- The ECtHR found that systematic observation and video recording of insured persons interferes with their protected private and family life (Art. 8 ECHR).
- The current legal bases in the ATSG and UVG are not sufficiently clear and do not offer sufficient protection against abuse, therefore the monitoring is not justified.
The ECtHR has ruled in the Judgment 61838/10 of October 18, 2016 against Switzerland. The appeal to the ECtHR concerned the judgment 8C_629/2009which had allowed the use of a surveillance report and video footage when examining an insurance claim against Zurich Insurance. The judgment was based directly on the leading decision BGE 135 I 169. In it, the BGer had come to the following conclusion:
In summary, it should be noted that the order of surveillance of insured persons by the accident insurance is permissible within the framework outlined in E. 4.3; the results of observation can thus in principle be used for the assessment of the disputed issues. […] However, the records and reports of the private investigators can only have evidentiary value insofar as they show activities and actions that the insured person has performed without the influence of the observing persons. […]
The ECtHR, on the other hand, comes to the conclusion that the surveillance of insured persons and the recording of video material interferes with the protected private and family sphere (Art. 8 ECHR) and that a justification by law (Art. 8 para. 2 ECHR) fails in the present case, because the applicable legal bases in the ATSG and UVG are neither sufficiently clear nor offer sufficient protection against abuse:
- The concept of “private and family life” in Art. 8 ECHR is to be interpreted broadly. It also includes a borderline area of interaction with other persons, even in public spaces. The protected interest of Art. 8 ECHR, the undisturbed development of the personality of the individual in his or her relationship with others, can therefore be impaired by measures taken outside private spaces.
- Against the background of the ECHR case law, the systematic observation and documentation of the complainant by the insurer constitutes a restriction of her protected private and family life.
- Justification by law within the meaning of Art. 8 (2) ECHR can only be considered if, among other things, the legal basis is sufficiently clear and its consequences are foreseeable. In the context of surveillance activities, this does not mean that the surveillance is so precisely foreseeable that the individual can adjust his or her behavior accordingly. However, the legal basis must be clear enough to allow the individual to reasonably assess the circumstances and conditions of the surveillance. Furthermore, the law must provide sufficient protection against abuses.
- In the present case, the use of detectives was based on Art. 28 Para. 2 and 43 ATSG in conjunction with Art. 96 lit. b UVG. Art. 96 lit. b UVG. These provisions obligate the insured person to cooperate in the assessment of the claim and provide for clarifications by the insurer. However, they are not sufficiently clear, and they do not provide sufficient protection against abuses.