EHRM: Plaatsen camera's in hoorcollegezalen maakt inbreuk op privacy studenten

EHRM 28 november 2017, IT 2484; IEFbe 2480; Application no. 70838/13 (Antović en Mirković tegen Montenegro) Privacy. De school voor wiskunde van de universiteit van Montenegro heeft camera’s opgehangen in de hoorcollegezalen om de veiligheid van studenten en eigendommen te waarborgen. Hiertegen hebben eisers een klacht ingediend bij de nationale DPA. De universiteit heeft op bevel van de DPA de camera’s uit de hoorcollegezalen verwijderd. Eisers vorderde compensatie van de universiteit voor de inbreuk op hun privacy. De nationale gerechten wijzen de vordering af. Het EHRM oordeelt dat de universiteit een ongerechtvaardigde inbreuk heeft gemaakt op het recht op privacy van eisers. Er was geen reden om aan te nemen dat de studenten of eigendommen in gevaar waren. Er is dus geen rechtvaardiging voor het plaatsen van de camera’s. De vorderingen van eisers worden toegewezen.

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.

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 52 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).