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03 November 2020
In principle, Swiss law does not allow audio or video recordings to be made without the consent of the persons concerned. Consequently, such materials are generally of no avail in criminal proceedings. However, in two recent decisions, the Federal Supreme Court dealt with certain exceptions to this rule and confirmed a clear-cut distinction as to when such recordings should be admitted.
In the first decision, the Supreme Court held that privately obtained recordings can be admitted in criminal proceedings if they are indispensable to the investigation of serious crimes.(1) In the second decision, it confirmed that such recordings cannot be admitted when only minor traffic violations are at issue.(2)
The first decision dealt with video footage of a car accident. While celebrating the outcome of a football game along with other cars in a motorcade, the accused had lost control of his car and almost collided with several people. Several eyewitnesses recorded the accident by chance. Based on the video footage, the driver was accused of committing a serious violation of the Road Traffic Act. Hence, the relevant procedural question was whether the eyewitnesses' video footage was admissible in the criminal proceedings.
In the second decision, a similar question was at issue – namely, whether recordings from the dashcams of other traffic participants could be admitted in the proceedings. However, unlike the first case, the second dealt with an allegation of only minor violations of the Road Traffic Act.
As Swiss law does not allow audio and video recordings to be made without the consent of the persons concerned, the crucial question in both cases was whether, and to what extent, such evidence could be admitted in criminal proceedings.
The Criminal Procedural Code provides a rule as to whether evidence obtained in an unlawful fashion by criminal authorities can be admitted in criminal proceedings. Although this rule does not apply to evidence obtained by private parties, the Supreme Court held that it can be applied by analogy because – at least from the accused's perspective – it is irrelevant who has gathered the evidence. Yet, evidence obtained by private parties can be admitted if the criminal authorities could have lawfully gathered the evidence themselves and if the public interest of law enforcement outweighs the interests of the accused. The latter requirement is fulfilled if the evidence in question is indispensable to the investigation of a 'serious crime', (ie, a crime that is punishable with at least three years' imprisonment).
In the first case, dealing with the out-of-control vehicle during the motorcade, the Supreme Court held that the eyewitness recordings were admissible because serious violations of the Road Traffic Act were at stake and the evidence could theoretically have been gathered by the criminal authorities (ie, the police patrol at the scene). In contrast, the Supreme Court did not admit the dashcam evidence in the second case as this case concerned only minor violations of the Road Traffic Act.
The Supreme Court's decisions align with its previous case law and underpin the importance of the question of admissibility of evidence obtained by private parties, particularly in light of the increased dissemination of video surveillance and use of devices with inbuilt recording functions. These decisions further demonstrate that the admissibility of such recordings in criminal proceedings is assessed on a case-by-case basis. Hence, the requirements for admissibility are crucial.
Accordingly, the question of admissibility is assessed by considering whether:
Although the present decisions were rendered in the context of Road Traffic Act offences, the underlying principles apply to all criminal proceedings. Hence, evidence obtained by private parties without the consent of the parties concerned can, subject to the requirements discussed above and any prohibited methods of taking of evidence, such as deception, be admitted in any criminal proceeding. In addition to video recordings, this could include recordings of conversations held in person, over the phone or online.
The question of admissibility is not limited to criminal proceedings. However, civil proceedings do not deal with criminal offences, so a distinction based on the potential criminal penalty is unsuitable. Rather, the Civil Procedure Code limits admissibility to cases where the public interest in finding the truth clearly prevails.
For more information please contact Janine Häsler or Nico Ravazzolo at Lenz & Staehelin by telephone (+41 58 450 80 00) or email (firstname.lastname@example.org or email@example.com). The Lenz & Staehelin website can be accessed at www.lenzstaehelin.com.
(1) Further information on the decision of 17 August 2020 (6B 1404/2019) is available here.
(2) Further information on the decision of 26 September 2019 (6B 1188/2018) is available here.
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