OGer GL: Pro­hi­bi­ti­on to use evi­dence in case of non-trans­pa­rent recor­ding of conversation

The Sta­te and Youth Prosecutor’s Office of the Can­ton of Gla­rus had issued a penal­ty order for attempt­ed simp­le bodi­ly harm and ver­bal abu­se. As pro­of of the ver­bal abu­se, the vic­tim had sub­mit­ted a CD with recor­dings that had appar­ent­ly been made while the per­pe­tra­tor had been doing gar­dening work in the adja­cent property.

The Gla­rus High Court rejects this CD from the files (Decis­i­on OG.2022.00037 of 28.7.2023). The audio recor­dings had not been made in a punis­ha­ble man­ner becau­se the recor­ding did not con­cern a non-public con­ver­sa­ti­on within the mea­ning of Art. 179bis or 179ter SCC. Becau­se the recor­ded con­ver­sa­ti­on was audi­ble across the neigh­bor­hood street and the per­pe­tra­tor could not assu­me that his state­ments could not also be heard by third par­ties, the­re was also a vio­la­ti­on of the secret or pri­va­te sphe­re within the mea­ning of Art. 179quater SCC (fol­lo­wing BGE 146 IV 126 – Prac­ti­ce Change).

Howe­ver, the recor­dings were con­tra­ry to data pro­tec­tion: the Prin­ci­ple of reco­gniza­bi­li­ty Art. 4 (4) aDSG (now impli­cit in Art. 6 (3) DSG) was vio­la­ted, and con­tra­ry to the lower court, this vio­la­ti­on was not justi­fi­ed by over­ri­ding inte­rests:

Alt­hough on the part of the data pro­ces­sor […] a pri­va­te inte­rest in data pro­ce­s­sing, inter alia for his own secu­ri­ty or for the pro­tec­tion of rights, can cer­tain­ly be reco­gnized and ack­now­led­ged […], this is off­set on the part of the inju­red per­son (here: the appel­lant) by a signi­fi­cant public (and pri­va­te) inte­rest in an moni­to­ring-free sta­te vis-à-vis, […] […] the recor­ding in que­sti­on here is pre­cis­e­ly in such a lar­ger con­text of obser­va­ti­on and sur­veil­lan­ce to gather evi­dence of pos­si­bly cri­mi­nal­ly rele­vant con­duct on the part of the appellant […]. 

The legal system, howe­ver, reco­gnizes the right invo­ked by the pri­va­te plain­ti­ff ana­log­ous­ly “Evi­dence emer­gen­cy” does not […]. Also in accordance with the case law of the Fede­ral Supre­me Court, the lack of evi­dence is to be denied as justi­fi­ca­ti­on (judgment BGer 6P.79/2006 of Octo­ber 6, 2006 E. 8.). In con­trast, the lawful­ness of the pro­ce­s­sing of per­so­nal data in good faith within the mea­ning of Art. 4 DPA repres­ents the cor­ner­s­tone of the enti­re data pro­tec­tion system […]. The recor­dings were made against good faith and were not reco­gnizable as such for the appel­lant – thus he seems to have assu­med that only pho­to­graphs were taken […]. Thus, in con­trast to the lower court, it must be assu­med that the­re was no pre­do­mi­nant inte­rest and the­r­e­fo­re that the recor­ding was unlawful.

This could have been seen dif­fer­ent­ly. The com­ment that the lega­li­ty of the pro­ce­s­sing is a cor­ner­s­tone is cor­rect, but not a cri­ter­ion for weig­hing inte­rests. Whoe­ver shouts swear words in the neigh­bor­hood must pro­ba­b­ly assu­me that he or she can be recor­ded. Appar­ent­ly, the OGer saw the spe­cial inte­rest of the per­pe­tra­tor in the fact that his vic­tim had more or less per­ma­nent­ly tried to coll­ect evi­dence, which is why an inte­rest in a “sur­veil­lan­ce-free con­di­ti­on” had to be assu­med. If it had only been a mat­ter of sel­ec­ti­ve beha­vi­or, the weig­hing would pro­ba­b­ly have been different.

Becau­se the char­ges to be jud­ged con­cer­ned tri­vi­al mat­ters, in the eva­lua­ti­on of the Supre­me Court, an explo­ita­ti­on of evi­dence was out of the que­sti­on (Art. 141 para. 2 Cri­mi­nal Pro­ce­du­re Code: “Evi­dence that cri­mi­nal aut­ho­ri­ties have obtai­ned in a cri­mi­nal man­ner or in vio­la­ti­on of vali­di­ty regu­la­ti­ons may not be exploi­ted, unless its explo­ita­ti­on is indis­pensable for the cla­ri­fi­ca­ti­on of serious cri­mi­nal offences”).




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