ECHR judgment of 18 October 2016 in the case of Vukota-Bojic v. Switzerland (application No. 61838/10).
In 2010, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to Switzerland.
In the case, a complaint was successfully considered for secret surveillance of the daily activities of the applicant, organized by the insurance company in the resolution of the dispute on the insured event. In the case there was a violation of the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant was injured in a traffic accident. The incident caused a number of disputes with its insurance company and a lengthy investigation into its ability to work, the existence of a causal link between the estimated incidence of its incapacity for work and the incident and the payment of the compensation amount due to it. The applicant underwent several medical examinations, and after her refusal to undergo additional medical examination, the insurance company, using the powers granted to her under the scheme of state insurance, decided to put her under surveillance. Private detectives, attracted by the insurance company, monitored her movements on four different dates during the 23-day period. The insurance company intended to use detailed records of the observation in the trial to challenge the incapacity for work the applicant insisted on and the accuracy of the medical reports she referred to. The applicant complained that the secret surveillance of her daily activities, organized by her insurance company, violated her rights in accordance with Article 8 of the Convention. In particular, she complained about the lack of clarity and predictability of the provisions of domestic law, which served as a legal basis for monitoring her.
ISSUES OF LAW
Concerning compliance with Article 8 of the Convention. The appealed measure of supervision was applied by a private insurance company. However, the state gave this company the right to pay benefits on compulsory health insurance and collect insurance premiums. The state can not be released from liability on the basis of the Convention by delegating its responsibilities to private organizations or citizens. Given that the insurance company managed the scheme of state insurance and that it was considered within the legal system of Switzerland as a public authority, the company should be considered as a public authority, and the actions committed by it should be charged to the respondent State.
With regard to the question of whether there was an interference with the applicant's right to respect for her private life, the Court noted that professionals acting on behalf of her insurance company systematically and deliberately watched her and filmed her on video on four different dates within 23 day period. The received materials were stored and selected, and the captured images were used as a basis for the expert opinion and, ultimately, for the reassessment of the payment of its insurance benefits. The Court is convinced that the permanent nature of the videotape and its subsequent use in the insurance dispute could be considered as processing or collecting personal data of the applicant, indicating the interference in her personal life.
The question before the Court was whether the provisions of domestic law that served as the legal basis for the order to monitor the applicant were sufficiently clear and detailed to consider that the interference was "prescribed by law". In this regard, the Court observes that while it does not appear that the relevant provisions of Swiss law directly provide or imply the receipt of images or video recordings in the number of investigative measures that may be carried out by insurance companies, the Federal Court of Switzerland concluded that these provisions cover surveillance in circumstances , similar to the circumstances of the applicant's case. In considering whether the respondent State's legislation contained adequate and effective safeguards against arbitrariness, the Court noted that it did not provide for procedures to be followed when authorizing or supervising the implementation of measures for secret surveillance in the specific context of insurance disputes. In addition, the relevant provisions of the law did not establish procedures for the storage, access, review, use, communication or destruction of data collected through secret surveillance measures. Thus, it remained unclear where and how the report containing video recordings and photographs on which the applicant is sealed, who will have access to it, and whether the applicant has legal means to challenge the manipulation of the report will be kept. The European Court recognized that monitoring in the present case should be viewed as a lesser interference in a person's private life compared to, for example, wiretapping, but it must obey the general principles of adequate protection against arbitrary interference with the rights provided for in Article 8 of the Convention.
For these reasons, and despite the fact that the interference with the applicant's rights under Article 8 of the Convention was in principle insignificant, the Court does not consider that the Swiss legislation demonstrated sufficient clarity as to the limits and the manner in which the discretion exercised is exercised insurance companies acting as public authorities in insurance disputes, for conducting secret surveillance of insured persons. In particular, it did not contain sufficient guarantees against arbitrariness. Thus, interference with the applicant's rights under article 8 of the Convention was not provided for by law.
The case involved a violation of the requirements of Article 8 of the Convention (adopted by six votes "for" with one - "against").
The Court also held that the use of secret material in the proceedings with the applicant's participation did not violate the requirements of fairness guaranteed by Article 6 § 1 of the Convention.
In the application of Article 41 of the Convention. The Court awarded the applicant EUR 8,000 in respect of non-pecuniary damage.
See also De La Flor Cabrera v. Spain, judgment of 27 May 2014, application no. 10764/09, and the Uzun judgment in the Uzun case (Uzun v. Germany) of 2 September 2010, application No. 35623/05.