Usability of private dashcam recordings

A female driver was convicted of multiple, partly gross violation of traffic rules. She filed an appeal against this verdict, as the evidence of the offense came from a private dashcam. The Federal Supreme Court has ruled on the controversial question of whether and under what circumstances private dashcam recordings can be used in court.

ADMISSIBILITY OF ILLEGALLY OBTAINED EVIDENCE (ART. 141 PENAL CODE)

In principle, Evidence obtained unlawfully by private persons is inadmissible (Art. 141 para. 1 Criminal Procedure Code). The creation of recordings in public space in which persons and/or license plates are recognizable constitutes as the processing of personal data within the meaning of Art. 3 lit. a and e of the Data Protection Act (DPA). The acquisition of personal data is only permissible if the purpose of its acquisition and processing is recognizable for the person concerned (Art. 4 para. 4 FADP). Other road users are not necessarily aware that dashcam recordings being made and it is therefore a clandestine acquisition of personal data. According to Art. 4 para. 4 FADP, this is inadmissible and in conjunction with. Art. 12 para. 1 DSG, it constitutes a violation of privacy. For further information regarding personality violations, please contact a lawyer specializing in criminal law in St. Gallen, Zurich or Frauenfeld. The filming of other people or cars on public property is illegal, which is why the recordings of a dashcam are considered as obtained illegally and are basically unusable according to Art. 141 para. 1 CPC.

CASE LAW OF THE FEDERAL COURT ON THE USABILITY OF DASHCAM RECORDINGS

The Federal Supreme Court states that evidence which was obtained unlawfully by private persons is admissible if it could have been lawfully obtained by the prosecuting authorities and, cumulatively, a balancing of interests speaks in favor of its use. Article 141(2) of the CPC illustrates what this balancing of interests entails. According to Article 141, evidence which criminal authorities obtained in a criminal manner or in violation of the validity regulations cannot be used, unless its use is indispensable for the clarification of a serious criminal offense. This provision explicitly refers to evidence collected by the criminal authorities, but it also applies to private persons. From the point of view of the accused person it is irrelevant by whom the evidence with which he is confronted in criminal proceedings was collected. If it does not pertain to a serious criminal offense, the illegally obtained evidence is unusable anyways. No further balancing of interests is relevant.

Defintion of a “SERIOUS CRIME”

Gross traffic violations are misdemeanors punishable by imprisonment of up to three years or a fine (Art. 90 No. 2 Road Traffic Act). According to the Federal Supreme Court, a gross traffic violation does not constitute cases of serious crime. Serious crimes are not present in road traffic offenses. An attorney for criminal law in Zurich, Frauenfeld or St. Gallen can give you information on whether an infraction, misdemeanor or felony has been committed.

JUSTIFICATION UNDER ART. 13 FADP

It is doubtful whether Art. 13 (1) FADP offers grounds for justification for the use of evidence. A justification ground may exist in the case of a predominantly public or private interest. When it comes to the question of the usability of evidence in criminal proceedings, the state’s claim to punishment and the accused person’s claim to a fair trial are decisive. The interests of the private data processor are relegated to second place. Thus, there is no predominantly public or private interest, and accordingly, there is no justification. Further information on public or private interests can be provided by attorneys for criminal law in Frauenfeld, Zurich or St. Gallen.

Since evidence from dashcam recordings are illegal and do not serve to solve serious crimes, it is inadmissible.