Communicated on 24 September 2020
Published on 12 October 2020
THIRD SECTION
Application no. 71522/17
Jan KAZIMIR against Switzerland
and 2 other applications
(see list appended)
SUBJECT MATTER OF THE CASES
The applications concern monitoring by a private investigator in disability insurance proceedings without a legal basis, and the subsequent criminal and civil proceedings.
The applicant (born in 1954) suffered a car accident in 1991. He registered with the disability insurance office (Invalidenversicherung) in 1992 to receive disability benefits. In February 1998 he was awarded a half disability pension with retroactive effect from September 1996. In 1999, he claimed a deterioration in his state of health, which is why the disability insurance office awarded him a full disability pension, retroactively, from June 1999. His wife and children also received supplementary pensions.
The accident insurance company arranged for the applicant to be monitored. According to the information provided by the applicant, he was monitored in 2007 by private detectives over a period of 3-6 months. Records (photos and videos) were taken of the applicant in his family environment, in a private office and in public places.
Three sets of proceedings can be distinguished:
Application no. 71522/17 (pension revocation proceedings): By an interim measure decision of 28 February 2008, the disability insurance office suspended the pension payment retroactively to 19 February 2008, announcing that a pension review procedure would be carried out. Despite several reminders from the Appeal Court Zurich, the polydisciplinary expertise was not available until 17 November 2014. The expertise was based on the applicant’s medical records as well as on the observation reports of the private detectives. Subsequently, the disability insurance office (by decision of August 2015) revoked the disability pension retroactively as of 1 November 2003. The applicant’s appeal against this decision was dismissed by the Social Insurance Court of the canton of Zurich on 31 May 2016 and by the Federal Supreme Court (FSC) on 29 March 2017.
Application no. 47646/19 (criminal proceedings): In 2007, the accident insurance company brought a criminal charge against the applicant for insurance fraud. The first instance criminal court found the applicant guilty of multiple fraud and attempted fraud. He was sentenced to two years’ imprisonment, of which one year was suspended. His appeal was upheld by the Appeal Court of the canton of Zurich and he was acquitted in 2011. In response to the public prosecutor’s appeal, the FSC returned the case to the Appeal Court in the same year and requested that the criminal proceedings be suspended until the possible damages (the amount of any unlawfully-obtained pension benefits) had been clarified.
The criminal proceedings were resumed in May 2017. In October 2017 the Appeal Court found the applicant guilty of multiple fraud and attempted fraud and sentenced him to two years’ imprisonment, suspended on probation. The FSC dismissed the applicant’s subsequent appeal on 8 March 2019.
Application no. 61114/19 (reimbursement proceedings): By order of 28 April 2017, and as a result of the confirmation of the criminal conviction by the FSC on 8 March 2019, the disability insurance office ordered the applicant to pay back the disability pension benefits received, totalling 113 625 Swiss francs (CHF). The applicant appealed against this decision. By decision of 29 May 2019 the Social Insurance Court dismissed his appeal. The FSC confirmed this decision on 25 September 2019, stating that he had to reimburse the pension received from the disability insurance office.
Complaints: Before the Court, the applicant complains about a violation of Article 8 of the Convention as a result of the observation by private investigators. Furthermore, he alleges that Article 6 §§ 1 and 3 has been breached due to the fact that the domestic tribunals have taken into account, as means of evidence, the expert report of 17 November 2014. Finally, he claims that the pension revocation proceedings have been excessively long.
QUESTIONS TO THE PARTIES
1. Did the observation of the applicant by private investigators constitute an interference with the applicant’s right to respect for his private and family life within the meaning of Article 8 of the Convention (see, Vukota‑ Bojić v. Switzerland, no. 61838/10, §§ 46-47, 18 October 2016)? If so, was the interference in accordance with the law, did it pursue a legitimate aim and was it necessary in terms of Article 8 § 2? [This question concerns all three applications].
2. Did the applicant have fair civil proceedings within the meaning of Article 6 § 1 of the Convention? In particular, was it compatible with Article 6 § 1 of the Convention in the light of the applicant’s complaints to take account, as a means of evidence, of the expert report of 17 November 2014? [App. nos. 61114/19 and 71522/20].
3. Did the applicant have a fair criminal trial within the meaning of Article 6 §§ 1 and 3 of the Convention? In particular, was it compatible with Article 6 §§ 1 and 3 of the Convention in the light of the applicant’s complaints to take account, as a means of evidence, of the expert report of 17 November 2014? [App. no. 47646/19].
4. Was the length of proceedings in the present case, in particular the part of the procedure from 28 February 2008 to 17 November 2014, during which the disability insurance office carried out the pension review, in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention? [App. no. 71522/20].
APPENDIX
List of applications
71522/17Kazimir v. Switzerland47646/19Kazimir v. Switzerland61114/19Kazimir v. Switzerland
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