Facts

Parties and procedural history: The complainant (A.) challenges a decision by the coercive measures court of the Canton of Solothurn granting the unsealing of items and records seized during a house search. The public prosecutor’s office of the Canton of Solothurn is investigating A. on suspicion of professional insurance fraud. A. had received various insurance benefits (AIA, IV, private capital insurance) following an accident in 2003. Between 2006 and 2013, the insurance company had A. surveilled by private detectives; the results were summarised in a private expert report and transmitted to the public prosecutor’s office, which used the surveillance results to justify the suspicion of the offence for coercive measures such as the house search and unsealing.

Facts of the case: In 2003, A. suffered a traumatic brain injury and a foot injury, resulting in a 100% disability for work. In 2015, the insurance company filed a criminal complaint and a private criminal action for insurance fraud after a private expert report reached different conclusions than the psychiatric expert report of 2010. In 2016, the public prosecutor’s office opened criminal proceedings and seized various items and records during a house search, the sealing of which A. requested. The detention court granted the unsealing, against which A. filed an appeal with the Federal Supreme Court.

Considerations

Lack of statutory basis for private surveillance: The Federal Supreme Court finds that systematic private surveillance by private detectives in criminal proceedings lacks a statutory basis. This violates Art. 8 ECHR and Art. 13(1) in conjunction with Art. 36(1) Cst., as there are no sufficiently clear and detailed statutory provisions governing the ordering, implementation, duration, storage and legal protection. The ECtHR confirmed this in the judgment Vukota-Bojic v. Switzerland, and the Federal Supreme Court has applied this jurisprudence in BGE 143 I 377 to social insurance law. These principles also apply in criminal procedure law, as private surveillance constitutes an interference with private life comparable to coercive measures and therefore requires a statutory basis.

No automatic exclusion of evidence: The illegality of the evidence gathering does not automatically lead to its inadmissibility in criminal proceedings. According to Art. 141(2) CrimPC, the use of illegally obtained evidence is exceptionally admissible if it is indispensable for clarifying serious criminal offences. The question of admissibility is generally reserved for the trial court in the final judgment, unless inadmissibility is obvious. In the unsealing procedure (Art. 248 CrimPC), a final review is only required if inadmissibility is clearly evident or statutory unsealing obstacles (e.g. Art. 197(1)(a) CrimPC) are affected.

No absolute inadmissibility: The results of private surveillance are not prohibited evidence within the meaning of Art. 140 CrimPC or Art. 141(1) second sentence CrimPC. The law does not provide…