Case of European Court of Human Rights, October 17, 2019 (case LÓPEZ RIBALDA AND OTHERS v. SPAIN)

Defense:SPAIN
Resolution Date:October 17, 2019
SUMMARY

Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);No violation of Article 6 - Right... (see full summary)

 
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GRAND CHAMBER

CASE OF LÓPEZ RIBALDA AND OTHERS v. SPAIN

(Applications nos. 1874/13 and 8567/13)

JUDGMENT

STRASBOURG

17 October 2019

This judgment is final but it may be subject to editorial revision.

In the case of López Ribalda and Others v. Spain,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Linos-Alexandre Sicilianos, President,Guido Raimondi,Angelika Nußberger,Robert Spano,Vincent A. De Gaetano,Jon Fridrik Kjølbro,Ksenija Turković,Işıl Karakaş,Ganna Yudkivska,André Potocki,Aleš Pejchal,Faris Vehabović,Yonko Grozev,Mārtiņš Mits,Gabriele Kucsko-Stadlmayer,Lәtif Hüseynov,María Elósegui, judges,and Søren Prebensen, Deputy Grand Chamber Registrar,

Having deliberated in private on 20 June 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in two applications (nos. 1874/13 and 8567/13) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Spanish nationals, whose details are set out in the Annex (“the applicants”), on 28 December 2012 and 23 January 2013 respectively.

  2. They were represented before the Court by Mr J.A. González Espada, a lawyer practising in Barcelona. The Spanish Government (“the Government”) were represented by their Agent, Mr R.A. León Cavero, State Attorney.

  3. The applicants submitted that the decision by which their employer had dismissed them had been based on video-surveillance implemented in breach of their right to respect for their private life, as guaranteed by Article 8 of the Convention, and that the domestic courts had failed in their obligation to ensure the effective protection of that right. Under Article 6 of the Convention, they complained about the admission in evidence during the proceedings of the recordings obtained by means of the video-surveillance. Under the same provision, the third, fourth and fifth applicants further complained of the acceptance by the domestic courts of the settlement agreements that they had signed with their employer.

  4. The applications were allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). By a judgment of 9 January 2018 a Chamber of that Section, composed of Helena Jäderblom, President, Luis López Guerra, Dmitry Dedov, Pere Pastor Vilanova, Alena Poláčková, Georgios A. Serghides, Jolien Schukking, judges, and Stephen Phillips, Section Registrar, decided to join the applications, declared them partly admissible and found a violation of Article 8 of the Convention and no violation of Article 6. The dissenting opinion of Judge Dedov was appended to the Chamber judgment.

  5. On 27 March 2018, under Article 43 of the Convention, the Government requested the referral of the case to the Grand Chamber. On 28 May 2018 the panel of the Grand Chamber granted that request.

  6. The composition of the Grand Chamber was determined in accordance with Article 26 §§ 4 and 5 of the Convention and Rule 24.

  7. The applicants and the Government each filed further written observations (Rule 59 § 1). The European Trade Union Confederation (ETUC), which had been granted leave to submit written comments in the Chamber proceedings (Article 36 § 2 of the Convention and Rule 44 § 3), had submitted such comments before the Chamber but did not make any additional comments before the Grand Chamber.

  8. A hearing took place in public in the Human Rights Building, Strasbourg, on 28 November 2018 (Rule 59 § 3).

    There appeared before the Court:

    (a) for the GovernmentMrR.A. León Cavero,Agent,MrA. Brezmes Martínez de Villarreal,Co-Agent,MrA. Ramos de Molins Sainz de Baranda,MrM. Montobbio, Ambassador, Permanent Representative of the Kingdom of Spain to the Council of Europe,MrA. Antón, Adviser, Permanent Representation of the Kingdom of Spain to the Council of Europe, Advisers;

    (b) for the applicantsMrJ.A. González Espada,Counsel,MsÀ. Ortiz López,Adviser.

    The Court heard addresses by Mr González Espada, Mr León Cavero and Mr Brezmes Martínez de Villarreal and their replies to questions from judges.

  9. On 23 January 2019 the Court was made aware of the death of the second applicant. Her husband expressed the wish to continue the proceedings before the Court in her stead and gave authority to Mr J.A. González Espada to represent him.

    THE FACTS

  10. At the time of the relevant events, the applicants were all working in a supermarket of the M. chain situated in Sant Celoni (Barcelona province). The first three applicants were cashiers, while the fourth and fifth applicants were sales assistants behind a counter.

  11. From March 2009 onwards the supermarket’s manager noticed some inconsistencies between the stock level and the sales figures. In the following months he identified losses of 7,780 euros (EUR) in February, EUR 17,971 in March, EUR 13,936 in April, EUR 18,009 in May and EUR 24,614 in June.

  12. In the context of an internal investigation to shed light on the losses, on 15 June 2009 the manager installed CCTV cameras, some visible and others hidden. The visible cameras were directed towards the entrances and exits of the supermarket. The hidden cameras were placed at a certain height and directed towards the checkout counters. Three tills were covered by the range of each camera, including the areas in front of and behind the counters. The exact number of tills being monitored was not stated by the parties; the documents in the file show that at least four tills were filmed.

  13. During a meeting the supermarket’s staff were informed of the installation of the visible cameras on account of the management’s suspicions about thefts. Neither the staff nor the staff committee were informed of the hidden cameras. Beforehand, in 2007, the company had notified the Spanish Data Protection Agency that it intended to install CCTV cameras in its shops. The Agency had pointed out the obligations to provide information under the legislation on personal data protection. A sign indicating the presence of CCTV cameras had been installed in the shop where the applicants worked but the parties did not indicate its location or precise content.

  14. On 25 June 2009 the management of the supermarket informed the union representative that the footage recorded by the hidden cameras had revealed thefts of goods at the tills by a number of employees. The representative watched the recordings.

  15. On 25 and 29 June 2009 all the workers suspected of theft were called to individual interviews. Fourteen employees were dismissed, including the five applicants. Prior to each interview, the applicants and other employees concerned had a meeting with the union representative, who told them she had watched the video recordings. During the meeting a number of employees admitted that they had been involved in the thefts with other colleagues.

  16. During the individual interviews, which were attended by the manager, the legal representative of the company M. and the union representative, the employees concerned were notified of their dismissal on disciplinary grounds with immediate effect. The dismissal letters given to the applicants indicated that the hidden CCTV cameras had filmed them, on several occasions between 15 and 18 June 2009, helping customers or other supermarket employees to steal goods and stealing goods themselves. Among the facts, the letters stated that the first three applicants, who worked at the tills, had allowed customers and colleagues to go to the cash till and leave the shop with goods they had not paid for. They added that those applicants had scanned items presented at the checkout by customers or colleagues and had then cancelled the purchases, with the result that the goods had not been paid for. They explained that a comparison between the goods actually taken away by customers and the sales receipts had made it possible to prove this. As to the fourth and fifth applicants, the cameras had reportedly caught them stealing goods with the help of their colleagues at the tills. According to the employer, these acts constituted a serious breach of the obligations of good faith and loyalty required in the employment relationship and justified the termination of the contract with immediate effect.

  17. In addition, the third, fourth and fifth applicants signed an agreement entitled “settlement agreement” (acuerdo transaccional) with the company’s legal representative. These agreements were co-signed by the union representative. Under the agreements, the two parties confirmed the termination of the employment contract by the employer and declared that they had reached an agreement in order to avoid uncertainty as to any future legal dispute. The applicants acknowledged the thefts of the goods, as set out in the dismissal letters, and endorsed the employer’s decision to terminate their employment contracts. The company undertook not to bring criminal proceedings against the employees. A final settlement of outstanding accounts was attached to the agreement and the parties declared that they waived any claims against each other under the employment contract.

  18. At no time before their dismissal, either during the meeting with the union representative or during their individual interviews, were the applicants able to view the recordings from the CCTV cameras.

  19. On 22 July 2009 the first applicant brought proceedings for unfair dismissal before the Granollers Employment Tribunal no. 1 (“the Employment Tribunal”). The same day the other four applicants brought similar proceedings before the Employment Tribunal.

  20. The applicants objected in particular to the use of the covert video-surveillance, arguing that it had breached their right to protection of their privacy. They thus requested that any recordings obtained by such means should not be admitted in evidence in the proceedings.

  21. As regards the proceedings brought by the third, fourth and fifth applicants, the employer...

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