(Duty to provide information in accordance with Art.19 of the Federal Act of 25 September 2020 on Data Protection [FADP, SR 235.1])
The following information relates to data processing by the FAC in legal proceedings (Article 191a(2) Cst. [SR 101] in conjunction with Art. 31 et seq. FACA [SR 173.32]) and in matters of general court administration (Art. 27(1) FACA). The purpose of this document is to inform you, in accordance with Article 19 FADP, about:
- how we handle your personal data and for what purpose your personal data are processed;
- on what bases your personal data are processed;
- your rights vis à vis the FAC under data protection law;
- how to assert your rights and who to contact for enquiries about data protection.
You may consult the authoritative legislation by entering the relevant SR number online
at https://www.admin.ch/gov/de/start/ bundesrecht/systematische-sammlung.html
1. Who is responsible for data processing and who can I contact?
a) Controller (Art. 5(j) FADP)
The Controller, within the meaning of the Data Protection Act, is the FAC as the responsible federal body and the owner of all the data bases managed at the Court, represented by its Administrative CommissionFederal Administrative Court Administrative Commission Kreuzackerstrasse 12 9000 St. Gallen email: firstname.lastname@example.org
b) Your contact point at the FAC for enquiries about data protection (Article 10(2) FADP)
In accordance with Art.10(1) FADP and Art 23 of the Data Protection Ordinance of 31 August 2022 (DPO, SR 235.11), the FAC has appointed an officer as your contact point for enquiries relating to data protection.Federal Administrative Court Data Protection, Information Protection and Transparency Officer DPIPTO Postfach 9023 St. Gallen email contact: email@example.com
Please note that the FAC Data Protection Officer is only responsible for: enquiries relating to data protection law, requests for access within the meaning of the Federal Act of 17 December 2004 on Freedom of Information in the Administration (FoIA, SR 152.3), and for requests for access to archived procedural records., He or she may not give any information about ongoing court proceedings or provide general legal advice.
c) The FDPIC
For general data protection enquiries, you may also contact the Federal Data Protection and Information Commissioner (FDPIC; Art. 58(1)(a), (c) and (d) FADP).Federal Data Protection and Information Commissioner (FDPIC) Feldeggweg 1 3005 Bern
For further information and contact options, see the FDPIC website.
2. Infrastructure and IT security
The FAC holds both physical and electronic databases. As a rule, all court-held data are processed via IT-supported infrastructure. This is generally protected by a multi-factor authentication system and is centrally managed by the Federal Office of Information Technology, Systems and Telecommunications (FOITT; service provider) and maintained by our in-house IT specialists. Moreover, individual IT services may be sourced from external providers subject to the appropriate security requirements and based on the appropriate agreements (see Art. 9 FADP).
In its data processing and the operation of its IT infrastructure, the FAC is guided by data protection principles and information security objectives. The FAC also takes due account of the national security strategy of the Confederation and the security specifications of the National Cyber Security Centre (NSCS)
IT security, and notably the guidelines for the basic protection of all ICT resources and applications, are within the remit of the FOITT; depending on the sensitivity of the information concerned, higher levels of protection are implemented. The FAC’s IT security officer is responsible for the internal oversight of IT security.
3. How the FAC processes personal data
Personal data (hereafter also: data) means any information relating to an identified or identifiable natural person (Art. 5(a) FADP). Apart from information pertaining to an identified person, this includes factual data which, individually or as a whole, can serve to identify a specific person. Processing means any handling of personal data irrespective of the means and procedures used, in particular the collection, storage, keeping, use, modification, disclosure, archiving, deletion or destruction of data (Art. 5(d) FADP);
As part of its judicial activities, the FAC mainly processes the personal data of parties to proceedings, authorised representatives, persons providing information, witnesses and expert witnesses. In the framework of the submissions of these parties, the personal data of uninvolved third parties may also be processed. Insofar as the FADP does not apply to judicial proceedings (see Art. 2(3) FADP), the processing of personal data is regulated by the applicable procedural law. Information about FAC judicial proceedings (principle of judicial transparency) follows a constitutional principle (Art. 30(3) Cst.). As a rule, judgments are published in anonymised form (Art. 29(2) FACA); exceptions are made only to the extent required for a better understanding of individual judgments (see PAUL TSCHÜMPERLIN on the parallel provision of the Federal Supreme Court in: Basler Kommentar, BGG, 3rd ed. 2018, Art. 27 N. 16).
In the performance of its general administrative tasks, the FAC processes the personal data of employees and job applicants as part of its personnel management activities. Personal data is also processed for general administration purposes (processing internal administrative matters or enquiries from the public; both by letter and via contact form). As a rule, this data is processed on a statutory basis (Art. 34(1) FADP) and sometimes based on the consent of the data subjects (Art. 34(4)(b) FADP).
In the extensive remit of the FAC and depending of the subject matter concerned, data processing may also involve the processing of sensitive personal data, within the meaning of Art. 5(c) FADP, requiring special care (e.g. health data). In processing your personal data we are always guided by the principle of lawfulness and the data protection legislation of the Confederation in particular.
4. Where do we source your personal data?
The personal data processed by the FAC in the scope of its judicial activities does not necessarily always originate from the parties to the proceedings; in the context of administrative assistance or the taking of evidence, for example, personal data may also be collected from other entities and persons, such as other parties to the proceedings, parties to preliminary proceedings, witnesses, expert witnesses and knowledgeable third parties. As a general rule, in its proceedings, the FAC establishes the facts of a case ex officio and obtains the necessary evidence (Art. 12 APA). Here again the principle of lawfulness applies.
Hearings of the FAC are recorded in writing; in certain cases, with the consent of the parties to the proceedings, audio recordings may be made for transcription purposes. Both the recording of a written account and the making of an audio recording qualify as processing of personal data. In principle, audio recordings of a hearing, if any, are destroyed once they are transcribed.
Outside the scope of our judicial activities, personal data are transmitted to us for general personnel management purposes and as part of postal or electronic enquiries (e.g. general enquiries, online contact form, newsletter subscriptions).
The personal data processed in the course of the recruitment process are collected exclusively from the relevant applicants. Information from third parties about themselves (letters of reference) is only collected in consultation with the party concerned and with their consent (Art. 34(4)(b) FADP). Job application files are processed based on the applicable federal personnel law, notably the Federal Personnel Act of 24 March 2000 (FPA, SR 172.220.1) and the corresponding Ordinance of 22 November 2017 on the Protection of Personal Data of Federal Personnel (FPO, SR 18.104.22.168; see Art. 8 et seq.).
5. For what purposes and on what legal bases do we process your data?
The Federal Administrative Court is entrusted with a multitude of highly diverse legal proceedings which require all kinds of information to be processed. The statutory basis for the processing of personal data in judicial proceedings is derived from the relevant provisions of procedural law in accordance with Art. 2(3) FADP. The Federal Act of 20 December 1968 on Administrative Procedure (Administrative Procedure Act, APA, SR 172.021) is central in this regard (also see Art. 37 FACA).
After proceedings are closed, the procedural data are usually processed to satisfy other statutory duties, for example, to comply with statutory retention requirements under the relevant archiving rules, namely the Federal Act of 26 June 1998 on Archiving (Archiving Act, ArchA, SR 152.1) and the Ordinance of 8 September 1999 to the Federal Archiving Act (Archiving Ordinance, SR 152.11). For the FAC, the regulations of 9 December 2010 on archiving at the Federal Administrative Court (FAC archiving regulations, SR 152.13) also apply. The retention period for case files is at least 50 years (cf. Art. 11(1) ArchA, Art. 14(1) Archiving Ordinance, Art. 6(2) FAC archiving regulations).
In the ambit of the administrative duties of the Court, the processing of personal data is primarily based on the statutory administrative autonomy of the FAC (Art. 27 FACA)
With regard to the recruitment or hiring procedure, your personal data are processed for customary administrative purposes. The main statutory bases in this regard are the FPA and the FPO, the applicability of which derives from Art. 1(2) of the Ordinance of 26 September 2003 on the Employment Contracts of the Staff of the Federal Criminal Court, the Federal Administrative Court and the Federal Patent Court (SR 172.220.117).
As a rule, personal data are only processed for a purpose other than the stated purpose if a statutory basis permits such processing or if we hold a consent.
6. Do we disclose your personal data, and to whom?
The FAC only discloses your personal data if there is a statutory basis for doing so, if such processing is essential to fulfil our statutory duties, or if you have explicitly consented to their disclosure (cf. Art. 36 FADP). Based on Art. 9 FADP, the processing of personal data may be assigned by contract or by law to a processor in compliance with statutory requirements.
Within the FAC, only court personnel have access to your personal data; such access is granted on a need-to-know basis depending on the employee’s judicial activity and the administrative tasks to be performed as part of their administrative duties. Moreover, FAC employees are bound by professional, business and official secrecy (Art. 22(1) FPA).
By way of example, your personal data may be disclosed to:
- parties to proceedings in which your personal data were collected to the extent such disclosure is necessary for the conduct of the proceedings (see Art. 26 APA, inspection of files). Data collected for the purpose of granting free legal representation will not be disclosed to other parties to the proceedings unless they are entitled to information on income and assets under special legal rules;
- persons to be called upon in proceedings under the relevant rules of procedure, for example expert witnesses (Art. 12(e) APA) or interpreters and translators (see Art. 33a(4) APA);
- authorities in the performance of our or their statutory duties (administrative assistance);
- external service providers and suppliers: insofar as the FAC outsources services (notably IT) from external providers, the latter are granted access to data to the extent required for the due provision of services (support services). Such access to data is based on a corresponding agreement (Art. 9(1) FADP). Moreover, external service providers and suppliers are either subject to professional, business and official secrecy pursuant to Art. 22(1) FPA, or they must be bound by appropriate confidentaility clauses (non-disclosure agreements NDAs).
- Electronic exchange of legal correspondence: when electronic submissions are verified (Art. 21a APA), an external validation software of the Confederation (known as a validator) is used to validate the qualified electronic signatures. The legal processing basis is the Ordinance of 18 June 2010 on Electronic Service in Administrative Proceedings and the FAC implementation regulations of 16 June 2020 on electronic exchange of legal correspondence with parties (ERV-BVGer, SR 173.320.6).
- If an appeal is filed against a judgment of the FAC, we forward the relevant preliminary files to the competent appeal body (see e.g. Art. 86(1)(a) in conjunction with Art. 102(2) of the Federal Act of 17 June 2005 on the Federal Supreme Court [SR 173.110]).
- If the FAC finds that it does not have jurisdiction to hear a case, it refers the matter without delay to the competent authority; in doubt, there may be an exchange of views (Art. 8 APA). If a party to proceedings before another authority refers to files of FAC proceedings and the authority requests the files, the FAC may remit the files to that authority within the scope of administrative or legal assistance (see e.g. Art. 194(2) of the Swiss Code of Criminal Procedure of 5 October 2007 [SR 312.0]; Art. 97(1) of the Foreign Nationals and Integration Act [FNIA] and Art. 96(1) Asylum Act [AsylA]).
- We transmit data to foreign authorities in the framework of bilateral or international agreements or in accordance with applicable European law. In EU member states, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) applies. In third countries outside the EU, (local) national law must be observed. In the absence of legislation or of sufficient guarantees in the requesting third country to ensure an adequate level of protection, data will only be disclosed to the foreign country under the exceptions provided in Art. 16 et seq. FADP (see also Art. 97 et seq. AsylA).
- Access to archived documents (both judicial and administrative files; also see point 8 below) may be granted under certain circumstances even before the expiry of the safeguard period (see Art. 9 et seq. ArchA) on the basis of Art. 13(1) ArchA inter alia. Moreover, inspection of files may be subject to requirements and conditions, including the anonymisation of personal data (Art. 13(3) ArchA).
7. Automated decision-making
In the scope of the FADP, the FAC does not make any automated decisions within the meaning of Art. 21 FADP. Therefore, no further information is required on this point.
8. Data collected when you visit our website at www.bvger.ch.
We have commissioned two external providers located in Switzerland to provide webhosting and related support services. To ensure the smooth functioning of our website, both providers have been given the necessary technical access. With a view to securing round-the-clock operation, an external (remote) hosting service is set up for the servers in the event of emergencies. The partner company satisfies the requirements of Art. 16(1) FADP.
b) When you use our website, the following data are recorded in log files:
- IP address;
- Date and time of request;
- Time difference with Greenwich Mean Time (GMT);
- Pages visited;
- Access status/http status code;
- Volume of data transferred in each case;
- Previously visited pages;
- Operating system;
- Browser software language and version.
These data are assessed with web analysis tools in order to continuously improve the functioning of our website. For this purpose, the FAC uses Matomo as its standard software solution. The data collected are used exclusively for non-personal web analysis; they are neither shared nor merged with other databases.
The user's IP address must be temporarily stored on the system to enable the delivery of the website to the user's computer. There is no further storage of the IP address, neither for individual personal evaluation nor for marketing purposes.
Once your personal data is no longer required for the purpose for which it was collected, the data is deleted. Data collected for the purpose of assuring delivery of the website is deleted when the session is closed. Data stored in log files is deleted at the latest after 30 days.
The FAC online offer uses both temporary cookies, which are necessary for the technical functioning of the website (session cookies), and permanent cookies. Session cookies are automatically deleted after your visit to the website. Permanent cookies are used to improve website operability, including of the backend, and to recognise the user (e.g. for language settings or login information).
If you do not want cookies to be stored on your computer, you can opt out by deactivating the corresponding option in the system settings of your browser. Cookies that have been saved can also be deleted in the browser settings. However, if you deactivate cookies in your browser settings, you may not be able to use all the functions of the website.
Cookies used on our website:
d) Social media plug-ins and YouTube
The FAC website contains what are known as social media plug-ins which are deactivated by default. To connect to the chosen social media network, you must first click on the corresponding icon (two-click solution); the provider is informed only that you are accessing the social media platform from the FAC website. Any further activities on the relevant social media platform are subject to the privacy policies of the individual plug-in providers.
YouTube video files are embedded in the FAC website using the "no-cookie method": this means that no information relating to you is transmitted to YouTube when you view the videos.
e) Press releases and FAC newsletter subscriptions
Interested persons may use our website to subscribe to the FAC press releases and newsletter. To subscribe to the newsletter, you must register, indicating your language, name and surname, and your e-mail address.
Registration for the newsletter follows a double opt-in procedure. This means that after registration, you will receive an email asking you to activate the registration. This is necessary in order to avoid unauthorised registrations by third parties.
The data provided will be used exclusively for the purpose of delivering the newsletter. The processing of this data is based on your consent (Art. 34(4)(b) FADP). You may cancel your subscription to the newsletter at any time. To do so click on the corresponding link at the bottom of each newsletter. You can also unsubscribe using the general contact form of the Media Service of the Federal Administrative Court.
Once you have unsubscribed, your contact details will be deleted from our mailing system.
f) When you use our contact form
You can contact us using the contact form available on our homepage. When you contact us, your data is processed in order to handle your request. The personal data entries in the contact form are generally saved electronically, if necessary under an own matter number.
The personal data entered in the input mask or taken from your email are processed exclusively for the purposes of your enquiry. Any other processing of personal data during the delivery of the contact form serves to prevent misuse of the form and to ensure the security of the IT system.
The legal basis for processing your personal data is your consent (Art. 34(4)(b) FADP).
If your enquiry or the ensuing administrative transaction is of legal, political, economic, historical, social or cultural relevance, the corresponding information may be stored for up to 50 years in accordance with Archiving Act (Art. 11(1) ArchA).
These provisions apply analogously to hard copy submissions.
Please note that no procedural correspondence can be exchanged using the embedded contact form. Electronic submissions within the meaning of Art. 21a APA must be made through a legally-authorised platform. When considering an electronic submission, please verify the applicable legal situation on our website or seek advice from a qualified person.
9. Your rights as data subject vis à vis the FAC
Data protection law grants you a number of rights for the effective protection of your personal data; you may assert these rights against the FAC in writing:
a) Right to information (Art. 25 FADP)
Irrespective of your right to inspect files in accordance with Art. 26 APA, Art. 25 FADP entitles you to information on whether we are processing personal data relating to you. We reserve the right in any event to restrict or refuse access as provided by law (see Art. 26 et seq. FADP).
For identification purposes, please attach a copy of a valid identification document (ID card or passport) (Art. 16(5) DPO).
b) Right to rectification and erasure or restriction of processing (Art. 41 FADP)
Art. 41(2)(a) FADP gives you the right to request the rectification of unlawfully processed personal data, its erasure or destruction. You may also demand that we communicate our decision regarding the rectification, erasure or destruction of personal data, the objection against its disclosure or its marking as disputed to third parties or that we publish the decision (Art. 41(2)(b) FADP).
This provision does not apply to court proceedings (Art. 2(3) FADP) where all submissions and attachments must be kept on file. Since the files document the entire course of the proceedings, the data subject does not have any right to subsequently remove any part of the files.
c) Right to data portability (Art. 28 FADP)
Under Art. 28 FADP you have the right, under certain circumstances, to ask us to deliver the personal data that you have disclosed to us in a conventional electronic format or to transfer your personal data to a third party designated by you.
d) Right of objection (Art. 37 FADP)
Pursuant to Art. 37 FADP – unless there is a legal duty to disclose the data or if the fulfilment of our tasks would otherwise be jeopardised – you have the right to block or object to the disclosure of specific personal data if you can credibly show a legitimate interest. Here again, this provision does not apply in the case of court proceedings (Art. 2(3) FADP).
e) Right to revoke your consent to data processing
If you have consented to the processing of your personal data in a specific case (Art. 34(4)(b) FADP), you may revoke such consent at any time. The revocation does not affect the lawfulness of any data processing carried out prior to revocation relying on that consent.
If you make use of the above-mentioned rights, we will verify the legal requirements ex officio. The above-mentioned rights do not apply in the case of judicial proceedings (Art. 2(3) FADP).
10. Supervision of the Federal Supreme Court (FSC)
We take the protection of your personal data very seriously. You may contact us at any time with your concerns about our processing of your personal data.
If necessary, moreover, you may also contact the Swiss Federal Supreme Court, Avenue du Tribunal-Fédéral 29, 1000 Lausanne 14.
11. Requests for access under the FoIA
As indicated at the beginning of this notice, the FAC Data Protection Officer also handles access requests under the Freedom of Information Act. The correspondence received by the FAC is documented in its records and the corresponding documents are archived in compliance with the relevant archiving regulations.
12. Inspection of files
Art. 26 APA regulates the inspection of files in ongoing proceedings. Outside proceedings, requests under Art. 29(2) of the Federal Constitution or Art. 13(1)(b) of the Federal Act of 26 June 1998 on Archiving (ArchA, SR 152.1) must be substantiated (interest worthy of protection). The fees incurred in processing the request are governed by the regulations of 21 February 2008 on the administrative fees of the Court (GebR-BVGer, SR 173.320.3).
13. How long do we keep your personal data and how long are they archived?
Relying on Art. 4(4) ArchA in conjunction wth Art. 7(2) of the Archiving Ordinance, the FAC has concluded an agreement with the Swiss Federal Archives to archive its files independently in accordance with the directives of 13 July 1999 on the preservation of files in the Federal Administration.
In keeping with Art. 11(1) ArchA and Art. 14(1) of the Archiving Ordinance, the FAC retains case files for 50 years (Art. 6(2) FAC archiving regulations) subject to the normal safeguard period of 30 years (Art. 9(1) ArchA, Art. 6(1) FAC archiving regulations) or the extended safeguard periods under Art. 8 of the FAC archiving regulations.
Administrative files are archived if they are of historical relevance for the FAC or if they have general legal, political, economic, historical, social or cultural value. All other administrative files are preserved as long as there is a possibility that they may be useful at a later date. Special legal rules may apply to individual types of files. Files relating to requests to inspect archive records are archived (Art. 4 FAC archiving regulations). To the extent these documents do not contain any sensitive personal data or personal profiles they are safekept for 30 years, otherwise they are subject to the 50-year safeguard period (Art. 6(1) and (3) of the FAC archiving regulations).
Special rules apply in the area of personnel management. In principle, there is a ten-year retention requirement after termination of the employment contract before the data are offered to the Federal Archives for transfer. At the same time, data that do not warrant archiving are destroyed (see Art. 23 FPO for example). The personal data of rejected job applicants are an exception: hard copy applications are returned to the senders and, save for the motivation letter, the rest of the data are destroyed at the latest three months after the recruitment process is completed (Art. 10(3) FPO).
In accordance with the Factsheet of 12 April 2017 of the Swiss Federal Archives on the preparation and delivery of personnel files, when digital and analogue personnel files are archived, samplings are created. This is because there is in principle a retention requirement of ten per cent of all departing employees at the reference date of 31 December. Then, every ten years, the files of all former employees with leaving dates in years ending in 2 (2012, 2022, etc.) are archived. Regardless of the year of departure, the files of all former employees of the Federal Administration and the federal courts who held hierarchically significant positions are archived.
Last update: July 2023