- Information from the private life of an administrative employee does not fall within the scope of protection of Art. 320 StGB.
- Violation of constitutional rights is only a criminal offense if a corresponding criminal provision is applicable and the factual nature, illegality and guilt are not excluded.
- The element of the offense of “obtaining personal data” pursuant to Art. 179novies StGB is not fulfilled if only the person and not a technical barrier was overcome.
- Marginal data from private telephone conversations are neither considered personal data worthy of special protection nor a personality profile within the meaning of Art. 179novies StGB.
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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