Inadequate legal basis for secret surveillance – Swiss Federal Supreme Court decision 9C_806/2016 of 14 July 2017
The Swiss Federal Supreme Court has decided that secret surveillance is illegal in the area of the disability insurance due to the currently inadequate legal basis for such measures (decision 9C_806/2016 of 14 July 2017).
The decision is a change in the Federal Supreme Court's established practice, according to which an observation in the area of the disability insurance was generally permissible (based on Article 59 para. 5 Federal Act on Disability Insurance, see BGE 137 I 327, E. 5.2). The change in practice follows a decision rendered by the European Court of Human Rights in October 2016 which, in a similar case, found that the legal basis in the field of accident insurance is inadequate for an observation (ECHR judgment 61838/10). Secret surveillance in that area therefore amounts to a violation of the right to respect for an individual's private life protected by Article 8 of the European Convention of Human Rights.
The Supreme Court has now held that the sufficient legal basis is also lacking in the field of invalidity insurance. Hence, secret surveillance done or ordered by the disability insurance offices also constitute an infringement of Article 8 of the European Convention of Human Rights and Article 13 of the Federal Constitution, respectively, and are therefore illegal.
The decision of the Federal Supreme Court is, in light of the ECHR's practice, nothing more than consistent. The situation will only change once the pending revision of the Federal Act on the General Part of the Social Insurance Law ("GPSILA") has been concluded. The GPSILA is to be amended by an article (Article 43a), which specifies the prerequisites and general conditions of an observation as well as how the material obtained by an observation shall be handled (for the consultation, see: https://www.admin.ch/gov/de/start/dokumentation/medienmitteilungen.msg-id-65726.html; not available in English).
In the case at hand, the illegally obtained evidence was still admitted by the Court due to a weighing of interests. However, the Federal Social Insurance Office has already instructed all disability insurance offices to terminate ongoing and refrain from ordering new observations. As soon as the GPSILA revision is enacted, the practice of secret surveillance is to be resumed (see https://www.bsv.admin.ch/bsv/de/home/sozialversicherungen/iv/grundlagen-gesetze/versicherungsmissbrauch.html; not available in English).