Dashcam recordings are inadmissible as evidence unless the matter in hand is a serious crime. Based on this reasoning, the Federal Supreme Court overturned the conviction of a driver for multiple traffic violations. AXA-ARAG legal expert Cyril Senn gives his view on this controversial verdict.
"The driver is insured with AXA-ARAG. We have borne the litigation cost risk of around CHF 20,000 and were able to help our customer assert her rights."
"Absolutely. Evidence unlawfully obtained by private individuals can only be used if it could have been lawfully obtained by the criminal authorities. With this ruling, the Federal Supreme Court follows the decision of the Cantonal Court of Schwyz of June 20, 2017 and thus prevents road users from reporting each other."
"The judges of the Federal Supreme Court argued as follows: Since the offenses – classified in previous instances as simple and gross violations of traffic rules – are not classed as serious crimes but as minor violations or misdemeanors, the dashcam recordings cannot be accepted as evidence.
In this case, the dashcam recording was unlawful: According to the Data Protection Act, it would be deemed a case of secret data processing."
"The verdict of the Federal Supreme Court helps prevent even more road users from acting as vigilantes and amateur detectives."
"In the balancing of interests, there is a conflict between the public interest in finding the truth and the private interest of the accused person not to be punished.
The fact is: According to the Code of Criminal Procedure (StPO), evidence obtained unlawfully by the criminal authorities may only be used if it is indispensable for the investigation of a serious criminal offense such as murder. Whether the use of dashcam videos in a serious crime would actually be admissible remains open – since this question did not have to be answered by the Federal Supreme Court."
"If other people cannot see that a dashcam is filming, it is deemed to be secret data processing – which is a violation of privacy. For other motorists, it is not easy to see that they are being filmed by a dashcam since they are focusing their attention on the traffic."
"The privacy violation cannot be justified by a private interest of the dashcam owner. The purpose of criminal proceedings is to allow the state to assert its right to hand down penalties and to allow the accused to assert their right to a fair trial. Thus the interests of the data processor or dashcam owner take a back seat."
"According to the Code of Criminal Procedure (StPO), the use of private evidence is only admissible if, first, the authorities themselves could have also provided such evidence and, second, a serious crime has been committed that justifies the use of the evidence."
In the first instance, in 2018, the district court of Bülach sentenced a 47-year-old driver to a conditional penalty and a fine of CHF 4,000 for dangerous overtaking evidenced by a dashcam video.
The driver was filmed by a dashcam as she first overtook on the right on the highway near Bülach (Canton Zurich) before pushing back into her original lane, forcing the driver with the dashcam to brake.
This recording served as evidence for the verdict by the District Court of Bülach, which was later confirmed by the Zurich Higher Court. The driver took action against this decision – on the grounds that the dashcam recording was unlawfully obtained evidence and thus violated the Federal Act on Data Protection and privacy rights.
The Federal Supreme Court in Lausanne has now ruled in favor of the driver and overturned the guilty verdict.