- Court confirms usability of a secret patient recording as evidence despite possible violation of Art. 179ter StGB after weighing up interests.
- Public interest in establishing the truth and sufficient suspicion of a serious catalog offense (sexual assault) outweigh personal rights.
The Geneva Chambre pénale de recours had to deal with the question of whether a secretly made audio recording of a medical conversation used as evidence in criminal proceedings may be used. It confirmed the usability despite a possible violation of Art. 179ter SCC (decision of January 8, 2026, ACPR/27/2026).
The case concerned an allegation of sexual assault of a patient by a doctor in Geneva. The patient returned days later for a wound check and recorded her conversation with the doctor, in which he admitted the offense.
For evidence collected by private individuals, there is no explicit regulation on usability in the event of inadmissible procurement. However, the Federal Supreme Court has developed a test (1B_91/2020, March 4, 2020, E. 2.2):
- Could the criminal authorities have obtained the evidence legally?
- Does a balancing of interests justify the exploitation?
- There must then have been sufficient grounds for suspicion of a serious criminal offense at the time of the recording.
In this case, the Geneva Chamber affirmed the usability:
- The public prosecutor’s office could have ordered technical monitoring of the conversation if it had been aware of the incidents at an early stage.
- Sexual assault is a catalog offense under Art. 269 para. 2 of the Code of Criminal Procedure and entitles the court to order surveillance.
- The principle of subsidiarity StPO 269 I lit. c: other measures must have remained unsuccessful or be pointless) does not apply to private recordings (6B_786/2015, February 8, 2016, E. 1.3.1).
- The public interest in establishing the truth outweighs the personal rights of the accused:
- Sexual assault is a crime that violates an extremely important legal right: sexual integrity;
- the recording was significant for the credibility assessment of the parties’ statements;
- there was already sufficient suspicion at the time of admission, even if the criminal complaint had not yet been filed.
The background was not medical confidentiality (Art. 321 StGB), because the patient and not the doctor is the owner of the secret.