The Federal Supreme Court has ruled in the Judgment 6B_1188/2018 of 26 September 2019 to controversial issue under which circumstances private recordings from dashcam cameras can be used in criminal proceedings. The District Court of Bülach had affirmed the usability in the present case, as did the Higher Court of Zurich.
The BGer starts from the established practice,
that evidence obtained illegally by private persons can only be used if it could have been lawfully obtained by the prosecuting authorities and a cumulative weighing of interests speaks in favor of its use […].
In the weighing of interests, it was also necessary to depart from the statutory weighing of interests in Art. 141 para. 2 StPO to be assumed:
2 Evidence that criminal authorities have obtained in a criminal manner or in breach of validity regulations may not be used unless its use is essential for the investigation of serious criminal offences.
Although this provision refers only to evidence collected by criminal authorities, it also applies to private individuals, because:
From the point of view of the accused person, it is irrelevant by whom the evidence was collected that he or she is confronted with in criminal proceedings against him or her. It therefore seems appropriate to apply the same standard for the weighing of interests in the sense of the above-mentioned case law as for evidence collected by the state.
Next, dashcam recordings are not recognizable and therefore contrary to data protection (Art. 12 para. 2 lit. a FADP), which is probably correct, but leads to the exciting question of whether a justification within the meaning of Art. 13 para. 1 FADP leads to the fact that the justifiably collected evidence contrary to data protection becomes usable. The Federal Supreme Court answered this question in the negative, because different criteria apply in criminal proceedings than in private data protection law:
The question of whether a justification pursuant to Art. 13 (1) FADP exists must be weighed against the interests of the data processor and those of the injured person […]. On the other hand, when it comes to the question of the usability of evidence in criminal proceedings, the state’s claim to punishment and the accused person’s claim to a fair trial are primarily decisive; the interests of the private data processor take a back seat.
Since the collection of evidence was therefore unlawful and did not serve to clarify a serious crime, the dashcam recordings were not usable.
The ruling is strict and leaves questions open or offers starting points for criticism:
- If the data collection was justified under data protection law (which was not to be examined here, but is justifiable), to what extent would the right to a fair trial be violated? After all, the justification of the non-transparent recording would also have to take into account the fact that the dashcam recordings serve to preserve evidence, also with regard to criminal proceedings; the balancing of interests in data protection law is comprehensive. In other words, shouldn’t the concerns of the Federal Supreme Court have been included in the balancing of interests under data protection law, instead of just excluding this balancing here? In any case, the result of the Federal Supreme Court’s approach is merely to completely exclude the interest in dashcam recordings.
- Does it really make no difference to the person concerned whether Law enforcement collect evidence in an unlawful manner or whether Private Collecting evidence in violation of transparency rules? The interests of the person concerned are completely different in each case. And this is all the more true if the private recording were materially justified. It would have been all the more important to examine this question.
- The prohibition of the use of illegally obtained evidence is also justified by the unity of the legal order. But doesn’t the unity of the legal order require that the justification under data protection law also permits exploitation in criminal proceedings?
In any case, it cannot be inferred from the ruling that evidence obtained in violation of data protection also in civil proceedings are only usable in rare exceptions. Here, according to Art. 152 Para. 2 ZPO, a free balancing of interests applies; a legal concretization or balancing is missing. This can play a role in the employment context, for example, if an employer has collected information about violations in a way that may not meet all the requirements of data protection law – which are particularly vague in this case.