Severe Setback for Detectives and Insurers Following European Court of Human Rights Ruling

ECHR Considers Use of Detectives in Switzerland Unlawful in Individual Case

The European Court of Human Rights (ECHR), based in Strasbourg, issued a ruling this week that could have negative consequences for insurers and private investigators in Switzerland alike: In the case of a disability pensioner who had been observed by private detectives over several days on behalf of her insurance company during her daily activities, the court ruled that “Switzerland does not have sufficient legal grounds for the surveillance of insured persons.” The woman, now 62, had been classified as unable to work in 1995 following an accident; her accident insurance sought to reassess her health after several years to ensure no fraud was involved. The woman, however, refused to undergo a medical examination – which understandably raised suspicions with the insurer.

 

The accident insurance therefore decided to hire private detectives to observe her in her daily life. In the photographs taken by the Swiss detectives over four days of surveillance, the pensioner was seen walking long distances, driving considerable distances by car, and lifting shopping bags above her head – actions that had previously been diagnosed as impossible in an earlier medical report. In a first lawsuit before the Swiss Federal Court, the insurers were granted the right to reduce the benefits by 10 per cent after a doctor assessed the woman as only 10 per cent disabled based on the surveillance findings.

 

Since the surveillance took place in public, it could – according to the court – be considered lawful under social insurance law. The new ECHR ruling, however, states that Switzerland does not have adequate legal provisions to justify such an intrusion into privacy; the duration of the observation and the handling of evidence are not sufficiently clarified by law. Our Zurich detective agency also doubts that, in this individual case, the suspicion was strong enough to establish a legitimate interest in the investigation. Unfortunately, this single disputed case could have far-reaching implications:

Work of Swiss Private Detectives at Risk – Carte Blanche for Fraudsters?

It is therefore all the more important for our Zurich detective agency that the Swiss Parliament enacts binding legislation to provide a legal basis for future surveillance commissioned by accident or disability insurers. It cannot be a solution to simply approve all applications for disability benefits without scrutiny, especially when there is suspicion of insurance fraud. The work of our economic investigators in Switzerland, and likewise that of reputable colleagues, is invaluable in uncovering social fraudsters who, at the expense of all contributors, may have been unlawfully receiving insurance benefits for years without any entitlement. Due to vague wording in the current disability insurance regulations, which justify the “use of experts” but do not make it clear to laypersons whether detectives can be employed to observe insured persons, it may currently be impossible in individual cases and depending on the canton to commission a detective.

 

Complicating matters further is the fact that the Swiss Federal Court in Lausanne has already classified surveillance as legal on three occasions, assuming that observations are sufficiently protected by case law even if not explicitly by legislation. Moreover, the 62-year-old pensioner has not yet derived any direct benefit from her victory at the ECHR, as she is still considered only 10 per cent disabled in Switzerland. To obtain the full insurance sum, she must now return to the Swiss courts and undergo further health checks, which she had previously refused. What the ECHR deemed illegal was the fact that the legislation does not explicitly refer to surveillance, meaning insured persons are unaware that they can be monitored in cases of suspicion and must tolerate it. The use of detectives was thus declared unlawful solely because of a legal gap – at the European level, mind you. Our economic detective agency in Zurich is now naturally hoping for a swift adoption of relevant amendments to insurance laws to ensure that the deployment of detectives for insurers in all cases with concrete suspicion is legally justified. Otherwise, fraudsters might be further encouraged to claim insurance money illegally, believing they no longer need to fear investigative scrutiny – a potentially disastrous signal.

Approximately 10 per cent of all insurance cases in Switzerland involve fraudulent activity

The deployment of private detectives in Switzerland is not a sign of fundamental distrust of insured persons and should never be extended to blanket surveillance of all beneficiaries. Rather, such detective assignments involve spot checks of individual suspicious claimants, among whom experience over recent years shows there are always fraudsters whose actions impose additional costs on the public and can therefore be described as antisocial. The consequence of insurance fraud is that unlawfully obtained money is redistributed in the form of increased premiums to those who are legitimately entitled to treatment. Surveillance by detectives in individual cases is therefore crucial not only for insurers but also for insured persons, in order to avoid unnecessarily high premiums. According to the Swiss Insurance Association (SIA), around 10 per cent of reported insurance cases are fraudulent; the resulting damage runs into billions and significantly harms Switzerland’s economic strength. Preventing these fraudsters is in the interest of every citizen who earns a living honestly.

 

The fact that in recent years more and more fraud cases have been uncovered through detailed and careful individual examinations now takes on a bitter note following the Strasbourg ruling. This positive trend, which was also supported by Swiss detective agencies, may now be abruptly halted. As a first step, the accident insurance Suva has announced that it will initially cease using detectives, while some municipalities continue to use them in social welfare cases and cannot do without them. For example, according to the assessment of the local social department, the canton of Zurich is not affected by the Strasbourg ruling, as a legal basis exists here. In Suva, detective deployments have previously been rare: out of over 570 cases of suspicion per year, detectives were employed only 10 to 15 times. Roger Bolt, the official responsible for combating abuse, states: “We have other means of detecting abuse […]. But detectives are used as a last resort and are therefore not easily replaceable” (Source: Neue Zürcher Zeitung).

Suspicion? Detectives Provide Free Advice

If your authority, law firm, or immediate private circle has doubts about a social welfare case, our social detectives in Switzerland are still legally permitted to observe suspects in order to verify whether a welfare case actually exists. If you, as an insurer, have a well-founded suspicion of insurance fraud, contact our detective agency in Zurich to clarify the legal issues – we will gladly advise you on the latest developments and options. You can reach us by email at kontakt@kurtz-detektei-schweiz.ch or by telephone on +41 44 5522 264.

Author: Maya Grünschloss, PhD

 

Kurtz Investigations Zürich and Switzerland

Max-Högger-Strasse 6

8048 Zürich

Tel.: +41 (0)44 5522 264

E-Mail: kontakt@kurtz-detektei-schweiz.ch

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