Secret surveillance conducted by the Disability Insurance held unlawful by the Swiss Federal Supreme Court

The Swiss Federal Supreme Court ruled on 14 July 2017 (decision available in German here) that the secret surveillance of insured persons conducted by the Disability Insurance (DI) is unlawful. The court held that the provisions on which the DI based its surveillance actions lack the precision needed to legally justify the said surveillance. Therefore, the DI will no longer be allowed to conduct secret surveillances until the revised Federal Act on General Aspects of Social Security Law comes into force. However, due to an overriding public interest, the Swiss Federal Supreme Court held that information already collected could still be used as evidence in the case at hand.

As we already discussed (cf. news of 25 October 2016 available here), the European Court of Human Rights (ECHR), in a decision dated October 2016, ruled in favour of a woman who had been subjected to secret surveillance and videotaping from private investigators hired by her Swiss accident insurance company. The ECHR held that the Swiss laws regulating the insurance company’s capabilities, here the powers granted to an accident insurance to hire private investigators, were not sufficiently clear. In its latest decision, the Swiss Federal Supreme Court, whilst taking into account the ECHR decision from October 2016, concluded that from a legal standpoint the situation involving the DI was no different from the one involving an accident insurance. Therefore, the ECHR decision shall also apply to cases in which secret surveillance was conducted by the DI. As a result, the Federal Social Insurance Office instructed the DI offices to abstain from ordering any monitoring and to end ongoing secret surveillances.

To conduct secret surveillances in the future, the insurance companies governed by the Federal Act on General Aspects of Social Security Law have to wait for the entry into force of the revised version of this Act, it being specified that no date of entry into force is known at the time of writing and the parliamentary process is still ongoing. The draft version of the revised Act contains (for the time being, and subject to future amendments) a provision that will allow the insurance companies to conduct secret surveillances if there are specific indications that an insured person is not in fact entitled to the payments he or she receives or requests. Should the draft version of the revised Act enter into force as it presently stands and if this requirement is met, a secret surveillance with a maximum duration of twenty days may be conducted.