Remainder inadmissible (Article 35-3 - Manifestly ill-founded);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1954 and lives in Opfikon.

The applicant had been employed as a hairdresser since 1993 and she had compulsory accident insurance under the Federal Law on Accident Insurance (see Relevant domestic law below). On 28 August 1995 she was hit by a motorcycle while crossing the road and fell on her back. She was hospitalised overnight owing to suspected concussion resulting from the impact of her head against the ground.

On 2 October 1995 the applicant was examined by a rheumatologist who diagnosed her with a cervical trauma and possible cranial trauma. On 6 December 1995 her family doctor certified that her injuries had resulted in total incapacity for work until the end of the year.

On 29 January 1996 the applicant was examined at the Zurich University Hospital. The doctor who examined her predicted that she could make a gradual return to work. Nevertheless, on 12 June 1996 another doctor in the same hospital declared the applicant totally incapable of work.

At the request of her insurance company, the applicant’s health was assessed by means of orthopaedic, neurological, neuropsychological and psychiatric examinations by the insurance-disability medical examination centre (COMAI) of St. Gallen. On the basis of the assessment carried out by that centre, the applicant was declared fully capable of work with effect from February 1997.

By a decision of 23 January 1997 the insurance company informed the applicant that her entitlement to daily allowances would end on 1 April 1997.

On 4 February 1997 the applicant submitted an objection to that decision and enclosed a report of a neurologist, who confirmed an almost permanent headache, limited head movement, pain radiation towards the shoulders and arms with sensory disorders as well as sleep disorders. In addition, the specialist suspected that the applicant had suffered whiplash and that she was affected by a neuropsychological dysfunction.

In September 1997 the insurance company rejected the applicant’s complaint finding no causal link between the accident and her health problems.

The applicant appealed to the Social Insurance Court of the Canton of Zurich (Sozialversicherungsgericht des Kantons Zürich).

In a decision of 24 August 2000, the Social Insurance Court allowed the applicant’s appeal. It overturned the insurance company’s decision and remitted the case for further clarifications. Taking into account the partial contradictions that existed between the different medical reports, the court considered that the consequences of the accident for the applicant’s state of health were not sufficiently established. Moreover, a doubt remained as to whether the applicant had suffered trauma to her neck and spine. The insurance company was thus required to clarify the issue.

The insurance company subsequently ordered a multidisciplinary examination, which was conducted by an institute of medical experts in Basel. In their report the experts concluded that the applicant was totally incapacitated in respect of the duties required in her profession. However, the insurance company challenged this report once it found that a doctor who had participated in its preparation had previously carried out a private examination of the applicant in the initial stages of the proceedings.

The insurance company therefore ordered another medical report, which was delivered on 11 November 2002. The report observed the existence of a causal link between the accident and the damage to the applicant’s health, and was accompanied by a neuropsychological report, which noted a brain dysfunction subsequent to a head injury.

Meanwhile, by a decision of 21 March 2002 the competent social security authority (Sozialversicherungsanstalt) of the Canton of Zurich granted the applicant a full disability pension with retroactive effect.

Subsequently, the applicant asked the insurance company on several occasions to comment on its obligation to grant her insurance benefits.

On 5 October 2003 another expert report commissioned by the insurance company was prepared solely on the basis of the previous examinations. The medical expert confirmed the existence of a causal link between the accident and the applicant’s health problems, and concluded that the applicant’s illness had led to a total incapacity for work.

On 14 January 2005 the insurance company issued a decision confirming the termination of the applicant’s benefits as of 1 April 1997. The applicant lodged a complaint against that decision.

On 11 June 2005, another independent physician concluded, solely on the basis of the previously drafted medical reports, that these medical findings were not sufficiently explicit as regards causality. According to him, the applicant’s incapacity for work amounted to not more than 20%. He also strongly criticised the approach and findings of other medical experts. On the basis of this report, on 22 September 2005 the insurance company dismissed the applicant’s complaint on the grounds of lack of a causal link between the accident and her medical conditions.

The applicant appealed, arguing that most of the medical reports had found a causal link and that the only report denying the existence of such a link was based solely on medical reports by other experts instead of on a direct examination.

On 28 December 2005 the Social Insurance Court recognised the existence of a causal link between the accident and the health problems the applicant complained of, and allowed her appeal. The matter was referred to the insurance company for it to decide on the right of the applicant to insurance benefits.

Thereafter, the insurance company invited the applicant to undergo a medical evaluation of her functional abilities, which she refused. The applicant was then issued with a formal notice within the meaning of Article 43 (3) of the Social Security Act inviting her to undergo the said evaluation and warning her about the legal consequences of failing to do so indicated in the said provision (see § 38 below). No mention of the possibility of covert monitoring was mentioned.

Thereafter, on 3, 10, 16 and 26 October 2006 the applicant was monitored by private investigators, commissioned by the insurance company. The surveillance was performed on four different dates over a period of twenty-three days and lasted several hours each time. The undercover investigators followed the applicant over long distances. Following the surveillance, a detailed monitoring record was prepared. Pursuant to that report, the applicant appears to have become aware of the secret surveillance on the last day of implementation of the measure.

In a decision dated 17 November 2006 the insurance company refused the applicant’s representative access to the surveillance report. The applicant then lodged a complaint with the supervisory authority, namely the Federal Office of Public Health, objecting to the failure to take a decision on her benefits entitlement.

On 14 December 2006 the insurance company sent the private investigators’ report to the applicant. The report included the surveillance footage and declared that it considered it necessary to conduct a fresh neurological assessment of the applicant. However, the applicant refused to undergo any further examination and asked for a decision on her benefits to be taken.

In a decision of 2 March 2007 the insurance company again refused to grant any benefits to the applicant on the basis of the images recorded during the surveillance and her refusal to undergo a neurological examination.

The applicant lodged a complaint against that decision, claiming a pension on the basis of a degree of disability of 100% as well as compensation for damage to her physical integrity. She also asked for the surveillance case file to be destroyed.

On 12 April 2007 another neurologist appointed by the insurance company, Dr H., released an anonymous expert opinion based on evidence and drafted taking into account all the medical examinations and assessments carried out previously as well as the surveillance images. He found that the applicant’s incapacity to work amounted to 10%. Furthermore, he estimated the damage to the applicant’s physical integrity at between 5% and 10%. On the basis of the analysis of the surveillance images he concluded that the restriction on her capacity to lead a normal life was minimal.

On 14 March 2008 the Federal Office of Public Health gave the insurance company a deadline to decide the applicant’s complaint. By a decision of 10 April 2008, the insurance company rejected the applicant’s request for destruction of the images and decided to grant her daily allowances and a pension on the basis of a disability degree of 10%.

On 6 May 2008 the applicant lodged an appeal with the Social Insurance Court claiming compensation for damage to her physical integrity as well as a disability pension based on 70% disability. In addition, she claimed interest at 5% on arrears on the daily allowances remaining unpaid since the accident. She also asked for the expert opinion on the evidence taking into consideration the material resulting from the surveillance be to be removed from her case file. The applicant complained that the surveillance had been “reprehensible and inappropriate” and had constituted an “attack on her personality”.

On 29 May 2009 the Social Insurance Court found in favour of the applicant. In particular, it ruled that owing to the lack of legal basis for the surveillance the monitoring record was not admissible as evidence. As a result, it denied any probative value of the expert opinion based on the evidence, which had taken into account the illegal surveillance. Moreover, according to the court’s previous decision of 28 December 2005, the applicant was not required to undergo any further examinations. Therefore, she was entitled to refuse a medical assessment of her functional abilities.

The insurance company lodged an appeal against this decision before the Federal Court, criticising in particular the amount of benefits to be granted to the applicant.

In its judgment of 29 March 2010, of which the applicant was notified on 19 April 2010, the Federal Court ruled that, in accordance with its earlier jurisprudence (see below § 43), the surveillance of the applicant by private investigators had been lawful and the surveillance file was therefore a valid piece of evidence. After evaluating the surveillance file it found that the medical reports contradicted the images and videos showing the applicant walking her dog, driving a car long distances, going shopping, carrying groceries and opening the boot of the car by moving her arms above her head without noticeable restrictions or unusual behaviour. Moreover, it found that there were discrepancies, not only between the results of the surveillance and the medical reports but also between the medical reports which had been drafted before the surveillance. Finally, the examination of the applicant by a neurologist was necessary and admissible because she had previously refused to undergo an assessment of her functional capacities and a neurological examination, which were required in the circumstances. Accordingly, the Federal Court denied the probative value not only of the medical reports attesting to the applicant’s complete incapacity to work but also of the reports attesting to her incapacity to work of a lesser degree. Therefore, the insurance company had acted correctly in ordering a reassessment of her ability to work through a critical review of all previous medical reports. Following an analysis of this expert opinion report based on evidence, the Federal Court held that its findings were convincing. It quashed the decision of the Social Insurance Court, except for the considerations relating to the interest on arrears.

Subsequently the applicant lodged a request with the Federal Court for interpretation of its decision in the light of the established caselaw concerning the probative value of the medical reports. The Federal Court dismissed her request, concluding that she had submitted her application not for the purposes defined in this legal remedy, but rather to argue a violation of Articles 6 and 8 of the Convention.