legal consequences of circumventing the rules of art. 22 al. 1 LSCPT [rule of validity (art. 141 al. 2 CPP) or simple prescription of order (art. 141 al. 3 CPP)]. The Federal Court notes only that neither the PPC, nor the SCPT Act, nor the Ordinance of November 15, 2017 on the Surveillance of Correspondence by Post and Telecommunication (OSCPT) expressly provide for the non-exploitability of information that would not have been obtained through the SCPT Service. Once again, the TMC could therefore prima facie rely on this evidence to determine whether there was sufficient suspicion.
While the reasoning of the Federal Court is convincing, the fact remains that the detention of the appellant could in fine The decision was based on inoperable evidence and could not have been made if an authority had been able to examine the operability of the evidence with full power of review. The Federal Court had already recalled that a cantonal appeal was admissible against an order refusing to remove allegedly unusable evidence from the file, so that the defendant can always request its removal during the investigation (Federal Court decision 1B_485/2021 of November 26, 2021, summarized here : https://www.penalex.ch/jurisprudence/exigence-dun-prejudice-irreparable-pour-la-recevabilite-du-recours-cantonal-alors-non-ca-cest-seulement-pour-le-tf/). Nevertheless, the review authority’s power of review is again limited: the Federal Supreme Court has clarified that the review authority may reject the appeal if the unworkability is not obvious from the outset and that a weighing of interests is required. The trial judge would thus be in the best position to examine this question in light of all the evidence.