The Cantonal Court of Schwyz rejects the admissibility of dash-cam video evidence in criminal proceedings against a motorist suspected of traffic violations

8 août 2017 – In autumn 2015, a car driver overtook two other cars from the right with apparently excessive speed. A dash-cam video recording obtained from a driving instructor who had filmed the incident led to the sentencing, by the lower-level (first instance) courts of the Canton of Schwyz, of the motorist for gross violations of traffic rules. However, upon appeal at the second instance, the Cantonal Court of Schwyz denied in a mid-July 2017 judgement the admissibility as evidence of videos recorded by dash-cams. It therefore acquitted the driver (judgement not yet published). This cantonal decision is subject to appeal before the Swiss Federal Supreme Court.

In Switzerland, the use of dash-cams is controversial and not, as of yet, specifically regulated by law. Although it is neither explicitly prohibited (unless it disturbs the driver) nor allowed, certain legal authors hold that the use of dash-cams contravenes the rules on data processing set out in the Federal Data Protection Act (FDPA). In addition, the Federal Data Protection and Information Commissioner (FDPIC) is of the view that dash-cams should not be used in public places. According to the FDPIC, the use of dash-cams breaches the principles of transparency and proportionality in data processing. Further, the FDPIC considers that the right to the protection of personal data outweighs the interests of collecting evidence in case of an accident[1].

However, the FDPIC’s guidelines are not legally binding. Hence, in a court case, the decision whether the dash-cam evidence should be admissible or not is up to the judges. Since the judgement has not yet been published, the exact weighing of interests by the Cantonal Court of Schwyz remains unclear. Moreover, an appeal by any of the parties involved to the Swiss Federal Supreme Court could allow the latter to decide the matter on a nation-wide level.

As things currently stand, given the absence of clear laws or federal court decisions, the admissibility of dash-cam records as evidence in criminal proceedings (and the admissibility of the use of dash-cams from a FDPA perspective in general) remains unclear. There are however strong arguments in favour of the admissibility of the use of dash-cams, in particular taking into consideration road safety and related interests.

[1] Guidelines on video surveillance in vehicles (Dashcams), dated July 2013