Information Note on the Court’s case-law 231

July 2019

Gorlov and Others v. Russia - 27057/06, 56443/09 and 25147/14

Judgment 2.7.2019 [Section III]

Article 8

Article 8-1

Respect for private life

Domestic law lacking safeguards against abuse with respect to permanent video surveillance of detainees in their cells: violation

Facts – When confined to their cells, the applicant detainees remained under constant sur veillance by prison guards via a closed-circuit television camera (CCTV). CCTV camera monitoring was routinely carried out by female officers.

Law – Article 8: The permanent video surveillance constituted an interference with the applicants’ right to respe ct for their private life.

The relevant legislation set forth a general rule enabling the administrations of penal institutions and pre-trial detention centres to have recourse to video surveillance. However, they did not specify whether both the common pa rts and residential areas should be subject to surveillance; at which time of the day it should be operational; the conditions under which it should be used and for how long at a time; the applicable procedures, and such like. The only obligation was to in form convicts, obtaining their signature as acknowledgment, of the use of the CCTV cameras. The relevant regulations did not set out any specific rules governing the conditions in which the impugned measure could be applied and revoked, the duration or the procedures for review.

In so far as post-conviction penal institutions were concerned, the relevant provisions did not specify whether the obtaining of information about convicts’ conduct was limited to monitoring by CCTV cameras, or whether that informa tion was recorded and kept, and, if so, what the applicable safeguards and rules were governing the circumstances in which such data could be collected, the duration of their storage, the ground for their use, and the circumstances in which they could be d estroyed. The technical specifications provided for the possibility of keeping the recordings from a CCTV system for a period of thirty days.

Unlike in the decision in Van der Graaf v. the Netherlands , the applicants’ placement under permanent video surve illance had not been based on an individual decision providing reasons which would have justified the measure in question in the light of the legitimate aims pursued; the measure had not been limited in time, and the administrations of the relevant institu tions had not been under an obligation to review regularly (or at all) the well-foundedness of that measure. Indeed, there was no basis in national law for the adoption of such individual decisions.

In such circumstances, whilst the Court was prepared to accept that the contested measure had some basis in national law, it was not convinced that the existing legal framework was compatible with the “quality of law” requirement. Whilst vesting in the adm inistrations of pre-trial detention centres and penal institutions the right to use video surveillance, it did not define with sufficient clarity the scope of those powers and the manner of their exercise so as to afford an individual adequate protection a gainst arbitrariness. In fact, as interpreted by the domestic courts, the national legal framework vested in the administrations of pre-trial detention centres and penal institutions an unrestricted power to place every individual in pre-trial or post-conv iction detention under permanent, that is day and night, video surveillance, unconditionally, in any area of the institution, including cells, for an indefinite period of time, with no periodic reviews. As it stood, the national law offered virtually no sa feguards against abuse by State officials.

Although the Court was prepared to accept that it might be necessary to monitor certain areas of pre-trial and penal institutions, or certain detainees on a permanent basis, including by using a CCTV system, it fo und that the existing legal framework could not be regarded as being sufficiently clear, precise and detailed to have afforded appropriate protection against arbitrary interference by the authorities with the applicants’ right to respect for their private life.

The measure complained of had therefore not been “in accordance with the law”. Accordingly, there was no need to examine whether it pursued any of the legitimate aims and was “necessary in a democratic society”, being proportionate to those aims. In particular, the Court left open the question of whether the fact that the permanent video surveillance had been carried out by female operators of CCTV cameras was compatible with the requirements of Article 8 § 2, as, in its view, this was an element of t he proportionality of the alleged interference.

Conclusion : violation (unanimously).

The Court also found, unanimously, a violation of Article 13 because the domestic law, as interpreted by the courts, did not presuppose any balancing exercise or enable an individual to obtain a judicial review of the proportionality of his or her placement under permanent video surveillance to the vested interests in securing his or her privacy.

Article 41: Finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damage.

(See Van der Graaf v. the Netherlands (dec.), 8704/03, 1 June 2004, Information Note 65 ; see also S . and Marper v. the United Kingdom [GC], 30562/04 and 30566/04, 4 December 2008, Information Note 114 ; and M.M. v. the United Kingdom, 24029/07, 13 November 2012, Information Note 157 ; as well as the Factsheet on Detention conditions and treatment of prisoners )

© Council of Europe/European Court of Human Rights T his summary by the Registry does not bind the Court.

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