Facts

On 10 January 2019, the Police Court of the Republic and Canton of Geneva found the accused guilty of unauthorised recordings of conversations (Art. 179 ter para. 1 and 2 SCC) and sentenced him to a fine of 60 day-fines at 30 francs per day, suspended, with a probationary period of three years.

On 11 July 2017, an individual presented himself at the Police Station in C. after being expelled from a park by security guards. The police officer on duty contacted the security company F. to clarify the facts. Her interlocutor, D., the accused’s wife and director of the company, was unable to provide the requested information, so the officer sought the advice of Sergeant-Chef B. The latter suggested contacting the company directly. Shortly afterwards, the accused called [B.] on his direct line and, during the conversation, mentioned having filmed footage of the incident and agreed to hand it over to the police. Later that morning, the accused called [B.] again to inform him that he had reviewed the surveillance footage, confirming that no staff were present at the site when the officers arrived. He also stated his intention to file a complaint, claiming he had been slandered. The accused recorded these two telephone conversations without informing B.

The following day, the accused sent an email containing the recordings of the conversations to a lieutenant of the Navigation Police, as well as to three other people, including the site manager concerned. This email was accompanied by a report from the security guard and a summary prepared by the accused himself. Upon learning of this email from the lieutenant, [B.] filed a complaint.

On 28 June 2019, the Criminal Appeal and Revision Chamber of the Court of Justice of the Republic and Canton of Geneva dismissed the appeal lodged by the accused against the Police Court’s judgment. The accused then filed an appeal in criminal matters before the Federal Supreme Court, seeking the annulment of the contested judgment and referral of the case for a new decision. The appeal was dismissed by judgment of 7 February 2020.

Considerations

The Federal Supreme Court examined the concept of a non-public conversation within the meaning of Art. 179 ter SCC, thereby effecting a change in case law. Until then, case law had considered a conversation to be non-public only if it related to the private or secret domain of the participants, thereby excluding official conversations, in particular those conducted by officials in the exercise of their duties. This interpretation had been criticised by legal scholars, who deemed it too restrictive.

The Federal Supreme Court analysed the genesis of the law, its systematic structure and its objectives. It noted that the Federal Council’s Dispatch of 21 February 1968, concerning the adoption of Arts. 179 bis to 179 septies SCC, aimed to protect the secret personal domain, but that this protection was not to be limited to conversations of a private or secret nature. Indeed, the legal interest protected by Art. 179 ter SCC is the freedom to express oneself without fear of unauthorised recording, regardless of the status of the interlocutors or the context of the conversation.

The Federal Supreme Court also observed that subsequent case law had gradually broadened the concept of a non-public conversation, based on the criterion of the participants’ legitimate expectation that their…