SURVEILLANCE EVIDENCE A BREACH OF ARTICLE 8 RIGHTS: ECHR DECISION

October 24, 2016 · by · in Case Management, Civil evidence, Civil Procedure, Uncategorized, Witness statements

In Vukota-Bojic -v- Switzerland the European Court held that the surveillance of an insurance claimant represented a breach of Article 8 rights (but use of that evidence at a hearing was not a breach of Article 6 rights).  It could be a decision of considerable importance, particularly to public authorities.

KEY POINTS

  1. The taking of surveillance evidence secretly on behalf of the state represented a breach of Article 8 rights. (Right to respect for private and family life).
  2. However the use of that evidence at a hearing had not led to a breach of Article 6 rights. (Right to a fair hearing).

THE CASE

The applicant  was injured in an accident and claimed on the compulsory insurance scheme in Switzerland.  The private insurance company that administered the scheme carried out surveillance in public places. That evidence was subsequently admitted at a hearing. The applicant complained that there was a breach of her Article 8 and Article 6 rights.  It could have considerable consequences and highlights the need for surveillance evidence to be regulated.

THE COURT’S DECISION: BREACH OF ARTICLE 8 RIGHTS

The Court considered the competing arguments.
“52. The Court reiterates that “private life” within the meaning of Article 8 is a broad term not susceptible of exhaustive definition. Article 8 protects, inter alia, a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see Peck v. the United Kingdom, no. 44647/98, § 57, ECHR 2003‑I; Perry v. the United Kingdom, no. 63737/00, § 36, ECHR 2003‑IX (extracts); and Köpke v. Germany (dec), no. 420/07, 5 October 2010).
53. The guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. This may include activities of a professional or business nature and may be implicated in measures effected outside a person’s home or private premises (see Peck, cited above, §§ 57-58; Perry, cited above, §§ 36-37; and Benediktsdóttir v. Iceland (dec.), no. 38079/06, 16 June 2009).
54. However, the possibility cannot be excluded that a person’s private life may be implicated in measures effected outside a person’s home or private premises. A person’s reasonable expectation as to privacy is a significant, although not necessarily conclusive, factor (see Perry, cited above, § 37).
55. In the context of monitoring of actions of an individual through the use of video or photographic equipment, the Court has held that the normal use of security cameras as such, whether in the street or on public premises, where they serve a legitimate and foreseeable purpose, did not raise an issue under Article 8 of the Convention (see Perry, cited above, § 38). However, private-life considerations may arise concerning recording of the data and the systematic or permanent nature of such a record (see Peck, cited above, §§ 58-59; and Perry, cited above, § 38).
56. Further elements which the Court has taken into account in this respect include the question whether there has been a compilation of data on a particular individual, whether there has been processing or use of personal data or whether there has been publication of the material concerned in a manner or degree beyond that normally foreseeable (see Uzun v. Germany, no. 35623/05, § 45, ECHR 2010 (extracts)).
57. In a case concerning secret video recording of an employee at her workplace made on the instructions of her employer, the Court found that the covert video surveillance during some fifty hours, the recording of personal data, the examination of the tapes by third parties without the applicant’s knowledge or consent, the use of the videotapes as evidence in the proceedings before the labour courts, and the domestic courts’ refusal to order the destruction of the tapes, had all seriously interfered with the applicant’s right to privacy (see Köpke, cited above).
58. Turning to the present case, the Court must determine whether the use of the footage and images of the applicant in public spaces obtained by secret surveillance constituted processing or use of personal data of a nature to constitute an interference with her respect for private life. In that connection, the Court observes that the applicant was systematically and intentionally watched and filmed by professionals acting on the instructions of her insurance company on four different dates over a period of twenty‑three days. The material obtained was stored and selected and the captured images were used as a basis for an expert opinion and, ultimately, for a reassessment of her insurance benefits.
59. By applying the principles outlined above to the circumstances surrounding the applicant’s surveillance, the Court is satisfied that the permanent nature of the footage and its further use in an insurance dispute may be regarded as processing or collecting of personal data about the applicant disclosing an interference with her “private life” within the meaning of Article 8 § 1.
3. Justification for the interference
60. The Court reiterates that any interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which paragraph 2 of Article 8 refers, and is necessary in a democratic society in order to achieve any such aim (see Kennedy v. the United Kingdom, no. 26839/05, § 130, 18 May 2010).
(a) The parties’ submissions
61. The applicant argued that the surveillance had not been in “accordance with the law”. In particular, the legal provisions on which the surveillance had been based were not sufficiently certain, precise or clear and thus not foreseeable as to their effects, in contrast to, for example, the domestic provisions regulating surveillance carried out by the police.
62. In fact, Articles 28 and 43 of the Social Security Act did not specify when, where and under what conditions surveillance was permissible, the time and length of surveillance measures, how the destruction of material obtained in this way was managed by the surveillance company, how the person monitored could complain about the surveillance and the destruction of the images, or how the person conducting the surveillance had to be trained. The law only vaguely defined that surveillance could be carried out when it seemed to be “objectively justified”, but did not specify this concept further. It follows that the law was not sufficiently clear for it to be “foreseeable”.
63. The applicant further submitted that, according to domestic case-law, the conditions for a surveillance operation to be lawful were the high amount of the claim for damages and inconsistencies in the medical reports at hand. As to the first condition, surveillance would be permissible virtually any time that a victim of a traffic accident claimed a large amount in damages, which was usually the case. As to the second condition, the applicant pointed out that the findings of the medical reports did not depend on the victim of the accident, but on the medical experts in charge, who had often been commissioned by the insurance company itself.
64. The Government argued that the minor interference with the applicant’s Article 8 rights had a basis in domestic law which was sufficiently foreseeable and accessible. In particular, the Federal Court repeatedly recognised that Article 43, read in conjunction with Article 28 (2) of the Social Security Act and Article 96 (b) of the Accident Insurance Act formed a sufficient legal basis for the surveillance of an insured person. The said provisions prescribed surveillance as a measure of last resort used when the insured person did not comply with her or his obligation to provide information requested and the insurance company had to process certain data necessary for it to perform the tasks assigned to it in domestic law. The law allowed the collection of data only in public spaces for a limited period of time and made it available only to a restricted number of persons.
65. Moreover, there were effective procedures guaranteeing the respect of the insured person’s rights. According to the case-law of the Federal Court, the domestic law did not allow intrusion into the intimate sphere of the person being watched, or the commission of any punishable acts against him or her. Insured persons were protected against the abuse of surveillance measures by a number of domestic law provisions, namely Article 28 of the Civil Code and Article 179quater of the Criminal Code. In particular, it was forbidden to contact the insured person in order to interfere with her or his life, surveillance could be performed only for a limited period of time, and collected data could be seen only by a small number of people for the fulfilment of the insurer’s legal tasks.
(b) The Court’s assessment
66. Pursuant to the Court’s case-law, the expression “in accordance with the law” within the meaning of Article 8 § 2 requires, firstly, that the measure should have some basis in domestic law. It also refers to the quality of the law in question, requiring it to be accessible to the person concerned, who must, moreover, be able to foresee its consequences for him. It must also be compatible with the rule of law (see, among many other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000‑V; Uzun, cited above, § 60; and Kennedy, cited above, § 151).
67. The Court has held on several occasions that the reference to “foreseeability” in the context of secret surveillance measures by State authorities could not be the same as in many other fields (see, as a most recent authority, Roman Zakharov v. Russia [GC], no. 47143/06, § 229, 4 December 2015). Foreseeability in that specific context cannot mean that individuals should be able to foresee when the authorities are likely to resort to secret surveillance so that they can adapt their conduct accordingly. However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident. The domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances and conditions under which public authorities are empowered to resort to any such measures (see Leander v. Sweden, 26 March 1987, § 51, Series A no. 116; Uzun, cited above, §§ 61-63; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, §§ 75, 28 June 2007; and Shimovolos v. Russia, no. 30194/09, § 68, 21 June 2011). In view of the risk of abuse intrinsic to any system of secret surveillance, such measures must be based on a law that is particularly precise, especially as the technology available for use is continually becoming more sophisticated (see Uzun, cited above, § 61).
68. In addition, in the context of secret measures of surveillance by public authorities, because of the lack of public scrutiny and the risk of abuse of power, compatibility with the rule of law requires domestic law to provide adequate protection against arbitrary interference with Article 8 rights. The Court’s assessment in this respect depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the kind of remedy provided by the national law (see Uzun, cited above, § 63).
(c) Application in the present case
69. Turning to the present case, it is not in dispute that the surveillance measure applied to the applicant was based on Article 43 read in conjunction with Article 28 (2) of the Social Security Act and Article 96 (b) of the Accident Insurance Act (see §§ 38 and 40 above). These articles, read together, provide that when an insured person does not comply with the obligation to submit the requested information, insurance companies are allowed to take of their own motion the necessary investigative measures and collect necessary information. In particular, they are allowed to process and require to have processed personal data, including sensitive data and personality profiles necessary in order to establish rights to benefits and to calculate, allocate and coordinate them with those from other social insurance funds.
70. There is no doubt that those provisions were accessible to the applicant. What remains to be established is whether they constituted a sufficiently clear and detailed legal basis for the interference at stake in the instant case.
71. In determining whether the provisions of domestic law on which the applicant’s surveillance was based complied with the requirement of “foreseeability”, the Court notes that the said provisions were limited to obliging the insured persons to “provide all information necessary to establish their rights” (Article 28 (2) of the Social Security Act), allowing insurance companies to “take investigative measures and collect the necessary information” (Article 43 of the Social Security Act) as well as to “process and require [the processing of] personal data” (Article 96 of the Accident Insurance Act) in order to carry out their duties when an insured person refused to cooperate by providing the necessary information herself or himself. In the Court’s view, the said expressions did not seem to either expressly include or even imply the recording of images or videos among the investigative measures that could be deployed by insurance companies. However, it observes that the domestic courts, which are primarily called upon to interpret and apply domestic law (see, among many other authorities, Kopp v. Switzerland, 25 March 1998, § 59, Reports 1998‑II), concluded that the said provisions covered surveillance in such circumstances (see §§ 35 and 43 above).
72. In examining whether domestic law contained adequate and effective guarantees against abuse, the Court takes note of the Government’s argument that Article 28 of the Civil Code and Article 179quater of the Criminal Code, coupled with the case-law of the Federal Court (see § 43 above), constituted sufficient safeguards against abuse of secret surveillance measures as they restricted the measure to the actions taken in public and forbid the making of contact with the insured person with the aim of interfering in his or her life.
73. While the above jurisprudence of the Federal Court did provide for certain safeguards as regards the scope of the surveillance measure as argued by the Government (see § 43 above), given the overall lack of clarity of domestic law provisions on the matter, the Court is not satisfied that they were sufficient to constitute adequate and effective guarantees against abuse.
74. In particular, the Court observes that neither the above provisions nor the cited jurisprudence indicated any procedures to follow for the authorisation or supervision of the implementation of secret surveillance measures in the specific context of insurance disputes. Furthermore, in the absence of any details as regards the maximum duration of the surveillance measures or the possibility of their judicial challenge, insurance companies (acting as public authorities) were granted a wide discretion in deciding which circumstances justified such surveillance and for how long. It can thus not be said that the domestic law had set a strict standard for authorising the surveillance measure at issue (see, a contrario, Uzun, cited above, § 70).
75. Moreover, the said legal provisions equally remained silent on the procedures to be followed for storing, accessing, examining, using, communicating or destroying the data collected through secret measures of surveillance. It thus remained unclear where and how long the report containing the impugned footage and photographs of the applicant would remain stored, which persons would have access to it and whether she had any legal means of contesting the handling of the said report. The foregoing necessarily increased the risk of unauthorised access to, or disclosure of, the surveillance materials.
76. The Government further argued that the interference with the applicant’s right to privacy by way of secret surveillance was relatively small in the light of the public interests at stake, namely the prevention of insurance fraud and, ultimately, ensuring the proper management of public funds. In the Government’s view, this placed in context the need for clarity and precision of the legal basis of the surveillance in question. While the Court can agree that surveillance in the present case must be considered to interfere less with a person’s private life than, for instance, telephone tapping, it nonetheless has to adhere to general principles on adequate protection against arbitrary interference with Article 8 rights as summarised above (see § 68 above; see also Uzun, cited above, §§ 66 and 72).
77. For the above reasons – and notwithstanding the arguably minor interference with the applicant’s Article 8 rights – the Court does not consider that the domestic law indicated with sufficient clarity the scope and manner of exercise of the discretion conferred on insurance companies acting as public authorities in insurance disputes to conduct secret surveillance of insured persons. In particular, it did not, as required by the Court’s case-law, set out sufficient safeguards against abuse. The interference with the applicant’s rights under Article 8 was not, therefore, “in accordance with the law” and there has accordingly been a violation of Article 8 of the Convention.”

NO BREACH OF ARTICLE 6 RIGHTS

The Court then considered whether use of the evidence amounted to a breach of Article 6 rights.

2. “Merits
91. What remains to be established by the Court is whether the fact that the domestic courts relied on evidence obtained in breach of Article 8 also violated the applicant’s right to a fair trial as guaranteed under Article 6 § 1 of the Convention.
92. In this connection, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland, 12 July 1988, Series A no. 140, p. 29, §§ 45-46; and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I).
93. It is not, therefore, the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the unlawfulness in question and, where the violation of another Convention right is concerned, the nature of the violation found (see, inter alia, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000‑V; and P.G. and J.H. v. the United Kingdom, cited above, § 76).
94. As to the examination of the nature of the Convention violation found, the Court reiterates that the question whether the use as evidence of information obtained in violation of Article 8 rendered a trial as a whole unfair contrary to Article 6 has to be determined with regard to all the circumstances of the case, including respect for the applicant’s defence rights and the quality and importance of the evidence in question (compare, inter alia, Khan, cited above, §§ 35-40; P.G. and J.H. v. the United Kingdom, cited above, §§ 77-79; and Bykov v. Russia [GC], no. 4378/02, §§ 94-98, 10 March 2009, in which no violation of Article 6 was found).
95. In particular, it must be examined whether the applicant was given an opportunity to challenge the authenticity of the evidence and to oppose its use. In addition, the quality of the evidence must be taken into consideration, as must the circumstances in which it was obtained and whether these circumstances cast doubts on its reliability or accuracy. Finally, the Court will attach weight to whether the evidence in question was or was not decisive for the outcome of the proceedings (compare, in particular, Khan, cited above, §§ 35 and 37).
96. Turning to the present case, the Court must examine whether the use in administrative proceedings of evidence obtained in breach of the Convention was capable to rendering the applicant’s proceedings as a whole unfair.
97. The Court notes at the outset that Article 6 of the Convention is applicable to proceedings concerning social security disputes (see Schuler‑Zgraggen v. Switzerland, 24 June 1993, § 46, Series A no. 263).
98. As to the overall fairness of the proceedings in the instant case, the Court would observe that in her appeal to the Social Insurance Court of 6 May 2008 the applicant requested that the material resulting from her surveillance be removed from the case file because it constituted an “attack on her personality” (see § 32 above). As a consequence, the Social Insurance Court excluded the surveillance report from the evidence. On appeal, the Federal Court concluded that, under its own jurisprudence, the surveillance had not been unlawful, and so it took the surveillance report into evidence. It followed that the applicant had had the opportunity to challenge the impugned evidence and oppose its use in adversarial proceedings. Moreover, in their reasoned decision, the domestic courts gave ample consideration to the applicant’s request in this respect.
99. The Court further observes that the impugned recording, together with the expert opinion issued on the basis of the surveillance, was not the only evidence relied on by the Federal Court as the basis for its decision in the applicant’s case. As evident from the Federal Court’s reasoning, that court took into consideration other available evidence, in particular the existing contradictions between the medical reports drawn up prior to the surveillance (see § 35 above).
100. In view of the above, the Court finds that the use in the applicant’s proceedings of the secretly taped material did not conflict with the requirements of fairness guaranteed by Article 6 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
101. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
102. The applicant claimed 20,000 Swiss francs (CHF – approximately 18,500 euros (EUR)) in respect of non-pecuniary damage.
103. The Government considered this claim excessive and submitted that the amount of CHF 5,000 (approximately EUR 4,600) would cover any non-pecuniary damage suffered by the applicant.
104. The Court considers that the violation found must have caused the applicant certain distress and anguish. It thus awards the applicant EUR 8,000 in respect of non-pecuniary damage.
B. Costs and expenses
105. The applicant also claimed CHF 37,272 (approximately EUR 34,500) for costs and expenses incurred before the Court. This sum corresponds to 133 hours of legal work billable by her lawyer at an hourly rate of CHF 300.
106. The Government contested this claim and proposed CHF 4,000 (approximately EUR 3,700) as appropriate compensation for costs and expenses.
107. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 15,000 covering costs under all heads.
C. Default interest
108. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

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