The Federal Supreme Court had ruled in the Judgment 6B_181/2018 of December 20, 2018 to decide whether Video recordings ordered by the police in the business premises of a company are usable as evidence. Because of Suspicion of theft in his own company, the managing director of the company concerned had filed a criminal complaint against unknown persons. The Cantonal police Solothurn then installed cameras in the affected businessThese were used to monitor an office with a kitchen, where a safe was located, for around five weeks. Customer areas were not monitored. The recordings were made with the consent of the managing directors, but without the knowledge of the recorded employees. The Higher Court of the Canton of Solothurn had sentenced an employee to a fine for multiple petty thefts using individual recording sequences (Judgment STBER.2016.73 of January 4, 2018).
The Federal Supreme Court first addressed the question of whether police video surveillance is at all a Coercive measure within the meaning of Art. 196 StPO constitutes a coercive measure. A coercive measure exists as soon as a procedural act by criminal authorities interferes with fundamental rights in order to secure evidence (Art. 196 lit. a StPO). The Federal Supreme Court concludes, contrary to the opinion of the lower court, that all state data-related activities, and therefore in particular also the police video recordings, interfere with the fundamental right of the convicted employees to privacy and informational self-determination pursuant to Art. 13 BV. The Police video recordings are therefore qualify as coercive measures (E. 4.2).
From state-ordered video recordings were distinguish private evidence collectionThe question is not one of fundamental rights, but rather one of criminal law, labor law, data protection law and personality law (E. 4.3; cf. the comments below).
Furthermore, the Federal Supreme Court – again in contrast to the lower court – clarified that in the present case No valid consent to the interference with fundamental rights took place. The managing directors of the company were
[…] not authorized to consent to the surveillance in place of the complainant [sc. employee] affected by the surveillance and thus to dispose of her fundamental right to privacy or informational self-determination. (E. 4.4)
Subsequently, the Federal Supreme Court held that the coercive measure took the form of the use of technical surveillance devices within the meaning of Art. 280 lit. b of the Code of Criminal Procedure, which was prohibited by the Prosecution ordered (Art. 280 StPO) and by the Compulsory measures court approved (Art. 281 para. 4 in conjunction with Art. 272 para. 1 Criminal Procedure Code). Since the video surveillance was only ordered by the police and not authorized, the findings therefrom were absolutely unusable pursuant to Art. 277 para. 2 Criminal Procedure Code (E. 4.5).
However, the ban on the utilization of evidence ordered by the Federal Supreme Court did not automatically lead to an acquittal. The Higher Court of the Canton of Solothurn will now have to assess whether the other evidence, for example the recording of working hours or interrogations conducted, without the utilization of the video sequences, is sufficient to convict the employee (E. 4.6).
Comments: Distinction from private video surveillance on suspicion of theft.
It is particularly interesting to note the Federal Court’s reference to the Distinction from the private collection of evidence (E. 4.3, with reference to BGer 6B_536/2009 of November 12, 2009 and BGer 9C_785/2010 of June 10, 2011). These two decisions dealt with the question of usability of video recordings made privately by the employer himself without the knowledge of the employees in the cashier’s office of the respective company on suspicion of theft.
In contrast to the assessment of state or police surveillance, the question of whether the video surveillance carried out interfered with the fundamental rights of the monitored persons was not the subject of these decisions. In the Video surveillance under private law Rather, it is a matter of examining criminal (Art. 179quater StGB), labor law (Art. 26 of Ordinance 3 to the Labor Law [ArGV 3]) and data protection regulations (esp. Art. 12 DSG as well as the general data processing principles in Art. 4 DSG). For such private video recordings on suspicion of theft, the following applies in summary (cf. BGer 9C_785/2010 E. 6.3):
- The Federal Act on the Surveillance of Postal and Telecommunications Traffic of October 6, 2000 (BÜPFSR 780.1) shall apply to Privately collected evidence No application.
- The video recordings taken in the cashier’s room fulfilled in casu also not the facts of Art. 179quater StGB.
- Art. 26 para. 1 ArGV 3 is to be interpreted restrictively so that only monitoring systems are prohibited which are likely to affect the health or well-being of employees (BGer 6B_536/2009 E. 3.6.1). Monitoring does not affect the health of workers eo ipso (BGer 6B_536/2009 E. 3.6.2).
- Through video surveillance of the cashier’s office (at least in the cases to be judged) does not monitor the behavior of employees at the workplace over a longer period of time – which would be inadmissible -. but essentially covers the cash register at which the employees are sporadically and briefly were present. According to the Federal Supreme Court, such surveillance is not likely to impair the health and well-being of employees (BGer 6B_536/2009 E. 3.6.3). This is true as long as at least No comprehensive and permanent monitoring takes place and the tapes only subsequently evaluated become (BGer 9C_785/2010 E. 6.7.2, with reference to BGE 130 II 425 E. 6.5).
- According to the Federal Supreme Court, such video surveillance of the cashier’s office also aimed at preventing criminal acts by third parties, which is why the business owner had a considerable interest had any interest in surveillance. Under the given circumstances, the employees’ personal rights were not unlawfully violated by the video camera according to the Federal Court (BGer 6B_536/2009 E. 3.7).
- The private video recordings violated in casu not contrary to Art. 26 ArGV 3 and could be used as evidence (BGer 6B_536/2009 E. 3.8).