Introduction

In case of doubt regarding eligibility for benefits, insurers in Switzerland (particularly accident and disability insurers) have a long record of hiring investigators to conduct surveillance in order to prevent abuse and to adjust or reclaim benefits if the doubt proves founded.

This update looks at Vukota-Bojic v Switzerland (October 18 2016), in which the European Court of Human Rights concluded that Switzerland violated Article 8 of the European Human Rights Convention due to surveillance of an insured party. The case brings uncertainty regarding the extent of observation under Swiss law. Article 8 guarantees the fundamental right to respect private and family life. In its statement, the court held that Swiss federal law offers no precise legal basis for photo and video surveillance of insured parties.

Decision

On August 28 1995 the applicant, Ms Vukota, a Swiss citizen, was hit by a motorcycle while crossing the street and consequently hit the back of her head. The applicant had compulsory accident insurance under the Federal Law on Accident Insurance. In her first medical examination, the doctor certified total incapacity for work. Initially, based on the examination, the applicant was entitled to daily allowances. However, as of January 31 1997, the insurer gradually reduced the benefits with the aim to cease them altogether due to lack of causal nexus between the accident and Vukota's health problems. In 2005 the Social Security Court overturned the insurer's decision and remitted the case back to the insurer for further clarification and a decision on insurance benefits. Two years later, the insurer decided that the applicant had only a 10% incapacity for work. Its decision was based on neurological medical reports with special reference to a surveillance report which was produced by a private investigator commissioned by the insurer. The surveillance report showed that the applicant could walk her dog, drive long distances in her car and carry shopping bags without any problems. The insurer justified its actions and detailed monitoring files with the fact that the applicant refused to undergo further examination or take part in an appraisal concerning her functional capacity. The Federal Supreme Court supported the insurer's actions, including the reduction of benefits. According to the court, the monitoring by private investigators offered enough proof to show that the applicant was not totally incapable of work and that the findings contradicted initial medical examinations. Further, the court argued that the observation took place on public grounds. It held that in view of this contradiction it was necessary for the insurer to follow up and obtain surveillance and that the court complied with all pertinent requirements for the surveillance of an insured person. The court based its decision on Articles 10 and 13 of the Federal Constitution, which state that the fundemental right to privacy can be limited only if there are sufficient legal grounds, if there is public interest and if the limitation is proportional, which means that limitation will go no further than the purpose that the measure justifies. It is understood that surveillance of insured parties is an interference in privacy, meaning that sufficient legal grounds are required. There is public interest to protect the insurance community from the abuse of insurance recipients. Proportionality is given if there is concrete doubt of abuse. In addition, surveillance should go no further than what is temporally, locally and personally necessary.

European Court of Human Rights

However, the European Court of Human Rights overruled the Federal Supreme Court decision and held that the systematic supervision measure (which included photo and video surveillance) ordered by the insurer breached the right of privacy according to Article 8 of the European Convention on Human Rights. In addition, the European Court of Human Rights reminded the parties that every intervention concerning Article 8 requires a precise legal basis. After an extensive analysis of the pertinent legal basis, the European Court of Human Rights concluded that this was non-existent under Swiss law.

In its decision, the court stated that Article 43 of the Federal Law on the General Part of the Social Security in connection with Article 96 of the Federal Law on Accident INsurance gives insurers the sole legal authority to deal with particularly sensitive data and personality profiles. This does not include the authorisation to conduct photo and video observation on insured parties. The European Court of Human Rights acknowledged the protective measures set by the Federal Supreme Court, but found them insufficient. There are no provisions that regulate either the maximum time of the surveillance (including data retention and the use and destruction of data) or judicial review. Consequently, it provides too much leeway for insurers and no legal basis for the prevention of abuse.

Comment

The European Court of Human Rights concluded that there is no adequate basis for insurers to continue observation; therefore, Swiss insurer observation practices are no longer permitted. The court further stated that other methods to prevent abuse are available (eg, medical examinations or witness questioning).

This case provides an opportunity to discuss a potential revision. It will have wide-ranging consequences for Swiss law. With a view to sufficient legal basis, the Swiss legislature will be forced to reconsider the new Article 44a of the Federal Law on the General Part of the Social Security, which would have regulated observation in detail. This case also questions observation with regard to Article 59(5) of the Federal Disability Act.

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For further information on this topic please contactMarkus Dörig or Alexandra Böschat BADERTSCHER Rechtsanwälte AG by telephone (+41 44 266 20 66) or email (boesch@b-legal.ch or doerig@b-legal.ch). The BADERTSCHER Rechtsanwälte AG website can be accessed at www.b-legal.ch.