Secret surveillance by public authority without legal basis considered unlawful by the European Court of Human Rights

25. Oktober 2016 – On 18 October 2016, in the case of Vukota-Bojić v. Switzerland, the European Court of Human Rights (ECHR) ruled in favour of a woman who had been subjected to secret surveillance and videotaping from private investigators hired by her insurance company.

Mrs Vukota-Bojić suffered from various injuries after she was hit by a motorcycle in August 1995. Though her insurance company initially paid her daily allowances for incapacity, this decision was later contested by the insurance company. Because Mrs Vukota-Bojić refused to undergo further medical assessments, her insurance company undertook to put her under surveillance by private investigators.

Eventually, the Swiss Federal Supreme Court ruled in favour of the insurance company, considering that the legal basis for the surveillance was sufficient. Mrs Vukota-Bojić successfully took the case to the ECHR.

In its ruling (available here), the ECHR noted that the insurance company was a public authority because it was operating the Swiss public insurance scheme and was regarded by the domestic regime as a public authority. Mainly, the ECHR considered that the Swiss laws regulating the insurance company’s powers to hire private investigators were not sufficiently clear as to the scope and manner of exercise of the discretion conferred on insurance companies as public authorities. The ruling of the ECHR is precisely aimed at the practices in the Swiss public insurance sector. It highlights that the issue was really about the Federal Act on General Aspects of Social Security Law not being precise enough. The ruling does not apply to investigative activities of private insurance companies (and/or other private entities) which are not related to the operation of the Swiss public insurance sector. It however confirms the ECHR's very demanding position as regards surveillance by public authorities. As a consequence of the ECHR's ruling, several members of the Swiss Parliament have asked for legislative action to be taken. It is quite likely that a change in legislation will be prepared by the Swiss government and discussed in the Swiss Parliament in the near future.