The Federal Supreme Court has ruled on this matter in the Federal Supreme Court’s Media release (31.10.2023) announced decision 6B_821/2021 on the question of the conditions under which Illegally obtained evidence can be used in criminal proceedings are.
The starting point was a judgment by the Criminal Court of the Canton of Lucerne (confirmed on the guilt point by the Cantonal Court of Lucerne), which had convicted the complainant of various offenses, including violations of the SVG. The conviction was based on video recordings that had been found on a memory card in a GoPro camera during a house search against the complainant’s father.
The Federal Supreme Court considers the use of this evidence to be admissible. It is true that the house search against the father was unlawful because it was neither suitable nor necessary to find evidence of the offense in question (the speeding). However, according to Art. 141 para. 2 of the Code of Criminal Procedure, evidence that was obtained in a criminal manner or in violation of validity provisions may be used, provided that its use Essential for the investigation of serious crimes is.
It is a Weighing of interests to be carried out: The more serious the offense to be judged, the more likely it is that the interest in establishing the truth will prevail.
Whether an offense is “serious” depends on the seriousness of the specific offense and not on an abstract assessment of certain facts or threats of punishment. In the present case the Federal Supreme Court affirms that a serious offense has been committedand the public interest in the investigation of the offenses outweighs the private interest in the unusability of the video recordings:
- The complainant had repeatedly and knowingly fulfilled the elements of Art. 90 para. 3 and para. 4 lit. b and c SVG (intentional violation of elementary traffic rules with a high risk of an accident with serious injuries or fatalities) and deliberately endangered not only the legal interest of road safety but also that of life.
- In the present case, this (serious offense) also applies to violations of Art. 90 Para. 2 (gross violation of traffic regulations with serious danger to the safety of others) due to the following circumstances: Overtaking with obviously excessive speed, massive endangering of a motorcyclist approaching from the opposite direction, driving in a blind right-hand bend on the left-hand lane. Here, too, the interest in clarification prevailed.
The ruling of the Federal Supreme Court cannot be generalized insofar as it depends on the circumstances of the individual case. Accordingly, not all violations of Art. 90 para. 2 and 3 (4) SVG are to be classified as serious offenses without consideration.