Video surveillance
II. RELEVANT DOMESTIC LAW A. Constitution of Montenegro 2007 ( Ustav Crne Gore; published in the Official Gazette of Montenegro - OGM - no. 01/07) 18. Article 40 provides that everyone has the right to respect for their private and family life. 19. Article 43 provides that everyone has the right to be informed about the gathering of personal data about them and the right to judicial protection in case of misuse. 20. Article 28 § 2 guarantees, inter alia, privacy and personal rights. 21. Article 24 § 1 provides that guaranteed human rights and freedoms can be restricted only by law, to the extent allowed by the Constitution and as far as is necessary in an open and democratic society to serve the purpose for which the restriction was allowed. 22. Article 149 provides that the Constitutional Court rules on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution after all other effective legal remedies have been exhausted. 23. The Constitution entered into force on 22 October 2007. B. The Personal Data Protection Act ( Zakon o zaštiti podataka o ličnosti; published in the OGM nos. 79/08, 70/09 and 44/12) 24. Section 10 provides that personal data can be processed only after consent has been obtained from the person whose data are to be processed and the consent can be withdrawn at any time. 25. Section 21 provides that the person responsible for handling the data that has been gathered must inform the person involved about, inter alia, the legal grounds and purpose of the gathering of the data and about the right of access to the information. 26. Section 35(1) provides that public institutions ( javni sektor ) can carry out video surveillance of an area of access ( pristup ) to official premises. 27. Section 36 provides that video surveillance can be carried out in official or business premises to ensure the safety of people or property or for the protection of confidential data if that cannot be achieved in any other way. 28. Section 48 provides that the person responsible for handling any data that has been collected is also responsible for any damage caused by a violation of the rights provided for by the Act, in accordance with the general rules on compensation for damage. 29. Sections 49 - 73a provide details about the Agency and its supervisory activities ( nadzor ). 30. Section 49, 51 and 52 define the Agency as an independent supervisory body ( nadzorni organ ), composed of the Agency Council and the director. The Agency Council has a president and two members, who are all appointed by Parliament and who answer to Parliament. 31. Section 50 provides that the Agency oversees ( vrši nadzor ) the implementation of personal data protection in accordance with the Act; decides on requests for data protection; gives opinions on the implementation of the Act; gives consent related to creating collections ( uspostavljanje zbirki ) of personal data; gives its opinion on whether a certain amount of personal data can be considered as “collection” within the meaning of the Act; monitors the implementation of organisational and technical measures for personal data protection; makes proposals and recommendations for the improvement of personal data protection; gives its opinion on whether a certain way of processing personal data ( obrada ) endangers rights and freedoms; cooperates with bodies from other countries in charge of personal data protection; cooperates with competent State bodies in preparing regulations relating to personal data protection; gives assessments of the constitutionality and legality of Acts and other regulations relating to personal data processing; as well as other functions in accordance with the Act and the Free Access to Information Act. 32. Sections 56-72 provide that the Agency performs its supervisory function through inspectors ( kontrolori ), who make reports ( zapisnik ) on their work. Parties can file an objection ( prigovor ) against the inspectors ’ reports and the Agency Council must rule thereon. By means of its decisions the Agency can, inter alia, order that irregularities in personal data processing be removed within a certain time; temporarily prohibit personal data processing when it is contrary to the Act; and order that personal data which have been collected without legal grounds be erased. An administrative dispute can be initiated against the Agency ’ s decisions. C. The Obligations Act 2008 ( Zakon o obligacionim odnosima; published in the OGM nos. 47/08 and 04/11) 33. Sections 151, 206 and 207 of the Obligations Act, taken together, provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of damage to his or her reputation or a breach of personal integrity, liberty or other personal rights ( prava ličnosti ) is entitled to seek injunctive relief, sue for financial compensation and request other forms of redress “which might be capable” of affording adequate non-pecuniary relief. 34. Section 166 provides, inter alia, that a legal entity ( pravno lice ), which includes the State, is liable for any damage caused by one of its bodies to a “third person” in the course of performing its functions or acts related thereto. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 35. The applicants complained under Article 8 of the Convention that the alleged unlawful installation and use of video surveillance equipment in the university auditoriums where they held classes had violated their right to respect for their private life. The relevant Article reads as follows: “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.” 36. The Government contested that argument. A. Admissibility 1. The parties ’ submissions 37. The Government submitted that not all professional and business activities fell within the ambit of private life. The university was a public institution and teaching was an activity of public interest ( djelatnost od javnog interesa ). The area that had been under surveillance was a working area outside the scope of personal autonomy, unlike professors ’ offices, where a certain amount of personal autonomy could exist. 38. They further maintained that the applicants had failed to exhaust all the effective domestic remedies, notably a constitutional appeal. 39. The applicants contested the Government ’ s submissions. In particular, they averred that a constitutional appeal was not an effective remedy at the relevant time. 2. The Court ’ s assessment (a) Applicability of Article 8 40. The relevant principles in this regard are set out, for example, in Niemietz v. Germany (16 December 1992, §§ 29-31, Series A no. 251 ‑ B); Peck v. the United Kingdom (no. 44647/98, §§ 57-58, ECHR 2003 ‑ I); Halford v. the United Kingdom (25 June 1997, §§ 44-46, Reports of Judgments and Decisions 1997 ‑ III); Fernández Martínez v. Spain [GC] (no. 56030/07, §§ 109-110, ECHR 2014 (extracts)); and Bărbulescu v. Romania [GC] (no. 61496/08, §§ 70-73, 5 September 2017). 41. In particular, the Court reiterates that “private life” is a broad term not susceptible to exhaustive definition and that it would be too restrictive to limit the notion of “private life” to an “inner circle” in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle (see Niemietz, cited above, § 29). Article 8 thus guarantees a right to “private life” in the broad sense, including the right to lead a “private social life”, that is, the possibility for the individual to develop his or her social identity. In that respect, the right in question enshrines the possibility of approaching others in order to establish and develop relationships with them (see Bărbulescu, cited above, § 70, and the authorities cited therein). 42. The Court has already held that the notion of “private life” may include professional activities or activities taking place in a public context (see Bărbulescu, cited above, § 71, and the authorities cited therein). It is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity to develop relationships with the outside world, and it is not always possible to distinguish clearly which of an individual ’ s activities form part of his professional or business life and which do not (see Niemietz, cited above, § 29). There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life” (see Peck, cited above, § 57), professional life being part of it (see Fernández Martínez, cited above, § 110 in fine ). 43. In order to ascertain whether the notion of “private life” is applicable, the Court has on several occasions examined whether individuals had a reasonable expectation that their privacy would be respected and protected. In that context, it has stated that a reasonable expectation of privacy is a significant though not necessarily conclusive factor (see Bărbulescu, cited above, § 73, and the authorities cited therein). 44. Turning to the present case, the Court notes that university amphitheatres are the workplaces of teachers. It is where they not only teach students, but also interact with them, thus developing mutual relations and constructing their social identity. It has already been held that covert video surveillance of an employee at his or her workplace must be considered, as such, as a considerable 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 the work in that place, cannot evade (see Köpke v. Germany ( dec. ), no. 420/07, 5 October 2010). There is no reason for the Court to depart from that finding even where it concerns cases of non ‑ covert video surveillance of an employee at his or her workplace. Furthermore, the Court has also held that even where the employer ’ s regulations in respect of the employees ’ private social life in the workplace are restrictive they cannot reduce it to zero. Respect for private life continues to exist, even if it might be restricted in so far as necessary (see Bărbulescu, cited above, § 80). 45. In view of the above, the Court considers that the data collected by the impugned video surveillance related to the applicants ’ “private life”, thus making Article 8 applicable to their complaint. ( b ) Exhaustion of domestic remedies 46. The relevant principles in this regard are set out in Vučković and Others v. Serbia (preliminary objection) ( [GC], nos. 17153/11 and 29 others, § § 69-75, 25 March 2014 ). 47. Turning to the present case, the Court has already held that as of 20 March 2015 a constitutional appeal in Montenegro can in principle be considered an effective domestic remedy (see Siništaj and Others v. Montenegro, nos. 1451/10 and 2 others, § 123, 24 November 2015). The Court reiterates in this regard that, while it can be subject to exceptions which might be justified by the specific circumstances of each case, the issue of whether domestic remedies have been exhausted is normally determined by reference to the date when the application was lodged with the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001 ‑ V (extracts)). Given that the applicants lodged their application in October 2013, which was long before the constitutional appeal became an effective domestic remedy in the respondent State, the Court considers that they were not required to avail themselves of that particular remedy (see Siništaj and Others, cited above, §§ 124-125). The Government ’ s objection must therefore be dismissed. ( c ) The Court ’ s conclusion 48. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions ( a ) The applicants 49. The applicants submitted that the impugned video surveillance had been unlawful, had not pursued any legitimate aim and had not been necessary in a democratic society. The Dean of the School had collected and processed the data obtained thereby without any restriction and the applicants had had no effective control over that information. The Agency had also failed to live up to its legal obligations, thus in addition making the interference arbitrary. ( b ) The Government 50. The Government submitted that surveillance over activities that took place in public or with photographic equipment was not considered to be an interference with a person ’ s private life unless it was disclosed or published, which was not the case here. 51. They further submitted that the impugned interference, in spite of certain administrative failures ( i pored određenih administrativnih propusta ), had been lawful, had pursued a legitimate aim, and had been necessary in a democratic society. 52. The aim that had been pursued, which could not have been achieved in a less invasive manner, had been the prevention and investigation of safety-related incidents, such as thefts and burglaries, in which property belonging to both the university and its employees, including professors, had been stolen. It had also aimed at preventing the bringing in of firearms, “the unauthorised bringing in of animals”, begging, as well as incidents in the amphitheatres in which professors had been threatened with physical violence. Even the police had recommended the installation of video surveillance equipment. 53. They further maintained that all the people involved, including the applicants, had been duly informed of the measure, that the data collected had not been misused in any way and that only the Dean of the School had had access to it. The data had therefore been used exclusively for the purposes provided for by the law and within a limited period, given that the data had been automatically deleted after thirty days. The Government further submitted that the cameras had taken low - resolution pictures, had had no zoom capacity, and that their location and angles of recording had been set up “in accordance with a methodological risk analysis, but also with personal data protection”. 54. The Government averred that States had a wide margin of appreciation when it came to video surveillance in the public interest, and the respondent State had acted in accordance with both national and European legal standards. In any event, it was not the Court ’ s task to assess the interpretation and application of national law by the domestic courts, nor their findings and conclusions, and the domestic courts had found no violation of the applicants ’ right to respect for their private life. 2. The Court ’ s assessment 55. The Court has already held in the present case that video surveillance of an employee in the workplace, be it covert or not, must be considered as a considerable intrusion into the employee ’ s private life (see paragraph 44 above), and hence it considers that it constitutes an interference within the meaning of Article 8. Any interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one of more of the legitimate aims to which that provision refers and is necessary in a democratic society in order to achieve any such aim (see Vukota-Bojić v. Switzerland, no. 61838/10, § 60, 18 October 2016). 56. The Court notes that the domestic courts did not examine the question of the acts being in accordance with the law given that they did not consider the impugned video surveillance to be an interference with the applicants ’ private life in the first place. 57. However, the Personal Data Protection Agency did and in doing so explicitly held that it was not in accordance with the law, notably sections 10, 35 and 36 of the Personal Data Protection Act (see paragraph 11 above). 58. The Court observes in that respect that section 35 provides that public institutions – the university, according to the Government ’ s own submission, being one of them – can carry out video surveillance of areas of access to official premises. However, in the present case the video surveillance was carried out in the amphitheatres. 59. Moreover, section 36 provides that video surveillance equipment can also be installed in official or business premises, but only if the aims provided for by that section, notably the safety of people or property or the protection of confidential data, cannot be achieved in any other way. The Court observes that video surveillance was introduced in the present case to ensure the safety of property and people, including students, and for the surveillance of teaching. It is noted that one of those aims, notably the surveillance of teaching, is not provided for by the law at all as a ground for video surveillance. Furthermore, the Agency explicitly held that there was no evidence that either property or people had been in jeopardy, one of the reasons to justify the introduction of video surveillance (see paragraph 11 above), and the domestic courts did not deal with that issue at all (see paragraph 14 in fine above). The Government, for their part, neither provided any evidence to the contrary in that regard (see paragraph 5 2 above) nor showed that they had even considered any other measure as an alternative beforehand. 60. Given that the relevant legislation explicitly provides for certain conditions to be met before camera surveillance is resorted to, and that in the present case those conditions have not been met, and taking into account the decision of the Agency in this regard ( in the absence of any examination of the question by the domestic courts ), the Court cannot but conclude that the interference in question was not in accordance with the law, a fact that suffices to constitute a violation of Article 8. Having regard to the foregoing conclusion, the Court does not consider it necessary to examine whether the other requirements of paragraph 2 of Article 8 were complied with (see Amann v. Switzerland [GC], no. 27798/95, § 81, ECHR 2000 ‑ II, and Vukota-Bojić, cited above, § 78). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 61. 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 62. The applicants claimed 1,000 euros (EUR) each in respect of non ‑ pecuniary damage. 63. The Government contested the applicants ’ claim. 64. The Court awards the applicants EUR 1,000 each in respect of non ‑ pecuniary damage. B. Costs and expenses 65. The applicants also claimed EUR 1,312.50 for the costs and expenses incurred before the domestic courts and EUR 357 for those incurred before the Court. 66. The Government contested the applicants ’ claim. 67. 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, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants jointly the entire sum of EUR 1,669.5 covering costs under all heads. C. Default interest 68. 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.
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that the camera surveillance had not been in accordance with the law. It first rejected the Government’s argument that the case was inadmissible because no privacy issue had been at stake as the area under surveillance had been a public, working area. In this regard the Court noted in particular that it had previously found that private life might include professional activities and considered that was also the case with the applicants. Article 8 was therefore applicable. On the merits of the case, the Court then found that the camera surveillance had amounted to an interference with the applicants’ right to privacy and that the evidence showed that that surveillance had violated the provisions of domestic law. Indeed, the domestic courts had never even considered any legal justification for the surveillance because they had decided from the outset that there had been no invasion of privacy.