– March 25, 2024

Usability of privately collected but publicly accessible evidence in criminal proceedings

In principle, evidence gathered by private individuals cannot be used in criminal proceedings, as the gathering of evidence is a matter for the criminal prosecution authorities. However, if privately collected evidence is also publicly accessible, for example via social media, it is generally lawful.

Criminal investigations were opened against B. and A. because a video published by A. was found on a social network that showed a speedometer during an acceleration drive up to a speed of 198 km/h.

At issue in this case (6B_68/2023 of October 9, 2023 – linked) was the admissibility of the video published by A. as evidence.

Evidence is generally considered to have been obtained unlawfully if it was collected by private individuals. If evidence has been obtained unlawfully, the judge must examine whether it may nevertheless be used. The latter is the case if, among other things, the evidence could have been lawfully obtained by the criminal authorities.

Secret recording by private individuals is generally not lawful. The lower court considered that it was clear to B. that A. had filmed him while he was speeding. Consequently, the recording was not made secretly. However, the video was published on social media without B.’s knowledge, which is why it had to be assumed that it was unlawfully obtained evidence.

Unlawfully obtained evidence can nevertheless be used in application of Art. 141 para. 2 of the Code of Criminal Procedure if the evidence could have been obtained by the criminal authorities themselves and it is “indispensable for the investigation of serious criminal offenses”.

The lower court denied this on the grounds that a follow-up measurement would not have been possible here due to the rapid but short-lived acceleration. The existence of a serious criminal offense was also denied, as the speeding had taken place on a straight, clear route and outside of residential areas. The road conditions were dry and the speeding, which contributed to the offense of speeding, was only of very short duration. The lower court therefore acquitted A. and B. of the charges.

The Federal Supreme Court disagreed with the lower court on this point and held that the qualified gross violation of traffic regulations under Art. 90 para. 3 and 4 SVG was indeed a serious offense within the meaning of Art. 141 para. 2 StPO. Good road conditions would not change the seriousness of the offense.

In addition, a police patrol that happened to be present would have been able and permitted to record the speeding offense, as it had taken place in a public space. Accordingly, it would also have been possible and permitted to measure the speeding.

Consequently, the Federal Supreme Court concluded that the video could be used against B. With regard to A., this question would not even arise, as he recorded the video himself and ultimately published it on his profile.

If you have any questions about criminal law, our lawyers will be happy to advise you.