After the unsolicited analysis of telephone data of a municipal employee, questions of violation of official secrecy (StGB 320) and unauthorized acquisition of personal data (StGB 179) arose.novies):
Art. 179novies and 320 StGB; Art. 3 DSG; Art. 8 No. 2 ECHR. Information from the private life of an employee of the administration does not fall within the scope of protection of Art. 320 StGB (E. 3.1). The violation of constitutional rights is only relevant in criminal proceedings if the violation is also sanctioned by a criminal norm and, with regard to this norm, conduct that is constituent, unlawful and culpable cannot be denied without further ado (E. 3.2). The element of obtaining personal data within the meaning of Art. 179novies StGB is not fulfilled if no technical barrier is overcome, but only the human being as a barrier. (E. 3.3.1). Marginal data of private telephone conversations do not constitute personal data requiring special protection or a personality profile within the meaning of Art. 179novies SCC (E. 3.3.3).
(The Federal Supreme Court dismissed the appeal under constitutional law filed against this on February 24, 2003).
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