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Old 16.03.2015, 16:10
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What are the laws concerning use of digital evidence for litigation in Switzerland?

Say someone lies to comit fraud or harasses others, does anything agsinst the law, can a digital evidence (email, audio/video, recorded tel conversations) be used as evidence inside a court? I know the laws about privacy are tough here, and probably require concent before recording, but since I am not sharing this to a 3rd party, and only for court material, can this evidence be taken into account if I sue someone?
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Old 17.03.2015, 15:06
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Re: What are the laws concerning use of digital evidence for litigation in Switzerlan

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I am not sharing this to a 3rd party, and only for court material
Doesn't make it legal. By bringing the material before court you may open yourself up for additional charges.

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Say someone lies to comit fraud or harasses others, does anything agsinst the law, can a digital evidence (email, audio/video, recorded tel conversations) be used as evidence inside a court?
Depends. The linked 5yr old verdict from Bern is actually about harrassment by phone of the wife by the husband she was living separated from.

It appears to be a matter of proportionality. Say you got a parking fine, you'll probably only call for additional charges against yourself by trying to use material in your favor you obtained illegally, e.g. dashcam records.

OTOH the more serious an accusation the higher the publics interest in reaching a correct verdict, which may override the defendants rightful interest of not using such illegally obtained evidence. For instance, Karl Dall was charged with rape recently. The prosecution used voice records illegally produced by the plaintiff as evidence (considered them admissible evidence). It seems the court admitted the records, but especially with that verdict (Karl Dall walked free) I'd expect charges against the plaintiff.

From another older verdict (hence possibly outdated) by the Berner Obergericht:
"Für ein Verwerten der Gespräche mit den Todesdrohungen sprach gemäss Obergericht auch die Abwägung der Interessen. Denn: Je schwerer eine Straftat wiege, um so eher überwiege das öffentliche Interesse an der Wahrheitsfindung das private Interesse eines Angeklagten, dass ein rechtswidrig erlangter Beweis unverwertet bleibt."
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Old 17.03.2015, 16:56
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Re: What are the laws concerning use of digital evidence for litigation in Switzerlan

It seems harsh not to be able to use evidence in cases like harassment, insult, fraud .. who in their right mind would commit any of these in knowledge of being recorded? Sometimes the laws here are insane. I have a tape/tel recording of events, with which the person responsible could face some serious asset seizure or even jail time, and I am bound to let it go, because this crazy law.

I think email evidence should be taken into account at least right? Knowing that, it is a hard evidence just like letters..
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Old 17.03.2015, 17:04
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Re: What are the laws concerning use of digital evidence for litigation in Switzerlan

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It seems harsh not to be able to use evidence in cases like harassment, insult, fraud .. who in their right mind would commit any of these in knowledge of being recorded?
Unless you want to entrap someone here is your solution: Simply state that the conversation gets recorded, and no harassment, insult, or fraud. Problem solved.
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Old 17.03.2015, 17:14
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Re: What are the laws concerning use of digital evidence for litigation in Switzerlan

I am not a lawyer, but from what I understand personal lawsuits are not very common here. If another person owes you money then you can simply file a betreibung with appropriate documentation to back up your claim. In that case, I think an email agreeing to payment can count as a contract, and can be used in that way.

If you're being harassed, and you think you have a law that backs up your claims, you can go to the police and see if they will press charges due to the person breaking the law, and the prosecutor can tell you how much if any of your "evidence" would be considered. If it's harassment at work, get the employer involved. If it's in your block of flats, get the landlord or regie involved. There are a multitude of ways to solve problems before they get to a lawsuit stage. I hope you're able to find one, as court costs here can be mind-numbing.
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Old 17.03.2015, 17:31
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Re: What are the laws concerning use of digital evidence for litigation in Switzerlan

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It seems harsh not to be able to use evidence in cases like harassment, insult, fraud .. who in their right mind would commit any of these in knowledge of being recorded? Sometimes the laws here are insane.
You will find the law to be the same in any civilized country.

Tom
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Old 17.03.2015, 17:59
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Re: What are the laws concerning use of digital evidence for litigation in Switzerlan

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It seems harsh not to be able to use evidence in cases like harassment, insult, fraud .. who in their right mind would commit any of these in knowledge of being recorded?
Watching Channel 5's "The Nightmare Neighbour Next Door" programme you'd be surprised.

But most of those cases that do end up in court are brought by the police or town/city council, not as personal lawsuits. Still, both written reports and recordings are used as evidence in such cases.
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Old 17.03.2015, 18:48
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Re: What are the laws concerning use of digital evidence for litigation in Switzerlan

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Watching Channel 5's "The Nightmare Neighbour Next Door" programme you'd be surprised.

But most of those cases that do end up in court are brought by the police or town/city council, not as personal lawsuits. Still, both written reports and recordings are used as evidence in such cases.
I wish this was true. I'll probably consult the police. I am breathing and living a nightmare. I have an email and phonecall evidence, probably thinking about buying a spycam to. This goes way beyond from harassment, to intimidation, keeping a spare key of my apartment and bedroom, going in and getting all curious while I am out. Opening & reading my private (house insurance) letters from my mail box, and making some lame excuses, lying about contract, utility payments to trick me into signing an agreement, stealing kitchen products ... its impossible to simply put into words, which is why I have been thinking of having any evidence, which I know for a fact that - in most countries is taken into account.

Anyway, thanks for the feedback
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Old 17.03.2015, 18:54
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Re: What are the laws concerning use of digital evidence for litigation in Switzerlan

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...keeping a spare key of my apartment and bedroom...
Are you a member of the Mieterverband or its equivalent in Romandie? AFAIK the landlord cannot keep a key to your apartment, much less enter it while you're gone, without your permission - unless for example you live in his/her actual house so it's kind of unavoidable.
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Old 17.03.2015, 19:17
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Re: What are the laws concerning use of digital evidence for litigation in Switzerlan

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Are you a member of the Mieterverband or its equivalent in Romandie? AFAIK the landlord cannot keep a key to your apartment, much less enter it while you're gone, without your permission - unless for example you live in his/her actual house so it's kind of unavoidable.
Nope, I am not a member of anything. I was almost OK with keeping a spare key for the appartment as she put it (in case of emergency) but for my room?? This woman beyond imagination.
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Old 17.03.2015, 19:23
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Re: What are the laws concerning use of digital evidence for litigation in Switzerlan

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probably thinking about buying a spycam to. This goes way beyond from harassment, to intimidation, keeping a spare key of my apartment and bedroom, going in and getting all curious while I am out. Opening & reading my private (house insurance) letters from my mail box, and making some lame excuses.

Anyway, thanks for the feedback
Here more feedback. You can film and record your own apartment and bedroom when you are there for you alone or away as much as you like. Such a recording would be fully admissible in court.

Anyone entering your home without your consent makes a criminal offense (misdemeanor):
http://www.admin.ch/ch/e/rs/311_0/a186.html

Anyone opening your mail without your consent makes an infraction/contraventions:
http://www.admin.ch/ch/e/rs/311_0/a179.html

I would push charges against anyone doing willingly one or the other at the very first account. No exception, no second chance.
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Old 17.03.2015, 19:36
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Re: What are the laws concerning use of digital evidence for litigation in Switzerlan

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Here more feedback. You can film and record your own apartment and bedroom when you are there for you alone or away as much as you like. Such a recording would be fully admissible in court.

Anyone entering your home without your consent makes a criminal offense (misdemeanor):
http://www.admin.ch/ch/e/rs/311_0/a186.html

Anyone opening your mail without your consent makes an infraction/contraventions:
http://www.admin.ch/ch/e/rs/311_0/a179.html

I would push charges against anyone doing willingly one or the other at the very first account. No exception, no second chance.
Thanks for the links, it brings back some hope to know I could at least count on these two offences. Are you a lawyer or law student? There is much more into this story, than I can mention here, and I would love to get some feedback if you have the time.

Let me know and thanks.
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Old 17.03.2015, 20:02
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Re: What are the laws concerning use of digital evidence for litigation in Switzerlan

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Anyone entering your home without your consent makes a criminal offense (misdemeanor):
http://www.admin.ch/ch/e/rs/311_0/a186.html
I'd check the fine print on your rental agreement before you lean too hard on this one though. You may find you have indeed given consent.

3Wishes mentioned the tenants' association or Mieterverband. The francophone-Swiss equivalent is Asloca. I second the advice to get in touch with them.
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Old 17.03.2015, 20:31
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Re: What are the laws concerning use of digital evidence for litigation in Switzerlan

I would say keep a detailed written dairy & if you have any photos or back up it may not be admissible if you sue but at least you have proof of your allegations. I have heard of someone else in your situation where the landlady walked in & poked around but yours sounds worse.
Good luck.
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Old 17.03.2015, 20:40
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Re: What are the laws concerning use of digital evidence for litigation in Switzerlan

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I'd check the fine print on your rental agreement before you lean too hard on this one though. You may find you have indeed given consent.
I am neither a lawyer nor a law student. But a cause which would grant a landlord/lady unconditional access to the property would be void.

http://www.admin.ch/opc/en/classifie...index.html#a19
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Old 18.03.2015, 00:16
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Re: What are the laws concerning use of digital evidence for litigation in Switzerlan

I think you have to be willing to either categorically set the limit (tell her that you are absolutely unimpressed with her behaviour and to desist immediately)....or change the locks. Have you actually told her /accused her of entering your apartment without your permission - people who lack any sort of personal boundaries (sounds like there are none), well...they lack personal boundaries...so she's not going to 'get the message' unless you give her the message...

Either way, the landlord is not actually 'entitled' to have a spare key, as far as I know, although I suspect mine does have one...I don't mind as he has never violated our privacy or the 'social graces' on any of our interactions...

Changing the locks costs money, but the next step is moving out...which is probably going to cost a lot more...

Maybe you could take a completely different tack and allege theft and make a police report, saying that you suspect a 'previous tenant' may have a key and that you demand the landlord arrange a locksmith and pay for the replacement locks... as they obviously did not 'secure' the keys properly from the previous tenant...unless they 'confess' to entering without your permission and admit their fault...
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Old 18.03.2015, 08:24
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Re: What are the laws concerning use of digital evidence for litigation in Switzerlan

There seem to be two things here:

1. Recording
2. Digital evidence

If someone sends you a poison letter - that would be admissible. So presumably a nasty email would also qualify. The only reason not is that any digital evidence is easier to forge-
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Old 18.03.2015, 11:46
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Re: What are the laws concerning use of digital evidence for litigation in Switzerlan

Chances are eMails can be used as evidence (though it may be tricky to prove the senders' identity).

There's no way the landlord's allowed to open your mail, full stop.

The landlord has no right to enter your apartment without your prior consent and, if you want, without somebody you denoted present, full stop, this applies even if your rental contract says that the landlord will keep a key or has a passe-partout.

Although you probably could, usually you don't sue but instead you report someone/incident to the police, that way it's on the police to do the hard work and dig up the evidence. If you have strong clues that he either entered your apartment or opened your mail or is harassing you the police should get going immediately. Though you may want to ask what would happen if you taped the phone, if you'd be likely to face charges yourself, before presenting them the recordings - chances are your right to security and safety override his right to privacy.
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Old 18.03.2015, 12:04
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Re: What are the laws concerning use of digital evidence for litigation in Switzerlan

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Chances are eMails can be used as evidence (though it may be tricky to prove the senders' identity).
....
Police can seize the suspect's computer and forensically determine it that way. Service provider records can also be used as mails travel from server to server unencrypted.
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Old 18.03.2015, 13:17
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Re: What are the laws concerning use of digital evidence for litigation in Switzerlan

OP essentially has three questions:
- can he use digital correspondence (e.g. email, voice messages, chat protocols) as evidence?
- can he use audio or video recordings as evidence?
- is he breaking the law by making audio/video recordings without consent.

On the first point: Yes. If the other side disputes the authenticity then things become a bit more difficult. But the same applies if someone disputes having written a letter...

On the second point: It depends.
- Switzerland operates on a full consent basis with regards to recordings. I.e. all the participants of a conversation must consent to it being recorded (other countries apply a single consent rule, i.e. at least one person, usually the one making the recording, must consent). If there is no consent, then this counts as an illegal recording (http://www.admin.ch/opc/en/classifie...x.html#a179ter). Rules are similar for video recordings (http://www.admin.ch/opc/en/classifie...tml#a179quater). So if you have consent then recordings are not a problem.
- If you do not have consent, the court may still admit the recordings as evidence if it deems there is an overriding interest (e.g. in case of death threats possibly yes, in case of a neighbour's dog pooping on your lawn possibily no).

Third point:
- the law itself is pretty clear. Without consent, its against the law. However, depending on the circumstances, you might be able to invoke a "legitimate act in a situation of necessity" (http://www.admin.ch/opc/en/classifie...index.html#a17). But you need to have special circumstances and and not simply because it is more convenient...
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