Verborgen camera’s diefstal

 

Instantie: Europees Hof voor de Rechten van de Mens
Datum uitspraak: 09-01-2018
Rechtsgebied: Bescherming persoonsgegevens, privacy
 
tegen
Spanje
Regelgeving:
Inhoudsindicatie

Gebruik verborgen camera’s om diefstal door kassières te ontdekken is onrechtmatig

Samenvatting

In 2009 merkte een filiaalmanager van een Spaanse supermarkt enkele onregelmatigheden op tussen voorraadniveaus van de supermarkt en wat er dagelijks werd verkocht. Om deze reden werd het besluit genomen om zowel zichtbare als onzichtbare camera’s te installeren. De zichtbare camera’s zijn bij de in- en uitgang van de supermarkt opgehangen. De verborgen camera’s zijn bij de kassa opgehangen om het personeel te controleren. De werknemers zijn enkel geïnformeerd over de inzet van de zichtbare camera’s.

Uit de opnamen van de verborgen camera’s is gebleken dat een vijftal kassamedewerkers klanten en collega’s hebben geholpen met het plegen van diefstallen. Tevens hebben deze werknemers zelf producten meegenomen. Als gevolg hiervan zijn de werknemers ontslagen. Zij vochten hun ontslag aan met een beroep op inbreuk op hun privacy. De nationale gerechten oordeelden echter dat de inbreuk gerechtvaardigd was. Zowel in eerste aanleg als in hoger beroep zijn de camerabeelden geaccepteerd als bewijs.

Het EHRM is van oordeel dat de Spaanse overheid in strijd heeft gehandeld met art. 8 EVRM. Op grond van de destijds geldende nationale wetgeving hadden de werknemers geïnformeerd moeten worden over het opslaan en bewerken van persoonlijke data. De supermarkt heeft de werknemers echter niet vooraf geïnformeerd over het feit dat er verborgen camera’s zouden worden ingezet.

De Spaanse rechter oordeelde dat de maatregel gerechtvaardigd was. De maatregel was noodzakelijk en proportioneel en bovendien was er geen andere minder ingrijpende maatregel om het doel te bereiken, aldus de Spaanse rechter. Het EHRM volgt de Spaanse rechter niet in dit oordeel. Het EHRM is van oordeel dat de inzet van verborgen camera’s niet proportioneel was doordat alle werknemers wekenlang gedurende de volledige werktijd werden gefilmd. De werkgever heeft niet voldaan aan zijn verplichting om de werknemers vooraf, expliciet, precies en ondubbelzinnig te informeren over deze gegevensverzameling. De werknemers hadden op z’n minst algemene informatie moeten krijgen over het heimelijk cameratoezicht en over hun rechten op grond van de geldende privacywetgeving.

Het EHRM oordeelt dat sprake is van schending van art. 8 EVRM. De werknemers hebben, wegens de inbreuk op hun privacy, recht op schadevergoeding van de Spaanse overheid.

Uitspraak
I. Joinder of the applications

40. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.

II. Alleged violation of Article 8 of the Convention

41. The applicants complained that the covert video surveillance ordered by their employer as well as the recording and use of the data obtained therefrom in the proceedings before the domestic courts had breached their right to privacy under Article 8, which provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. Admissibility

42. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits
1. The parties’ submissions
(a) The applicants

43. All the applicants considered that the covert video surveillance of their place of work had seriously interfered with their right to privacy. They contended that the purpose of Article 8 of the Convention was not limited to protect the individual against interference by the public authorities, but also to secure respect for private life even in the sphere of the relations of individuals between themselves.

44. The applicants further noted that, in the present case, a video recording of them at their workplace had been made without their employer giving them prior notice, as was required by the domestic law in force at the time (and, in particular, by the Personal Data Protection Act).

45. They also argued that the covert video surveillance had not been limited in time as it had had a permanent nature with the purpose of monitoring all staff during working hours.

46. The applicants further alleged that the use of the video recordings as evidence in the proceedings before the domestic courts had seriously interfered with their right to privacy.

(b) The Government

47. The Government firstly noted that installation of the covert video surveillance had been carried out by a private company, which meant that any violation of the Convention could not be attributable to the State.

48. They further stated that the employer had informed the employees of the installation of a system of video surveillance for theft prevention purposes. They also acknowledged, however, that the employees had not been informed of the installation of covert video surveillance zoomed in on the cash desks. According to the Government, the employees also had not specifically been informed of their rights under the Personal Data Protection Act.

49. The Government also noted that the legislation in force at the time provided every citizen with a means to complain about the use of covert video surveillance to the Data Protection Agency, which could have led to the company being administratively sanctioned.

50. Lastly, the Government concluded that the installation of covert video surveillance without prior notice to the applicants had not been in conformity with Article 18.4 of the Spanish Constitution or Article 8 of the Convention. Nonetheless, they reiterated that, under Article 1 of the Convention, the State should bear no responsibility, since the covert video surveillance had been carried out by a private company.

(c) European Trade Union Confederation (ETUC), third-party intervener

51. The ETUC, intervening as a third party, expressed its concern as regards the fact that States might not sufficiently protect the privacy of workers in the workplace. The ETUC emphasised that the protection of privacy in general and in employment relations in particular was a relatively new aspect of international human rights protection and that the risks for privacy deriving from new technologies were increasing. This was why international, and, in particular, European Human Rights protection had developed in the sense that irrespective of the question of permitted processing of personal data as such, the person(s) concerned had to be informed. For the ETUC, a person’s consent was, in principle, necessary.

52. The ETUC also stressed that the right to be informed of the existence of personal data was expressly recognised in domestic law under section 5(1) of the Personal Data Protection Act. It also highlighted how several European legal instruments (at Council of Europe as well as European Union level) had addressed the protection of privacy, either in the general form of protection of personal data or more specifically as video surveillance at the workplace.

53. The ETUC concluded that the right of the data subject to be informed before the processing of personal data was to be considered as a right derived from Article 8 of the Convention as a procedural safeguard, a right which was also enhanced by the principle of prior consent before data processing.

2. The Court’s assessment
(a) General principles

54. The Court reiterates that “private life” within the meaning of Article 8 of the Convention is a broad term not susceptible of exhaustive definition. The choice of the means calculated to secure compliance with Article 8 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different ways of ensuring respect for private life, and the nature of the State’s obligation will depend on the particular aspect of private life that is at issue (Söderman v. Sweden [GC], no. 5786/08, § 79; and Barbulescu v. Romania [GC], no. 61496/08, § 113).

55. The concept of private life extends to aspects relating to personal identity, such as a person’s name or picture (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002; and Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004-VI). It may include activities of a professional or business nature and may be concerned in measures effected outside a person’s home or private premises (compare Peck v. the United Kingdom, cited above, §§ 57-58; Perry v. the United Kingdom, cited above, §§ 36-37; and Benediktsdóttir v. Iceland (dec.), no. 38079/06, 16 June 2009).

56. In the context of the monitoring of the actions of an individual by the use of photographic equipment, the Court has found that private-life considerations may arise concerning the recording of the data and the systematic or permanent nature of the recording (compare P.G. and J.H. v. the United Kingdom, no. 44787/98, § 57, ECHR 2001-IX; Peck, cited above, §§ 58-59; and Perry, cited above, § 38). A person’s image constitutes one of the chief attributes of his or her personality, as it reveals unique characteristics and distinguishes him or her from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development and presupposes the right to control the use of that image (see Reklos and Davourlis v. Greece, no. 1234/05, § 40, 15 January 2009).

57. The Court has considered relevant in this connection whether or not a particular individual was targeted by the monitoring measure (compare Rotaru v. Romania [GC], no. 28341/95, §§ 43-44, ECHR 2000-V; Peck, cited above, § 59; and Perry, cited above, § 38) and whether personal data was processed or used in a manner constituting an interference with respect for private life (see, in particular, Perry, cited above, §§ 40-41, and I. v. Finland, no. 20511/03, § 35, 17 July 2008). A person’s reasonable expectation as to privacy is a significant though not necessarily conclusive factor (see Halford v. the United Kingdom, 25 June 1997, § 45, Reports of Judgments and Decisions 1997-III; and Perry, cited above, § 37; and Barbulescu, cited above, § 73).

(b) Application of the above principles to the present case

58. The Court observes that, in the present case, the employer decided to install surveillance cameras consisting of both visible and hidden cameras. The employees were only aware of the visible cameras zoomed in on the supermarket exits – they were not informed of the installation of video surveillance covering the cash desks.

59. The Court observes that the covert video surveillance of an employee at his or her workplace must be considered, as such, as a considerable intrusion into his or her private life. It entails a recorded and reproducible documentation of a person’s conduct at his or her workplace, which he or she, being obliged under the employment contract to perform the work in that place, cannot evade (see Köpke, cited above). The Court is therefore satisfied that the applicants’ “private life” within the meaning of Article 8 § 1 was concerned by these measures.

60. According to the Government, the video surveillance was carried out on the instructions of the applicants’ employer, a private company which could not by its actions engage State responsibility under the Convention. The Court reiterates, however, that, although the purpose of Article 8 is essentially to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see von Hannover, cited above, § 57; I. v. Finland, cited above, § 36; K.U. v. Finland, no. 2872/02, §§ 42-43, ECHR 2008; Söderman, cited above, § 78 and Barbulescu, cited above, § 108).

61. Therefore, the Court has to examine whether the State, in the context of its positive obligations under Article 8, struck a fair balance between the applicants’ right to respect for their private life and both their employer’s interest in the protection of its organisational and management rights concerning its property rights, as well as the public interest in the proper administration of justice (see Barbulescu, cited above, § 112).

62. The Court firstly notes that the covert video surveillance was carried out after losses had been detected by the shop supervisor, raising an arguable suspicion of theft committed by the applicants as well as other employees and customers.

63. The Court also observes that the visual data obtained entailed the storage and processing of personal data, closely linked to the private sphere of individuals. This material was thereby processed and examined by several persons working for the applicants’ employer (among others, the union representative and the company’s legal representative) before the applicants themselves were informed of the existence of the video recordings.

64. The Court further notes that the legislation in force at the time of the events contained specific provisions on personal data protection. Indeed, under section 5 of the Personal Data Protection Act, the applicants were entitled to be “previously and explicitly, precisely and unambiguously informed” of “the existence of a personal data file or that the data will be processed, the purpose thereof and the recipients of the information; the obligatory or optional nature of their response to the questions asked; the consequences of providing or refusing to provide the data; the existence of rights of access, rectification, erasure and objection; and the identity and address of the controller or, as appropriate, his representative” (see paragraph 29 above). Article 3 of Instruction no. 1/2006 issued by the Spanish Data Protection Agency also specified that this obligation also applied to anyone using video surveillance systems, in which case, he or she had to place a distinctive sign indicating the areas that were under surveillance, and to make a document available containing the information provided in section 5 of the Personal Data Protection Act (see paragraph 30 above).

65. The Court observes that, as acknowledged by the domestic courts, the applicants’ employer did not comply with the obligation to inform the data subjects of the existence of a means of collecting and processing their personal data, as prescribed in the aforementioned domestic legislation. In addition to this, the Court notes that the Government have specifically acknowledged that the employees were not informed of the installation of covert video surveillance zoomed in on the cash desks or of their rights under the Personal Data Protection Act (see paragraph 48 above).

66. Despite this, the domestic courts considered that the measure had been justified (in that there had been reasonable suspicions of theft), appropriate to the legitimate aim pursued, necessary and proportionate, since there had been no other equally effective means of protecting the employer’s rights which would have interfered less with the applicants’ right to respect for their private life. This was stated by the Employment Tribunal in respect of the first and second applicants and later confirmed by the Catalonia High Court of Justice in respect of all the applicants, which specifically declared that the covert video surveillance (and its use as valid evidence in the framework of the proceedings) had been in conformity with Article 20.3 of the Labour Regulations, and had been proportionate to the legitimate aim pursued and necessary.

67. The Court observes that, in the present case, the situation differs from that in Köpke. Indeed, in that case, at the time the employer carried out the covert video surveillance following suspicions of theft against two employees, the conditions under which an employer could resort to the video surveillance of an employee in order to investigate a criminal offence had not yet been laid down in statute (although the German Federal Employment Tribunal had developed in its case-law important guidelines regulating the legal framework governing covert video surveillance in the workplace). In the present case, however, the legislation in force at the time of the facts of the case clearly established that every data collector had to inform the data subjects of the existence of a means of collecting and processing their personal data (see paragraphs 29 and 30 above). In a situation where the right of every data subject to be informed of the existence, aim and manner of covert video surveillance was clearly regulated and protected by law, the applicants had a reasonable expectation of privacy.

68. Furthermore, in the present case and unlike in Köpke, the covert video surveillance did not follow a prior substantiated suspicion against the applicants and was consequently not aimed at them specifically, but at all the staff working on the cash registers, over weeks, without any time limit and during all working hours. In Köpke the surveillance measure was limited in time – it was carried out for two weeks – and only two employees were targeted by the measure. In the present case, however, the decision to adopt surveillance measures was based on a general suspicion against all staff in view of the irregularities which had previously been revealed by the shop manager.

69. Consequently, the Court cannot share the domestic courts’ view on the proportionality of the measures adopted by the employer with the legitimate aim of protecting the employer’s interest in the protection of its property rights. The Court notes that the video surveillance carried out by the employer, which took place over a prolonged period, did not comply with the requirements stipulated in Section 5 of the Personal Data Protection Act, and, in particular, with the obligation to previously, explicitly, precisely and unambiguously inform those concerned about the existence and particular characteristics of a system collecting personal data. The Court observes that the rights of the employer could have been safeguarded, at least to a degree, by other means, notably by previously informing the applicants, even in a general manner, of the installation of a system of video surveillance and providing them with the information prescribed in the Personal Data Protection Act.

70. Having regard to the foregoing, and notwithstanding the respondent State’s margin of appreciation, the Court concludes in the present case that the domestic courts failed to strike a fair balance between the applicants’ right to respect for their private life under Article 8 of the Convention and their employer’s interest in the protection of its property rights.

III. Alleged violation of Article 6 § 1 of the Convention

71. The applicants complained under Article 6 § 1 that, when deciding their case, the domestic courts had used the surveillance footage proving the commission of the thefts as the main evidence.

72. The third, fourth and fifth applicants also claimed that the settlement agreement on which the fairness of their dismissals had been based should not have been used as evidence, since they had been signed under duress on the basis of the illegally obtained video recordings. Accordingly, the consent they had given in the settlement agreements had not been valid and the agreements should have been declared void.

73. Article 6 § 1 provides as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

74. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits
1. The parties’ submissions
(a) The applicants

75. All the applicants argued that the domestic courts had based the judgments mainly on the findings of the unlawful surveillance carried out by the employer. They further pointed out that they had not been aware of the existence of the covert video surveillance and had only had access to the obtained data once they had already been dismissed. Consequently, they had been prevented from exercising their rights of access, rectification, erasure and objection, as prescribed by section 5 of the Personal Data Protection Act. They added that the videos, which had been obtained in violation of domestic and international law, had been declared admissible by the domestic courts in violation of the applicants’ right to a fair trial.

76. The third, fourth and fifth applicants further stated that the settlement agreements by which the applicants had committed themselves not to bring proceedings for unfair dismissal against their employer should have been declared void since they had signed them against their will and under duress. They added that the employer had had no capacity to waive its right to bring criminal charges against the applicants and therefore no power to prevent a possible criminal complaint against them.

(b) The Government

77. The Government pointed out that the domestic judgments had not been solely based on the covert surveillance footage, but also on several other pieces of evidence, such as the witness statement issued by the union representative, the supporting documents proving the daily accounting irregularities, as well as the applicants’ own behaviour at the time of their dismissals – they all acknowledged the commission of the thefts during the meetings, in the presence of the union representative and the company’s legal representative, among others.

78. As regards the third, fourth and fifth applicants, the Government stressed that the settlement agreements had been valid since they had signed them freely and voluntarily.

(c) European Trade Union Confederation (ETUC), third-party intervener

79. The ETUC considered that a judgment mainly based on covert surveillance footage would be in breach of Article 6 of the Convention.

80. As regards the settlement agreements signed by the third, fourth and fifth applicants, the ETUC pointed out that such agreements were often used when confronting workers with alleged misconduct, creating a situation where the employees felt under specific pressure, were not properly advised and were not aware and even less dared to require the recognition of their procedural and substantial rights. The ETUC concluded that the specificity of employment relations required a cautious approach in respect of recognising such agreements.

2. The Court’s assessment
(a) General principles

81. The Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention.

82. While Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland, 12 July 1988, Series A no. 140, p. 29, §§ 45-46; and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I).

83. The Court reiterates in this connection that it is not its function to determine, as a matter of principle, whether particular types of evidence –for example, evidence obtained unlawfully in terms of domestic law – may be admissible (see Van Mechelen and Others v. the Netherlands, 23 April 1997, § 50, Reports 1997-III; and Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V). The salient question is therefore not whether evidence that was obtained unlawfully or in breach of the Convention should or should not have been admitted, but whether the proceedings as a whole, including the way in which evidence was taken, were fair. This involves an examination of the unlawfulness in question and, where a violation of another Convention right is concerned, the nature of the violation found (see, inter alia, Khan, cited above, § 34; and P.G. and J.H. v. the United Kingdom, cited above, § 76).

84. As to the examination of the nature of the Convention violation found, the Court reiterates that the question whether the use as evidence of information obtained in violation of Article 8 rendered a trial as a whole unfair contrary to Article 6 has to be determined with regard to all the circumstances of the case, including respect for the applicant’s defence rights and the quality and importance of the evidence in question (compare, inter alia, Khan, cited above, §§ 35-40; P.G. and J.H. v. the United Kingdom, cited above, §§ 77-79; and Bykov v. Russia [GC], no. 4378/02, 10 March 2009, §§ 94-98, in which no violation of Article 6 was found). Matters to be taken into account are whether the applicant was able to challenge the authenticity of the evidence and to oppose its use, whether the evidence was of sufficient quality – which entails an inquiry as to whether the circumstances in which it was obtained could cast doubt on its reliability or accuracy – and whether it was supported by other material (see Schenk v. Switzerland, cited above, §§ 46-48; Khan, cited above, §§ 34 and 35; P.G. and J.H. v. the United Kingdom, cited above, §§ 76 and 77; Allan v. the United Kingdom, no. 48539/99, §§ 42 and 43; and Bykov [GC], cited above, §§ 88-90). Lastly, the Court will attach weight to whether the evidence in question was or was not decisive for the outcome of the proceedings (compare, in particular, Khan, cited above, §§ 35 and 37).

(b) Application of the above principles to the present case

85. Turning to the present case and for the sake of clarity, the Court will firstly analyse the alleged violation of Article 6 § 1 as regards all the applicants and in connection with the use as evidence of the covert video surveillance. It will then look at the alleged violation of that Article as regards the third, fourth and fifth applicants in connection with the validity of the settlement agreements signed by them.

(i) Alleged violation of Article 6 § 1 as regards all the applicants

86. The Court will now determine whether the fact that the domestic courts relied on evidence obtained in breach of Article 8 of the Convention also violated the applicants’ right to a fair trial as guaranteed under Article 6 § 1 of the Convention.

87. In the present case the Court must examine whether the use in the proceedings of the covert surveillance footage obtained in breach of the Convention was capable of rendering them as a whole unfair.

88. The Court notes, firstly, that the applicants had ample opportunity to challenge both the authenticity and use of the material obtained through the devices in the adversarial procedure during the trials and in their grounds of appeal. The domestic courts at all levels (namely the Granollers Employment Tribunal no.1, the Catalonia High Court of Justice and the Supreme Court) dealt with their objections in that regard.

89. The Court further observes that the impugned recordings were not the only evidence relied on by the domestic court as the basis for the judgments declaring the dismissals fair. In fact, as regards the first applicant, the main pieces of evidence supporting the fairness of her dismissal were not only the recordings resulting from the covert surveillance, but also the witness statements of a co-worker also dismissed because of her involvement in the thefts, the shop manager, the union representative and the company’s legal representative. In the same way, as regards the remaining applicants, the main evidence supporting the fairness of their dismissals were not only the recordings, but also the witness statements of co-workers also dismissed for their involvement in the thefts, the shop coordinator, the union representative and the company’s legal representative.

90. In view of the above, the Court concludes that nothing has been shown to support the conclusion that the applicants’ defence rights were not properly complied with in respect of the evidence adduced or that its evaluation by the domestic courts was arbitrary (see Bykov [GC], cited above, § 98).

91. The Court finds therefore that the use in the proceedings of the secretly recorded material did not conflict with the requirements of fairness guaranteed by Article 6 § 1 of the Convention.

(ii) Alleged violation of Article 6 § 1 as regards the third, the fourth and the fifth applicants

92. The Court will now turn to whether the domestic courts’ finding that the settlement agreements were valid was in breach of Article 6 § 1 of the Convention.

93. The Court observes that, in the instant case, the domestic courts carefully addressed the admissibility and reliability of the settlement agreements. The applicants had ample opportunity to challenge the validity of the agreements and the domestic courts addressed all the relevant submissions made by them and gave ample reasons as to the validity of the applicants’ consent (see paragraphs 21 and 22 above).

94. The Court further notes that the domestic courts did not find any evidence of any duress which allegedly led the applicants to signing the settlement agreements. In particular, the domestic courts found that the employer’s behaviour could not be classed as a threat that would invalidate the applicants’ consent, but as the legitimate exercise of its right to decide whether or not to initiate criminal proceedings against the applicants, who had also already and voluntarily admitted their involvement in the thefts. The absence of any sign of coercion or duress was corroborated at the hearing by the union representative as well as by the company’s legal representative, who were present at those meetings.

95. In the instant case, the Court sees no reason to challenge the domestic courts’ assessment of the evidence in this regard. Indeed, the Court cannot itself assess the facts which have led a national court to adopt one decision rather than another; otherwise, it would be acting as a court of fourth instance and would disregard the limits imposed on its action (see, mutatis mutandis, Kemmache v. France (no. 3), 24 November 1994, § 44, Series A no. 296-C).

96. In view of the above, the Court finds that there has been no violation of Article 6 § 1 of the Convention in this connection as regards the third, fourth and fifth applicants.

IV. Other alleged violation of the Convention

97. Lastly, the first applicant also complained under Article 6 § 1 of the Convention of the unfairness of the proceedings in that the judgments had lacked proper motivation as to her specific circumstances and reasoning leading to the conclusion that her dismissal had been fair.

98. The Court has examined this complaint. Having carefully considered the applicant’s submissions in the light of all material in its possession and in so far as the matter complained of are within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

99. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

V. Application of Article 41 of the Convention

100. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage
1. Pecuniary damage

101. In respect of pecuniary damage, all the applicants sought compensation for the lost wages they would have received had the domestic courts declared their dismissals unfair and had they continued working at the company consequently.

102. The Government submitted that there was no causal link between the alleged violations and the compensation for pecuniary damage sought. They also added that the applicants had failed to prove that they had not found another job after their dismissals.

103. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

2. Non pecuniary damage

104. The applicants alleged that they had suffered “considerable moral damages” and claimed EUR 6,250 each.

105. The Government contested this claim.

106. Having regard to all the circumstances of the present case, the Court accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. The Court awards each applicant EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on those amounts.

B. Costs and expenses

107. The applicants also claimed a lump sum of EUR 2,906.80 each for the costs and expenses incurred before the domestic courts.

108. The Government contested this claim.

109. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants the amounts indicated in the table below for costs and expenses incurred in the proceedings before the domestic courts:

Application No.

Name of the applicant

Amount

1874/13

Isabel LÓPEZ RIBALDA

EUR 500.00

8567/13

María Ángeles GANCEDO GIMÉNEZ

EUR 568.86

8567/13

María Del Carmen RAMOS BUSQUETS

EUR 568.86

8567/13

Pilar SABORIDO APRESA

EUR 568.86

8567/13

Carmen Isabel POZO BARROSO

EUR 568.86

C. Default interest

110. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

For these reasons, the Court

1. Decides, unanimously, to join the applications;

2. Declares, unanimously, the complaint under Article 8 of the Convention, as well as the complaint under Article 6 § 1 as regards the use of evidence allegedly obtained in breach of Article 8 of the Convention and the complaint under Article 6 § 1 as regards the validity of the settlement agreements admissible and the remainder of the first application inadmissible;

3. Holds, by six votes to one, that there has been a violation of Article 8 of the Convention;

4. Holds, unanimously, that there has been no violation of Article 6 § 1 of the Convention in respect of all the applicants, as regards the use of evidence obtained in breach of Article 8 of the Convention;

5. Holds, unanimously, that there has been no violation of Article 6 § 1 of the Convention in respect of the third, fourth and fifth applicants, as regards the validity of the settlement agreement;

6. Holds, by four votes to three,

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,000 (four thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7. Holds, unanimously,

(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 500 (five hundred euros), plus any tax that may be chargeable, to the first applicant and EUR 568.86 (five hundred and sixty-eight euros eighty-six cents), plus any tax that may be chargeable, to the second, third, fourth and fifth applicants each, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

8. Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction.

Partly dissenting opinion of Judge Polácková joined by Judge Pastor Vilanova

1. We are in agreement with the majority’s reasoning and conclusions relating to the complaint under Article 8 of the Convention, as well as to the complaint under Article 6 § 1 in respect of all the applicants, as regards the use of evidence obtained in breach of Article 8 of the Convention, and the complaint under Article 6 § 1 in respect of the third, fourth and fifth applicants, as regards the validity of the settlement agreements. We also fully share the majority’s reasoning on the application of Article 41 of the Convention as regards costs and expenses.

2. We regret, however, that we are unable to subscribe to the findings by our colleagues in the majority that the respondent State is to pay the applicants EUR 4,000 (four thousand euros) in respect of non-pecuniary damage. That finding was based on the conclusion that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation.

3. We agree with our colleagues in the majority that notwithstanding the respondent State’s margin of appreciation, the domestic courts failed to strike a fair balance between the applicants’ right to respect for their private life under Article 8 of the Convention and their employer’s interest in the protection of its property rights. However, having regard to all the circumstances of the present case and the Court`s recent case law, we have come to the conclusion that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant (compare Barbulescu v. Romania [GC], no. 61496/08, § 148).

Dissenting opinion of Judge Dedov

I regret that I cannot agree with my colleagues, because I believe that the conclusion in the present case is inconsistent with the Court’s case-law, and also for other reasons.

As regards the lack of consistency with the Court’s case-law, one might observe that the approach in the present case differs from a number of cases adjudicated by the Court, including Barbulescu (referred to in the judgment), where the employer had recorded the applicant’s private conversations with members of his family. In the present case there was no interference with private life in such a context.

According to the general principle, covert video surveillance of an employee at his or her workplace must be considered, as such, as a major intrusion into the employee’s private life. It entails the recorded and reproducible documentation of a person’s conduct at his or her workplace, which the employee, being obliged under the employment contract to perform work in that place, cannot evade (see Antovic and Mirkovic v. Montenegro, no. 70838/13, 28 November 2017, § 44, and Köpke v. Germany (dec.), no. 420/07, 5 October 2010). The national authorities therefore are required to strike a balance between the rights and the “competing interests” of the employer and the employees.

Unlike the present case, in Antovic and Mirkovic the Court found that the visible cameras had been installed without any legitimate aim. By way of contrast, the circumstances in Köpke were similar to those of the present case. One might say that the interference in the case of Köpke was more serious because there had only been hidden cameras and the employee had at no stage been notified of any surveillance. Nevertheless, the Court found the complaint ill-founded. In the Köpke decision the Court accepted the domestic courts’ view that there had been no other equally effective means to protect the employer’s property rights which would have interfered to a lesser extent with the applicant’s right to respect for her private life. Having regard to the circumstances of the case, the Court agreed with this finding because the stocktaking carried out in the drinks department could not clearly link the losses discovered to a particular employee. Surveillance by superiors or colleagues or open video surveillance would not have had the same prospects of success in discovering a covert theft.

I have already expressed my opinion in previous cases, such as Vukota-Bojic v. Switzerland, no. 61838/10 and Trabajo Rueda v. Spain, no. 32600/12, that offensive behaviour is incompatible with the right to private life under the Convention. That means that the public interest of society should prevail and that safeguards against unlawfulness and arbitrariness should be limited to protecting against an abusive interference. The majority have implicitly tried to correct a number of irregularities which might be considered abusive. However, I have doubts as to whether there were any abusive elements in the present case.

Firstly, the Court stressed that the employer had installed both visible and hidden cameras. That might be considered an abusive element as the hidden cameras zoomed in on the checkout counters behind the cash desk. However, they were installed in public, and not in private, spaces. Moreover, the company used the records from both types of cameras in evidence of the commission of an offence during the national court proceedings. Thus, the visible cameras seemed necessary in order to provide a complete picture of how the applicants had organised the whole theft process.

Secondly, the employees had not been informed about the surveillance. However, the visible cameras themselves demonstrated that the video surveillance had been organised by the employer, so it could not be said that the employees had not been informed about it. Paragraph 33 of the judgment states that the same approach had been taken by the national Constitutional Court, which had found that a general indication of the operation of video surveillance did not amount to a violation of the right to private life. Equally, this Court cannot find a violation simply because the applicants could not have anticipated that they would be monitored in places where they had stored the stolen items.

Thirdly, another abusive element could be derived from the proposition that the visible cameras had been pointed towards customers, while the hidden cameras had targeted employees. This created an impression that the employer was trying to suggest that the employees were not being specifically monitored at all, while the visible cameras were neutral and could record the actions of both customers and employees, and even the manager himself.

Fourthly, the Court stressed that the decision to adopt surveillance measures had been based on a general suspicion against all staff members (p. 68 of the judgment). I must point out that the losses identified by the manager had been quite numerous (between some EUR 8,000 and EUR 25,000 per month) for a retail supermarket, where individual items were not too expensive, and that the losses had constantly increased over time, so that it could reasonably be concluded that the losses might not have been caused by one person. Therefore, it cannot be concluded that the surveillance was unnecessary. Again, the only place where the stolen items could be hidden from visible cameras was behind the cash desks.

In my view, therefore, the actions of the employer and the national authorities cannot be considered abusive, arbitrary or disproportionate. In the present case, as in the previous cases cited above, the conclusion of the majority contradicts the general principle of law: the applicants should not be legally allowed to profit form their own wrongdoing (see Riggs v. Palmer, 1889). Therefore, the Convention cannot be construed and interpreted in such a way as to allow wrongdoing. The Russian writer Alexander Solzhenitsyn said that no system can survive without repentance and regret. It would be like an oak with a rotten trunk: it would not last long.

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