VSL (Slovenia) - 9267/2022

VSL (Slovenia) - 9267/2022
Court:	VSL (Slovenia)
Jurisdiction:	Slovenia
Relevant Law:	Article 12 GDPR
Decided:	27.07.2023
Published:
Parties:
National Case Number/Name:	9267/2022
European Case Law Identifier:	ECLI:SI:VSLJ:2023:V.KP.9267.2022
Appeal from:
Appeal to:
Original Language(s):	Slovenian
Original Source:	VSL (Slovenia) (in Slovenian)
Initial Contributor:	ar

The Ljubljana Higher Court dismissed an appeal brought by the data subject, a defendant in a criminal proceeding, who claimed that the footage of the video surveillance cameras could not be used as evidence since the cameras lacked notice of information. The Court considered the interests at stake and admitted the evidence.

English Summary

Facts

Following a criminal offence, the data subject was identified by the police through video surveillance cameras. The footage of the cameras was used as evidence during the criminal trial, on the basis of which the Court of First Instance convicted the data subject. In his appeal to the Ljubljana Higher, the data subject claimed, among other things, that the footage of the video surveillance cameras, as well as all other evidence obtained based on the footage, should be excluded since the cameras lacked an information notice.

Holding

The Ljubljana Higher Court noted that the Court of First Instance, in accordance with case-law, explained the meaning of the right to privacy and the concept of expectation of privacy in criminal law. It pointed out that the right to privacy is not absolute, as it can be limited, for example, by the rights of others and in situations provided for by the Constitution of the Republic of Slovenia.

Furthermore, the Higher Court explained that for the admissibility of evidence in criminal cases when such evidence was obtained in breach of the right to privacy, the standard of expected privacy should be taken into account. The Court cited the Perry case, where the ECtHR took the view that the normal use of video surveillance cameras in places such as streets, shopping centers or police stations does not in itself raise concerns about the right to respect for private life under Article 8(1) ECHR. Likewise, in the present instance, the Higher Court noted that the cameras were recording streets, courtyards or the vicinity of commercial buildings and the area in front of an ATM, where an individual could not expect privacy in the absolute sense. Thus, the recordings did not disproportionately interfere with the defendant's right to privacy.

The Higher Court further found that the Court of First Instance correctly viewed that even if the surveillance cameras had not been sufficiently visible or had not been accompanied by sufficiently prominent warnings, they would not have constituted inadmissible evidence. The surveillance cameras were installed and used for their normal purpose and did not disproportionately interfere with the defendant's right to privacy. Furthermore, the Higher Court stated that it is a well-known fact that most companies have a video surveillance system installed precisely to safeguard property interests, as are banks that own ATMs. Therefore, anyone in the vicinity of such areas can expect to be subject to video surveillance or recording. Hence, it found that the possible lack of notice of video surveillance is not of such a serious nature that it could reasonably lead to a different perception of the public space among persons in the vicinity of industrial zones, companies, public roads, ATMs, etc.

In conclusion, in accordance with the Court of first instance, the Higher Court stated that even if the video surveillance were contrary to the Slovenian Personal Data Protection Act (ZVOP-1), there would be a clash of two rights, but that, on balance, the rights of the injured company to its private property should take precedence over the data subject's right to privacy at the time of the commission of the offence, as otherwise the potential offenders would be able to carry out their offences unhindered.

In light of the foregoing, the Ljubljana Higher Court ruled that the evidence was lawful and admissible and dismissed the appeal.

Comment

In the present case, it appears that the data subject was recognised by the CCTV cameras of an ATM when committing an offence. However, this is not stated explicitly in the judgement of the Ljubljana Higher Court, hence why the facts above do not further elaborate on what criminal offence the data subject committed.

It is also interesting to note that the Ljubljana Higher Court, in this case, has decided to dismiss the fact that the video cameras were not accompanied by sufficiently prominent warnings. The Court reasoning is that the cameras were installed and used for their normal purpose and because it is a well-known fact that most companies have a video surveillance system to safeguard property interests, so anyone in the vicinity of such areas can expect to be subject to video surveillance. With this reasoning, the Court seems to completely disregard Article 12 GDPR and the principle of transparency.

Nonetheless, this reasoning is in agreement with what the EDPB stated in Guidelines 3/2019. The EDPB noted that it is inherent to European data protection law that data subjects should be aware that video surveillance is in operation, and they should be informed in a detailed manner as to the places monitored. However, the EDPB also referred to Recital 47 GDPR, according to which the existence of a legitimate interest also needs to be carefully assessed, including the reasonable expectations of the data subject at the time and in the context of the processing of its personal data. As an example, the EDPB stated that the customer of a bank might expect to be monitored inside the bank or by the ATM, and signs informing the subject about the video surveillance have no relevance when determining what a data subject can expect objectively .

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English Machine Translation of the Decision

The decision below is a machine translation of the Slovenian original. Please refer to the Slovenian original for more details.

VSL Decision V Kp 9267/2022JedroThe Court of Appeal notes that the court of first instance correctly concluded in the challenged decision that in the case in question it was a normal use of video surveillance cameras - they were installed and used for their normal purpose, i.e. ensuring the safety of people and property, and the recording did not excessively interfere with the individual's right to privacy, as the cameras recorded streets (or public roads), yards, or the immediate vicinity of commercial buildings and the area in front of the ATM. The Court of Appeal affirms the Court of First Instance that the video surveillance in all cases was intended to obtain recordings of all persons who were moving at the time in these areas where persons cannot expect privacy, all with the aim of ensuring the safety of people and property. Therefore, it can anyone who is in the vicinity of such areas expects their behavior to be subject to video surveillance or recording. Therefore, the possible lack of notification about the implementation of video surveillance (which is constantly highlighted by the complainant) is not of such weight and nature that it could reasonably cause a different perception among persons located near industrial zones, commercial companies, on public roads, near ATMs public space (i.e. the expectation that his location or driving there will remain known only to individuals present there at the same time, but not that his behavior will be recorded). Sentence The appeal is rejected as unfounded. Explanation 1. With the decision mentioned in the introduction, the District Court in Ljubljana rejected as unfounded the request of the defendant's defense counsel to exclude the evidence that is exhaustively listed in the sentence of the contested decision. 2. The defense counsel for the defendant filed a timely appeal against the decision on all grounds of appeal, with a proposal that the Court of Appeal uphold the appeal and annul (correctly amend) the decision, and grant the defense counsel's motion to exclude evidence, while the subordinate annuls the decision and returns it to the court of first instance for a new decision. 3. The appeal is not justified. 4. At the outset, the appellant sensibly asserts the ground of appeal of an absolute essential violation of the provisions of the criminal procedure from point 11 of the first paragraph of Article 371 of the Criminal Procedure Act, when she states that the challenged decision is unfounded and without reasons. As will be explained below, the alleged violation was not given, as the court of first instance made the correct decision and explained it with arguments. 5. The Court of Appeal notes that in point 7 of the reasoning of the contested decision, the court of first instance, in accordance with case law, explained the importance of the aspect of the right to privacy and the concept of expected privacy, and correctly emphasized that the right to privacy is not absolute, but is limited by the rights of others and in cases stipulated by the Constitution of the Republic of Slovenia. Furthermore, in point 8 of the reasoning of the contested decision, the court of first instance summarized the contents of the videos obtained from the companies A., d. o. o., and B., d. o. o., and correctly pointed out that it is a matter of footage showing a part of ... the road in C., an industrial zone ... and the warehouse of the injured company, and then also reasonably concluded that it is a public place or a parking lot where an individual cannot expect privacy in the absolute sense that the cameras were used for their normal purpose, i.e. to ensure the safety of people and property, and in terms of quality and scope, they do not intrude into the more intimate spheres of an individual's privacy, which makes it possible to conclude that the recordings did not disproportionately interfere with the defendant's right to privacy, since in the specific case the right to private property outweighs the defendant's right to privacy. The first-instance court correctly concluded and explained this in a meaningful way with regard to the recordings of the security cameras installed in the settlement D. from the company E., d. o. o., and at the ATM of the F. savings bank in the settlement D., which follows from point 9 of the reasoning of the contested decision. The appellant does not even attack these grounds of the contested decision, apart from stating that the individual's right to privacy and the conflict of rights are not relevant to the court's decision. Such a position of the appellant is incorrect and contrary to established judicial practice, which was developed in relation to the admissibility of using video surveillance footage obtained from private individuals, and which was correctly cited by the court of first instance in the challenged decision and was also correctly applied in the specific case . Thus, from the judgment of the Supreme Court of the RS I Ips 6269/2015 of 24 August 2017, it follows that otherwise video recording constitutes an infringement of the right to informational privacy, even if it occurs in a publicly accessible place, but the right to privacy is not absolute, since is limited by the rights of others and in cases stipulated by the Constitution of the Republic of Slovenia, the answer to the question of when it is necessary to provide legal protection to privacy is provided by the so-called the concept of expected privacy. The latter, as already explained, was also emphasized by the court of first instance in the contested decision and, in accordance with the highlighted decision of the Supreme Court of the Republic of Slovenia, correctly stated that the less intimate the area of privacy, the less legal protection it enjoys (point 7 of the reasoning of the contested decision). At the same time, the court of second instance also highlights the decision of the European Court of Human Rights (ECHR), which was also cited by the Supreme Court of the Republic of Slovenia in the above-mentioned decision. It is the case of Perry, in which the ECtHR took the view that the normal use of video surveillance cameras in places such as streets, shopping centers or police stations does not in itself raise concerns about the right to respect for private life under the first paragraph of Article 8. Article of the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR). In the same case, the ECtHR ruled that the recording violated the defendant's right from Article 8 of the ECHR, because the police used the security camera beyond its normal and expected purpose. She recorded the defendant and other individuals with it and showed the recordings to the witnesses of the crimes, as a substitute for identification, which the defendant evaded and resisted. The Court of Appeal notes that the Court of First Instance correctly concluded in the contested decision that the case in question was the normal use of video surveillance cameras - they were installed and used for their normal purpose, i.e. ensuring the safety of people and property, and the recording did not excessively interfere with the individual's right to privacy, as the cameras recorded streets (or public roads), yards, or the immediate vicinity of commercial buildings and the area in front of the ATM. The Court of Appeal affirms the Court of First Instance that the video surveillance in all cases was intended to obtain footage of all persons who were moving at the time in these areas where persons cannot expect privacy, all with the aim of ensuring the safety of people and property. In view of what has been explained, the appeal's statement that the reasons for the decision do not show which data are those from which it does not follow that the cameras operated by the companies A., d. o. o., and B., d. o. o., used for a purpose that would not be normal. The latter derives from points 8 and 9 of the reasoning of the contested decision, in which the court determines what can be seen on the recordings and what their scope is, as explained above. Therefore, the appellant unfoundedly states that the decision in this part is unfounded, and the facts, which the court does not state, cannot be verified. 6. In light of everything explained, the appellant cannot be successful with her appeal by pointing out the duty of public or private sector persons under the Act on the Protection of Personal Data (ZVOP-1) to publish a notice on the implementation of video surveillance, as she completely ignores the above presented in her appeals created jurisprudence on the usefulness of video recordings, while incorrectly stating that the mere absence of such notice automatically means that the obtained recordings are illegal, which the jurisprudence is clear about. The complainant does not say what this case law is supposed to be, and so it remains only at the level of generalized and unsubstantiated assertions. 7. In point 10 of the contested decision, the court of first instance took the correct position that even if the surveillance cameras were not sufficiently visible or there were no properly visible warnings for them, it would not be inadmissible evidence, since the essential thing is that the cameras were placed and used for their normal purpose and did not disproportionately interfere with the defendant's right to privacy. Even the Supreme Court of the Republic of Slovenia emphasized in the above-mentioned decision that in cases where the recordings are obtained by private individuals (and not by the state), it is necessary to weigh the importance and seriousness of the violation from the point of view of the defendant's position on the one hand, and the rights of the injured party, which are interfered with by a criminal act on the other side, as well as that the violation of ZVOP-1 itself, which could be the basis for misdemeanor proceedings, does not affect the processing of evidence obtained in this way in criminal proceedings, since the value assessment is whether such recordings can be used as evidence, in the domain of the criminal court, which decides in a specific procedure. The same point of view is also derived from the judgment of the Supreme Court I Ips 26906/2014 of 22 July 2021, where the court further explained that the objective justification of an individual's expectation of privacy in a public place is influenced, among other things, by the degree of intimacy of the attacked area of privacy, the characteristics of the public of the area that was under video surveillance, the (un)coverage of cameras and the implementation of video surveillance, the range or extent of video surveillance with regard to its expected and normal purpose, while the nature and severity of the violation of ZVOP-1 may affect whether an individual will be perceived differently, i.e. as more private. As already explained, in the case in question, the cameras were recording events on a public surface or in the yards of commercial companies (it was even an industrial zone), they were obviously placed for a purpose that is normal, i.e. to ensure the safety of people and property, in terms of quality and/or extent did not interfere with the more intimate spheres of individual privacy. All of the above clearly follows from the very range of the cameras and the quality of the footage, which is evident both from the videos and photos of the videos, which are on the official note on the established facts and circumstances of the crime dated (March 5, 2021 A1-1/29) . The court of second instance also adds that it is a well-known fact that most companies have a video surveillance system installed precisely to protect their property interests, and the same applies to banks that own ATMs. Therefore, anyone who is in the vicinity of such areas can expect that their behavior will be subject to video surveillance or recording. Therefore, the possible lack of notification about the implementation of video surveillance (which is constantly highlighted by the complainant) is not of such weight and nature that it could reasonably cause a different perception among persons located near industrial zones, commercial companies, on public roads, near ATMs public space (i.e. the expectation that his location or driving there will remain known only to individuals present there at the same time, but not that his behavior will be recorded). According to what has been explained, the appellant unfoundedly asserts the ground of appeal of an incomplete determination of the factual situation, because the court of first instance did not establish before the decision was made whether the notification about the implementation of video surveillance existed on the incriminated day. The appellant also contradicts herself when, on the one hand, she claims that the recordings cover a wider area than is allowed and thus encroach on other people's property, but at the same time she claims that the actual situation remained incompletely established because the court of first instance did not establish what is the working area of each camera that performs video surveillance. The area of the individual cameras can be seen from both the videos and the above-mentioned official note dated 5/3/2021 (A1 – 1/29), which was also described by the court of first instance in the contested decision in points 8 and 9 of the reasoning. The appellant, however, in relation to the findings of the court of first instance regarding the range of the camera of the company A., d. o. o., also makes a completely non-lifelike assessment of the range of this camera when he states that it covers private property (the yard of the injured company) and that is not the purpose of the camera. It is clear from the video of this camera and the photo of the video (pages 4 and 5 of Annex A1 – 1/29) that the camera covers the area in front of the company A., d. o. o., and in the distance also captures the warehouse of the damaged company. Considering the fact that it is an industrial zone, when different economic entities have business areas (buildings together with yards and driveways) next to each other, it is completely vital and logical that the cameras of one economic company also cover some areas of another (neighboring) economic company . It was already explained above what are the permissible purposes of video surveillance in the case of commercial companies, which is undoubtedly also given in the specific case under consideration, so the appellant cannot be successful. In relation to the camera at the facility in the settlement of D., the appellant states on the contrary that it is not known who is its operator, which was correctly stated by the court of first instance in point 9 of the reasoning of the contested decision. In relation to the camera installed at the ATM, when the complainant states that the purpose of the camera is to identify the users of the ATM and not to control traffic in the settlement D., the complainant completely ignores: 1. the range of this camera, which is evident from the video itself and the photos of the video ( page 6 of annex A1 – 1/29), from which it is clear that it is not focused on traffic, but on the surroundings directly in front of the ATM, and covers part of the road because it is placed directly next to the road and 2. the fact that it is common to all cameras are known to be installed on ATMs.8. The Court of First Instance correctly concluded that even if the implementation of video surveillance was in violation of ZVOP-1, there would be a collision of two rights, but when weighing, it would be necessary to give priority to the rights of the injured company to its private property over the right the accused to privacy. The court of second instance also adds that it is vital that, during the execution of a criminal act, the perpetrator's right to privacy should outweigh the potential victims' right to personal safety and the protection of their private property, since in such a case, potential perpetrators would be able to commit crimes unhindered. 9. That being said, the evidence obtained by the police is legal. The court of second instance therefore rejected the appeal as unfounded. Federation: Conventions, Declarations Resolutions Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) - Article 8 RS - Constitution, Laws, Agreements, Treaties Criminal Procedure Act (1994) - ZKP - Article 83, 83/2, 285e, 285e/1, 285e/2 Associated documents:**Cases in which the court adopted the substantively identical position on procedural or. substantive legal issues. Date of last change: 25.09.2023