v. SWITZERLAND DECISION
The applicant has dual Swiss/French nationality. She was born in 1953 and lives at Nyon (Switzerland). She is represented before the court by Mr Bitton, a lawyer practising in Geneva.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1979 the applicant was injured in a road accident when travelling as a passenger in a vehicle insured for third-party risks by the S. insurance company.
She sustained serious bodily injuries. S. paid her medical expenses until 1985 but refused to make any further payments.
After negotiations had broken down, the applicant brought an action for damages against the insurance company on 20 October 1989 in the Zürich Commercial Court.
In the course of those proceedings she learnt that had been under surveillance by private detectives on several occasions. It appears from the file that was produced to the Court that in 1982 the insurance company began to have doubts about the true extent of the applicant’s injuries and instructed two private detectives to verify her physical condition. The detectives monitored the applicant’s movements and followed her by car. They also kept a record of any visits she received. They filmed the applicant on various occasions, notably when she attended an appointment at the insurance company’s offices and at a picnic that had been organised in the car park of the company for which her partner worked. In the course of their surveillance operations the detectives produced reports, photographs and a video recording.
On 13 November 1990 the applicant made an “application for protection of her personality rights” to the Geneva Court of First Instance on the basis of Articles 28 et seq. of the Civil Code. She sought an injunction restraining the insurers from keeping her under surveillance, an order for the destruction of the photographs and video and a declaration that the reports, photographs and video constituted an unlawful interference with her personality rights.
On 25 January 1993 she lodged a criminal complaint against the private detectives and representatives of the insurance company, notably for interference with her privacy. The criminal proceedings were stayed pending the outcome of the civil proceedings before the Zürich Commercial Court, which on 22 March 2001 made an order for damages against the insurance company. According to the applicant, that judgment has become final and irreversible as neither party has appealed against it.
On 31 May 1996 the Geneva Court of First Instance dismissed the applicant’s application for protection of her personality rights. On 23 May 1997 the Civil Division of the Court of Justice of the Canton of Geneva upheld that decision.
In a judgment of 18 December 1997 the Swiss Federal Court dismissed the applicant’s application to have that judgment set aside. It began by observing that by virtue of Article 28 subparagraph 2 of the Civil Code an interference was unlawful unless justified by the victim’s consent, an overriding private or public interest, or statute. When, as in the case before it, the insurance company had pleaded an overriding interest, the trial court had to decide whether, in the light of all the circumstances, sufficient grounds existed to make the interference legitimate. It further pointed out that it was for the trial court, in its discretion, to weigh up the competing interests. It proceeded to dismiss the applicant’s application on the following grounds:
“(b) Before making an insurance payment, an insurer providing third-party cover has a duty to verify whether the insured has incurred civil liability for the damage caused to the third party and whether the victim’s claim for reparation is justified. It must also defend the insured against unjustified claims by third parties. Further, the insurer acts in the interests of all its insured collectively (see, on this subject, Roland Brehm, The Contract of Third-Party Insurance, Lausanne 1983, nos. 381 et seq.). When discharging its duties, the insurer is therefore entitled to conduct private investigations and assemble evidence. For their part, victims claiming compensation must cooperate in establishing the facts and accept that the insurer may conduct investigations, even without their knowledge, when that is necessary to achieve the aim pursued. Thus, assembling evidence with a view to establishing the existence and extent of the insurer’s obligations towards the victim may constitute a valid reason for interfering with personality rights (see Michael Nonn, ‘Die Beweiswürdigung im Zivilprozess’, thesis, Basle/Frankfurt 1996, p. 155).
(c) In the present case, the cantonal court accepted, and its finding is binding on the Federal Court (Article 63 subparagraph 2 of the Federal Judicature Act), that the investigations, which were conducted from a public place and were confined to ascertaining the appellant’s mobility, that being ‘an essential element in the Zürich proceedings for which the information thereby obtained was intended’, were aimed solely at protecting the insurer’s pecuniary rights and preserving the evidence necessary for its defence in the proceedings. On the basis of those facts, the Court of Justice must be regarded as having acted within the limits of its discretionary powers when it found that the respondent had an overriding interest that made the interference lawful.
The impugned judgment shows that the insurer had doubts about the true extent of the injuries sustained by the appellant in the accident. In the light of the above principles and of the amount claimed (2,600,000 Swiss francs), the insurer was entitled to conduct an investigation. Furthermore, the means employed (surveillance, photographs and video recording) were appropriate for the aim pursued. Admittedly, any impairment of a person’s physical condition can be established by medical evidence and indeed the appellant underwent a medical examination. However, a medical examination constitutes first and foremost a theoretical medical assessment, while the effects of damage to physical integrity may also be assessed by reference to the sufferer’s actual daily and working life. In the circumstances, the surveillance carried out by the respondent – which amounted to four investigations each lasting a few days and staggered over a period of ten years – and the pictures taken of the appellant as part of those investigations do not appear to be disproportionate either. In any event, the cantonal court clearly was acting within the bounds of its discretion when it found that the interference was justified.
(3) In conclusion, to the extent that it is admissible, the application must be dismissed and the impugned judgment upheld.”
B. Relevant domestic law
1. Civil law: action for the protection of personality rights
Article 28 of the Swiss Civil Code lays down the principle of protection of personality rights. It reads as follows:
“Anyone who suffers an unlawful interference with their personality rights may apply to the courts for protection against any person who has participated therein.
An interference will be unlawful unless it is justified by the consent of the victim, an overriding private or public interest or statute.”
Article 28(a) sets out the remedies available to anyone who claims to have sustained damage as a result of a violation of their personality rights:
“The applicant may request the court to:
(1) prohibit an unlawful interference, if imminent;
(2) order that any continuing unlawful interference shall cease;
(3) make a declaration that an interference is unlawful if the harm which it has caused continues to subsist.”
2. Criminal law
The applicant lodged a criminal complaint for, inter alia, “an interference with [her] private life” against the private detectives and the representatives of the insurance company. Article 179 quater of the Swiss Criminal Code makes it an offence to use a camera to encroach upon a person’s personal or private life:
“It shall be an offence punishable by imprisonment or a fine following a complaint to use a camera to observe, or image-recording equipment to record, any matter pertaining to a person’s personal life or, if it would not be in public view but for the camera or equipment, to his or her private life, without the consent of the person concerned.”
Relying on Article 8 of the Convention, the applicant argued that the fact that she had been kept under surveillance by the detectives employed by the insurance company, S., constituted an unjustified interference with the exercise of her right to respect for her private life.
She added that, while aware that those responsible for the violations of Article 8 were private persons, she relied on the case-law in which the Court had held that respect for private life was a wide concept (X and Y v. the Netherlands, 26 March 1985, Series A no. 91) as authority for the proposition that in ratifying the Convention a State also undertook to guarantee compliance by its citizens. That, in her submission, meant that she was entitled to complain to the Court of a violation of Article 8 even in respect of surveillance carried out by private persons, but “approved” by State authorities.
The applicant alleged that her surveillance by detectives employed by S. had infringed Article 8 of the Convention, which provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. (X and Y v. the Netherlands, 26 March 1985, Series A no. 91; Stubbings and Others v. the United Kingdom, 22 October 1996, Reports of Judgments and Decisions 1996 IV, 18).
In the instant case the Court notes that, contrary to the situation in the X and Y. case, effective protection was afforded in this sphere by the Swiss legislature. Both civil and criminal remedies – supported by penalties for breach – were available to anyone who considered that their personality rights had been infringed.
The applicant made use of the civil remedy that was available to her, but her action was dismissed.
The Court notes that the domestic courts carried out a thorough analysis of the competing interests of the insurer and the applicant. They had regard in particular to the fact that the insurer was under an obligation to verify whether the victim’s claim for compensation was justified, as it was also acting in the interests of all the insured collectively. On that basis, they considered that the insurer was entitled to conduct private investigations and that the victim was under a duty to cooperate in establishing the facts and to accept that the insurer might conduct investigations, even without the insured’s knowledge, when that was necessary to achieve the aim pursued. They found that in the instant case the insurer’s investigations, which were conducted from a public place and were confined to ascertaining the appellant’s mobility, had been aimed solely at protecting the insurer’s pecuniary rights. The domestic courts had thus found that the insurer had an overriding interest that made the interference with the applicant’s personality rights lawful.
In the light of the foregoing, the Court considers that Switzerland has complied with its positive obligation inherent in the notion of effective respect for family life, at both the legislative and judicial levels.
In the circumstances, the Court finds that there is no appearance of a violation of Article 8 of the Convention.
It follows that the application is manifestly ill-founded and must be dismissed, in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court unanimously,
Declares the application inadmissible.