Violation of official secrecy and life-size “Who is it?” at the Vaud MPC?

Life-size “Who is it?” at the MPC in Vaud?

Do you remember the game that enlivened so many winter evenings in our earliest childhood, and which is probably no stranger to our interest in investigation and our vocation as criminal lawyers: “Who is it?

“Does she have a big nose?

No

Is she wearing a hat?

Yes

I’ve found it! It’s Maria.

Well, we learned last week that, in true ” Who is it?” style, the Attorney General of the canton of Vaud, with the help of other prosecutors, had heard 92 male members of the Grand Council (out of 100 summoned) as part of an investigation into a breach of official secrecy, following a leak to the press linked to the Paychère report.

As a reminder, on August 16, 2025, in an article in Le Temps entitled ” Le rapport Paychère sur le bouclier fiscal est retardé ” ( The Paychère report on the tax shield has been delayed ), two elected representatives reportedly informed the newspaper of the content of the report even before its official release. Following a criminal denunciation by the State Council, the Public Prosecutor opened an investigation for breach of official secrecy in order to identify the elected representatives mentioned in the aforementioned article. Members of the Vaud Grand Council are subject to official secrecy in their capacity as deputies and committee members (art. 12 LGC/VD).

This approach raises a number of questions. We will examine three of them.

1. (Dis)proportionality

Firstly, this measure is exceptional and (dis)proportionate.

The Code of Criminal Procedure stipulates that the criminal authorities, and in the first instance the Public Prosecutor’s Office, must investigate all facts relevant to the classification of the act and the judgment of the accused (art. 6 CPP).

As part of its search for evidence, the public prosecutor may order coercive measures, including the attendance of witnesses (art. 201 CCP), provided that the measure complies with the principle of proportionality (art. 197 CCP). In particular, the aims pursued by the coercive measure cannot be achieved by less severe measures (art. 197 al. 1 let. c CCP) and it must appear justified in view of the seriousness of the offence (art. 197 al. 1 let. d CCP).

In this case, the underlying offence is a breach of official secrecy, for which the penalty is a three-year prison sentence. Although this is a relatively serious offence, it remains a simple misdemeanour and not a felony (an offence for which the penalty is always more than three years’ imprisonment). It is true that some offences are more serious than others, particularly in terms of the legal assets they damage and their consequences. We are thinking in particular of negligent homicide, which is also a crime, but whose legal asset is nothing less than human life. In this case, the legal asset in question is the proper functioning of institutions – an important legal asset, but one that is far removed from the protection of life. As for the consequences, the breach of secrecy would have enabled Le Temps to learn in advance of the publication of the Paychère report. The proportionality of interviewing 92 MPs for such an offence, a measure which also mobilized several public prosecutors, could be questioned.

Indeed, while the question of proportionality is generally approached from the angle of the incisive nature of the measure as such, i.e. from what might be termed a qualitative point of view, in our view the question of proportionality should also be considered from a quantitative point of view. Thus, depending on the seriousness of the offence being prosecuted, replicating the same investigative measure, which is not incisive in itself, could prove disproportionate in terms of cost and commitment of resources for the prosecuting authority. This is an argument that is often put forward by litigants – who will all recognize themselves without exception – when they wish to have several witnesses heard in proceedings. Try asking to hear 5 witnesses in an ordinary case, and you’ll often be told by the public prosecutor or the court that the request is disproportionate and that you should reduce your list of witnesses to a maximum of two! So imagine asking to hear 92 witnesses…

2. The fishing trip or Who’s that?

Secondly, in a press release, the Attorney General clarified that ” the violation of official secrecy is not alleged against these persons, but rather against the person or persons who may have communicated to them all or part of the contents of the report ” (” VD : plus de 90 députés masculins auditionnés au Ministère public “, swissinfo.ch, October 9, 2025). As such, the Attorney General “hopes that these witnesses will be able to contribute to the progress of this criminal investigation into an issue essential to the proper functioning of our institutions “(idem). According to the Attorney General, the “black sheep” is not to be found among the interviewees. However, if the Public Prosecutor’s Office hears 92 male deputies, it is because it does not know who the “informer” is, otherwise the number of hearings would not be justified. The Public Prosecutor’s Office is in exactly the same position as the Who is this? player at the start of the game, who hasn’t the slightest idea of which suspect to identify. This is what is known in the jargon as a ” fishing expedition “, generally proscribed in criminal procedure(ATF 149 IV 369), i.e. “when evidence is gathered randomly and without planning”. One goes fishing and casts one’s net to see if a fish will be caught, and if so, of what species. Thus, unless we consider that the informer is in fact “a whistle-blower” – which the public prosecutor may have known – it is perfectly conceivable that the accused elected official(s) were heard by the public prosecutor.

This situation would raise thorny procedural issues, especially since, as explained above, members of the Vaud Grand Council are themselves subject to official secrecy in their capacity as deputies and committee members (art. 12 LGC/VD).

Thus, if the accused is one of the 92 deputies, he should not have been heard as a witness, as this status obliges him to testify (art. 163 al. 2 CPP) but above all to tell the truth at the risk of being prosecuted for perjury (art. 177 al. 1 CPP cum art. 307 CP), whereas the accused has the right to remain silent (art. 113 CPP). The CPP also recognizes the status of a person called to give information (art. 178 CPP), which does not oblige the person heard in this capacity to give evidence, nor does it impose an obligation to tell the truth(ATF 144 IV 28). It should also be noted that the witness may refuse to testify if his statements are likely to implicate him (art. 169 al. 1 let. a CPP). It is up to the competent criminal authority conducting the hearing to decide in what capacity the person heard will be questioned. This decision is taken in the light of the factual and legal situation at the time of the hearing; the decision may therefore become irrelevant if the circumstances that prompted it change ( ATF 144 IV 97 consid. 2.1.3; judgment 1B_584/2022 of April 25, 2023 rec. 3.2).

The tactics adopted by the Public Prosecutor’s Office are dangerous: if the person responsible for the leak (either the original leak or the one that Time learned about in the course of his or her duties) is among the deputies heard, he or she is faced with a Cornelian choice: refuse to testify, invoking the right not to incriminate oneself, which amounts to incriminating oneself, or lie, with the risk of being prosecuted for perjury. In this context, the majority of legal writers consider that the statements of a person heard as a witness when he should have been heard as a defendant are unusable (Sabine Gless, Basler Kommentar Straprozessordnung / Jugendstrafprozessordnung,3rd edition, Basel 2023, N 36a ad art. 141 CPP and references cited). At the very least, for the sake of procedural consistency, the public prosecutor’s office should have heard all the elected representatives in their capacity as persons called upon to provide information, in order to guarantee them more extensive rights.

3. The chain’s last gag

Finally, the last harmful effect of these chain hearings lies in the risk of a gag effect: showing, with the help of press releases … press releases, that the Public Prosecutor’s Office can flex its muscles and implement mass, even massive, investigative measures in the event of a leak to the press. This is to dampen the ardor of those who might aspire to express any other “secrets”. All in all, this show of force looks like a warning to potential whistle-blowers.

In these times, it is important to bear in mind the role, indeed the importance, of a free press in a state governed by the rule of law, since it contributes to the effectiveness of fundamental rights such as the free formation of opinion, freedom of information and freedom of expression. (art. 16 Cst. ).

In the Corona leaks case, the Swiss Federal Supreme Court recently reiterated the absolute protection of journalistic sources, including their assistants, and the consequent prohibition on sequestration(ATF 151 IV 153). Having failed to target journalists, the Public Prosecutor’s Office is now readjusting its aim, this time at the source of the information, and on an unprecedented scale.

In Damman v. Switzerland(ECtHR judgment of April 25, 2006, application no. 77551/01), the ECHR held that the conviction of a journalist for breach of official secrecy violated freedom of the press. In this ruling, the ECHR considered that ” it is for States to organize their services and train their agents in such a way that no information is divulged concerning data considered confidential “. On this basis, is it the role of the Public Prosecutor’s Office to take on the role of “watchdog” for MPs, and ensure that no information is leaked to the press?

Unlike the police, who have preventive prerogatives (art. 1a LPol/VD), the public prosecutor’s office only intervenes when an offence has been committed, which obliges it to open a criminal investigation (art. 309 CPP). The real aim of such proceedings is to unmask the culprit, not to impress the public.

In these circumstances, and in an age of transparency, it is legitimate to ask whether the Public Prosecutor’s Office’s action is really in line with the tasks assigned to it, insofar as its action is in fact aimed at dissuading MPs from any further leaks to the press.

One thing’s for sure: Who is it? is played by two people, with the same rules.

So, thanks to these new investigative techniques from the Public Prosecutor’s Office, we will no longer have to be ashamed when we file lists of several dozen witnesses in the Canton of Vaud, and can proudly rely on a precedent set by the Public Prosecutor.

Did I find it? It’s ….