BGer 6B_181/2018: Usa­bi­li­ty of poli­ce video record­ings in busi­ness pre­mi­ses on sus­pi­ci­on of theft

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).