PARTLY DISSENTING OPINION OF JUDGE POLÁČKOVÁ 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 Antović and Mirković 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 Antović and Mirković 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-Bojić 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.

ANNEX

No.

Application no.

Applicant name

date of birth

place of residence

1874/13

Isabel LÓPEZ RIBALDA

03/08/1963

Sant Celoni

8567/13

María Ángeles GANCEDO GIMÉNEZ

14/03/1967

Sant Celoni

8567/13

María Del Carmen RAMOS BUSQUETS

11/11/1969

Sant Celoni

8567/13

Pilar SABORIDO APRESA

15/09/1974

Sant Celoni

8567/13

Carmen Isabel POZO BARROSO

20/05/1974

Sant Pere de Vilamajor

[1] . Ibid ., legal argument no. 5.