24 January 2019 – Strict standards apply for video surveillance by criminal prosecution authorities. In particular, any video surveillance by police officers on company premises needs to be ordered by the public prosecutor and needs to be authorised by the competent compulsory measures court in order to be valid as evidence. Our comparison with previous case law shows that less strict standards apply for private video surveillance by a company on its premises in case of suspicion of theft and that the information collected privately may be used as evidence in criminal proceedings if certain conditions are met.

In its judgment 6B_181/2018 of 20 December 2018, the Swiss Federal Supreme Court had to decide whether video recordings ordered and installed by the police on the premises of a company could be used as evidence. In the case at hand, the managing director of a company filed a criminal complaint against unknown persons due to suspicion of theft from the company’s safe. As a consequence, the cantonal police of the Canton of Solothurn installed cameras in the premises of the affected company. The camera surveilled an office with a kitchen where a safe was located during approximately five weeks. Customer areas were not monitored. The recordings were made with the consent of the managing directors, but without the knowledge of the recorded employees. The High Court of the Canton of Solothurn later sentenced an employee of the company to a fine for multiple thefts inter alia based on the video recordings (judgment STBER.2016.73 of 4 January 2018).

The Swiss Federal Supreme Court first considered the question of whether police video surveillance constitutes a coercive measure within the meaning of Art. 196 of the Swiss Code of Criminal Procedure (CCP). A procedural act by a criminal authority qualifies as a coercive measure if it interferes with fundamental constitutional rights in order to secure evidence (Art. 196 lit. a CCP). Contrary to the opinion of the High Court of the Canton of Solothurn, the Swiss Federal Supreme Court came to the conclusion that all state data processing activities, and therefore in particular video surveillance conducted by police officers, interfere with the basic right of the employees concerned to privacy and to informational self-determination pursuant to Art. 13 of the Swiss Constitution. Police video surveillance was therefore qualified as a coercive measure (consid. 4.2).

The Swiss Federal Supreme Court further pointed out that a distinction needs to be made between private evidence collection on the one hand and video surveillance ordered and conducted by public authorities on the other hand. The collection of evidence by private persons raises questions of criminal law, labour law, data protection and personal rights instead of questions of interference with fundamental rights (consid. 4.3; cf. our comments below).

Furthermore, the Swiss Federal Supreme Court clarified – again in contrast to the previous instance – that in the present case no valid consent was given to the encroachment on fundamental rights of the employees concerned. The managing directors of the company were not empowered to consent to the surveillance instead of the employee affected by the video surveillance and thus to dispose of his or her fundamental right to privacy and informational self-determination (consid. 4.4).

The Swiss Federal Supreme Court further pointed out that the coercive measure was conducted using technical monitoring equipment within the meaning of Art. 280 lit. b CCP, which had to be ordered by the public prosecutor (Art. 280 CPP) and authorised by the compulsory measures court according to Art. 281 para. 4 in conjunction with Art. 272 para. 1 CCP. Since video surveillance was ordered by the police in the case at hand without authorisation as provided for by law, the findings could not be used as evidence (cf. Art. 277 para. 2 CCP and consid. 4.5).

The Swiss Federal Supreme Court’s conclusion that the video surveillance conducted by the police could not be used as evidence did, however, not automatically lead to an acquittal of the employee concerned. Rather, the Swiss Federal Supreme Court referred the case back to the High Court of the Canton of Solothurn for reconsideration. The High Court of the Canton of Solothurn will now have to decide whether the other means of evidence, such as time recordings or interrogations carried out without using the video sequences, are sufficient to convict the employee (consid. 4.6).

Remarks: admissibility of private video surveillance on suspicion of theft

Of particular interest is the Swiss Federal Supreme Court's reference to the distinction between private evidence collection on the one hand and evidence collection by public authorities on the other hand (consid. 4.3, with reference to Supreme Court Decision 6B_536/2009 of 12 November 2009 and Supreme Court Decision 9C_785/2010 of 10 June 2011). These two decisions dealt with the question of the usability of video recordings made privately by the employer itself without the knowledge of the employees in the cash room of the respective company on suspicion of theft.

In contrast to the assessment of state or police surveillance, the question of whether video surveillance interferes with the fundamental rights of the monitored person was not the subject of these decisions. In the case of video surveillance by private persons, the legitimacy of such surveillance is rather examined under the applicable provisions ofcriminal law (Art. 179quater of the Swiss Criminal Code), labour law (Art. 26 of the Swiss Ordinance 3 to the Labour Code [ArGV 3]) and data protection law (in particular Art. 12 of the Swiss Data Protection Act [DPA] and the general data processing principles in Art. 4 DPA). In the decisions 6B_536/2009 of 12 November 2009 and 9C_785/2010 of 10 June 2011, the Swiss Federal Supreme Court came to the following conclusions regarding private video surveillance on company premises in case of suspicion of theft (cf. Supreme Court Decision 9C_785/2010 consid. 6.3):

• The Federal Act on the Interception of Postal and Telecommunications Traffic of 6 October 2000 ("BÜPF"; SR 780.1) does not apply to privately collected evidence.
  
  
• Video surveillance of an office where the safe/cash room is situated also did not constitute an offence under Art. 170quater Criminal Code (i.e. offences in breach of privacy or secrecy / breach of secrecy or privacy thorugh the use of an image-carrying device) in casu.
  
  
• Art. 26 para. 1 ArGV 3 (prohibition of surveillance of the behaviour of employees at the workplace) must be interpreted restrictively so that only surveillance systems which are likely to impair the health or well-being of employees are prohibited (Supreme Court Decision 6B_536/2009 consid. 3.6.1). Monitoring does not affect the health of workers eo ipso (Supreme Court Decision 6B_536/2009 consid. 3.6.2).
  
  
• Video surveillance of the cash room did not (at least in the cases to be assessed) monitor the behaviour of the employees at the workplace over a longer period of time – which would be inadmissible – but essentially recorded the cash room in which the employees stayed only sporadically and briefly. In the opinion of the Swiss Federal Supreme Court, such monitoring is not likely to impair the health and well-being of employees (Supreme Court Decision 6B_536/2009 E. 3.6.3). This holds true as long as no comprehensive and permanent monitoring takes place and the tapes are only subsequently evaluated (Supreme Court Decision 9C_785/2010 consid. 6.7.2, with reference to Supreme Court Decision 130 II 425 consid. 6.5).
  
  
• In the opinion of the Swiss Federal Supreme Court, such video surveillance of the cash room was also intended to prevent criminal offences by third parties, which is why the business owner had a considerable interest in the surveillance. Under the given circumstances, the personal rights of the employees were not unlawfully violated by the video camera according to the Swiss Federal Supreme Court (Supreme Court Decision 6B_536/2009 consid. 3.7).
  
  
• The private video recordings in casu did not violate Art. 26 ArGV 3 and were admitted as evidence in the proceedings in question (Supreme Court Decision 6B_536/2009 consid. 3.8).

Conclusion

In conclusion, it may be admissible for an employer to conduct video surveillance by itself in order to gather evidence in case of suspicion of theft on the company’s premises (instead of merely filing a criminal complaint against unknown persons). Video recordings conducted by public authorities have to meet high procedural standards and in particular need to be ordered by the public prosecutor and authorised by the competent courts in order to be admissible. In contrast, the employer may, depending on the circumstances, have a legitimate interest in conducting video surveillance by itself in case of suspicion of theft. However, such private video surveillance must be proportionate, must respect the privacy of the employees to the extent possible and may be neither comprehensive nor permanent. The evaluation of the video surveillance should not take place in real time, but only subsequently. The employer has to ensure that the behaviour of the employees is not monitored, but that merely the area where the company’s safe or cash room is situated is being monitored. Such a restrained and proportionate video surveillance may well be an adequate measure to gather evidence in case of suspicion of theft in a company. Before conducting any video surveillance, employers shall however clearly assess in advance if the legal requirements for such private recordings are met in order to avoid infringing any restrictions imposed by criminal law, data protection and labour law requirements.