- The Federal Supreme Court applies a strict standard: video recordings made privately without consent are considered unlawful and can only be used to investigate serious criminal offenses.
- The complaint of inadmissibility due to a violation of the DPA was submitted late; the court dismissed the complaint for lack of a timely objection.
The Federal Supreme Court has recently dealt several times with the usability of private video recordings in connection with road traffic offenses, applying a strict standard. Accordingly, recordings obtained without consent are unlawful and must be treated as if they had been provided by the authorities themselves. Utilization is therefore only possible for the Detection of serious crimes in question (BGE 146 IV 226, 6B_810/2020, 6B_1282/2019, 6B_1288/2019).
The complainant referred to this case law in the latest judgment 1C_415/2020 of 17 February 2021 and claimed that the recordings of a dashcam in question were made in disregard of Art. 4 DPA and were therefore irrelevant for the purposes of criminal proceedings (E. 2.1). The Federal Supreme Court did not go any further on this material level in this ruling, but invalidated the complaint formally:
“The complainant, who is represented by a lawyer, fails to recognize that the objection that evidence is not admissible within the meaning of Art. 140 f. StPO, not only in administrative law administrative proceedingsbut should already have been introduced in the criminal proceedings […].” (E. 2.3.1).
The fact that the invoked provisions of the FADP applied unchanged when the penalty order became final and the usability of private video surveillance was already “extremely controversial” there did not benefit the complainant. Since his argument was late, the Federal Supreme Court left it at the established facts (E. 2.3.2) and dismissed the appeal insofar as it was accepted.