Admissibility and Usability of Surveillance Ordered in the Disability Insurance Procedure

Facts

- The applicant, born in 1972, had been receiving a half IV pension (degree of disability of 53%) since February 2008. - Between November 9 and 22, 2010, the IV office had the applicant surveilled by a private detective. Based on the results of this surveillance, the IV office suspended the benefits and retroactively eliminated the entitlement to the pension as of February 1, 2008. - The cantonal court annulled this decision and referred the case back to the IV office for further investigation. The IV office then eliminated the entitlement to the pension at the end of the month following the notification of the decision, and again granted retroactive benefits from May 2011 until the termination of the pension at the end of October 2015. - The applicant appealed to the Federal Tribunal, contesting the use of the surveillance results in the IV procedure.

Considerations

1. The surveillance ordered by the IV office lacked a sufficient legal basis and thus violated Art. 8 ECHR and Art. 13 Cst. Indeed, the case law of the Federal Tribunal (ATF 135 I 169) and the Accident Insurance Act (Art. 28 and 43 AIA, Art. 96 GSSLA) do not provide a detailed and precise regulation of the conditions and modalities of surveillance, particularly with regard to the duration, the authorization procedure, the storage and use of the recordings.…