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How far can social welfare detectives go when they carry out surveillance? The amended law leaves considerable margin for interpretation for supporters and opponents alike.

(© Keystone/Ennio Leanza)

Voters have the final say on November 25 on amended legislation which would enable private detectives working for social insurance agencies to carry out surveillance of people suspected of abusing the Swiss system.

This measure is necessary to discourage fraud, parliament and government have decided. Opponents consider it a menace to the rule of law. They have challenged the reform to a nationwide referendum.

Mr. A. had an accident at work. He suffers backaches as a result, and he has qualified for disability benefits paid by the Accident Compensation Fundexternal link. Officials nevertheless suspect that A. is pretending to be more incapacitated than he really is. His medical status is not really clear, and during interviews with officials he was evasive in his answers. For this reason the officials call in Mr. B., a private investigator, to watch A. and find out if his health condition is really what he claims it is.[i]

Fraud in figures

Between 2009 and 2016, the country’s disability insurance fund carried out 16,000 investigations of suspected abuse of the system.

In 1,700 of the cases, there was covert surveillance and in 800 of them the suspicions were found to be justified. In the same period, the accident compensation fund carried out 3,300 investigations of suspicious cases and carried out surveillance of 11 people.

In 2017, the disability insurance fund investigated 2,130 cases, out of a total of 217,000 insured people. In 210 cases surveillance was carried out, in 170 of these suspicions were confirmed.

The total savings on disability payments amount to about CHF178 million ($178 million) - according to the agency’s estimates -, and of that amount, about CHF60 million can be attributed to surveillance.

Source: Federal Office for Social Insurance 

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According to the bill to amend Swiss legislation on social insurance, subject to the referendum vote on November 25, B. can watch A. if he is on the street, in a bar, in a park or any other place accessible to the public.

He can also watch him if he is in a place freely visible from a public place, say if he is on a balcony or in a garden that is not hidden from view by some barrier.

The private investigator will also be entitled to take photos and record voices, as long as he does not use any instrument to increase the power of his vision or hearing artificially, such as a telephoto lens, a night-vision device or a directional microphone.

If he wants to track the location of the suspect, he will need a court order to use technology such as a GPS device.

In recent years, the Accident Compensation and Disability Insurance agenciesexternal link have been carrying out surveillance systematically to counter fraud.

European Court of Human Rights

In October 2016, however, the European Court of Human Rightsexternal link found that the accident compensation fund did not have an adequate legal basis to spy on clients. 

The agency immediately ended all surveillance as a result. Later, after an opinion handed down by the Swiss Supreme Court, the disability insurance agency too suspended all surveillance activities.

The collapse of the surveillance option prompted the government and parliament to intervene.

A reform of the social insurance legislation, proposed by the government, was already before parliament. Considering it urgent to provide a legal basis for surveillance activities, a parliamentary majority decided to deal with the sections about surveillance as a matter of priority.

In March 2018 both houses of parliament approved the amended legislation with comfortable majorities.

Covert surveillance

The amended legislationexternal link, besides specifying the ways and means and situations in which covert surveillance can take place, specifies that it may be authorised by a representative of the insurance agency with management responsibilities where there are real indications that fraud may be going on, and where another means of investigation would not be adequate.

Surveillance may be carried out for no more than 30 days in a six-month period. The period of surveillance can be extended for no more than a further six months.

At the end of the surveillance, the insurer must inform the person subjected to surveillance why, how and for how long they were being watched. Where surveillance has failed to support the suspicion of fraud, the insurer must destroy all materials gathered, unless the insured person requests them to be preserved.

These new rules affect not only accident compensation and disability insurance, but all social insurance programmes subject to the legislation, which includes old age pensions, unemployment insurance and compulsory health insurance.

So, potentially, it could affect just about every resident of Switzerland. Excluded from it are social welfare benefits, which come under the jurisdiction of cantons and municipalities, and employer-based pension funds.

Controversy

Whereas no-one questions the need to curb fraud in social insurance programmes, politicians on the left have severely criticised the bill in parliament, saying it is disproportionate and threatens the basic rights and privacy of clients.

The law, too hastily approved, they say, would serve the interests of the social insurance agencies alone and would put all insured persons under a cloud of suspicion.

Opponents particularly object to the provision in this bill that would allow the agencies to carry out surveillance without having to get a court order to do it.

They also think that the bill would give these agencies powers that even the police do not have.

The code of criminal procedure allows police to carry out surveillance in a public place without a court order, but, unlike the new bill, it does not allow for surveillance of a person in a place which is visible from a public place.

Privacy

According to the Federal Office of Social Insuranceexternal link, however, decisions of the supreme court actually do allow the police to do this, although the code does not specify it. The fact remains that the bill gives private detectives the right to use methods similar to those used by police forces.

Referring to case law again, the federal office denies that "freely visible places" mentioned in the bill would include places inside a dwelling, as opponents have claimed.

Living rooms, bedrooms and stairways would be covered by privacy rules and could not be subjected to surveillance by detectives hired by social insurance agencies.

The office has also given an assurance that the bill will not allow detectives to use technical devices augmenting normal human vision or hearing so as to take photos or record audio or video.

So no drones, night-vision goggles, infrared cameras, telescopes or bugs.

Even if these are not explicitly excluded by the bill, it is to be assumed from the legal system generally, by analogy with the criminal procedure code, and declarations by the Swiss government during the legislative process.

Some supporters of a referendum, especially those of liberal views, criticise the poor wording of the legislation and expect that arguments about the controversial issues would soon wind up before the courts.

[i] Fictitious scenario.

Referendum

A citizen movement, including the author Sibylle Berg, political campaigner Dimitri Rougy and internet security expert Hernani Marquez, have challenged the law to a nationwide vote.

The group collected the necessary 50,000 signatures in 100 days notably using the social media - a first in the history of Switzerland's direct democracy.

Leftwing parties initially came out against a legal reform in parliament. They refused to support the referendum group for tactical reasons. Later on, they changed their policy.

The law is also opposed by the youth chapters of the centrist and centre-rights parties.

They argue the law was hastily drawn up and leaves too much margin for interpretation.

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Adapted from Italian by Terence MacNamee/urs, swissinfo.ch


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