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”).