Facts
The Federal Supreme Court dealt with the question of whether evidence obtained unlawfully by private individuals may be used in criminal proceedings against the complainant. The complainant was found guilty by the Cantonal Court of St. Gallen of fraud and attempted fraud against the Old Age and Survivors' Insurance of the Canton of St. Gallen (SVA). The conviction was based, among other things, on an observation report prepared by a private detective. The complainant argued that the private observation was carried out without a legal basis and therefore violated his fundamental rights to respect for private and family life and the protection of privacy. The Federal Supreme Court held that systematic private observations in criminal proceedings indeed have no legal basis and are therefore unlawful. However, it does not automatically follow that the unlawfully obtained evidence would be inadmissible in criminal proceedings. According to the case law of the Federal Supreme Court, evidence unlawfully obtained by private individuals is only admissible if the prosecuting authorities could have lawfully obtained it and if the balancing of interests also speaks in favor of its use. In the present case, the Federal Supreme Court concluded that the prosecuting authorities could have carried out the observation based on the available indications of insurance fraud and could have lawfully obtained the evidence. Furthermore, the significant public interest in preventing social insurance fraud outweighed the private interest of the complainant in not using the observation report.Considerations
The…