CASE OF ANTOVIĆ AND MIRKOVIĆ v. MONTENEGRO
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
5. The applicants were born in 1969 and 1961 respectively and live in Podgorica. 6. On 1 February 2011 the Dean of the School of Mathematics of the University of Montenegro (Prirodno-matematički fakultet), at a session of the School’s council, informed the professors teaching there, including the applicants, that “video surveillance has been introduced” (da je uveden video nadzor) and that it was in the auditoriums where classes were held. 7. On 24 February 2011 the Dean issued a decision introducing video surveillance in seven amphitheatres and in front of the Dean’s Office (ispred dekanata). The decision specified that the aim of the measure was to ensure the safety of property and people, including students, and the surveillance of teaching (praćenje izvršavanja nastavnih aktivnosti). The decision stated that access to the data that was collected was protected by codes which were known only to the Dean. The data were to be stored for a year. 8. On 14 March 2011 the applicants complained to the Personal Data Protection Agency (Agencija za zaštitu ličnih podataka, “the Agency”) about the video surveillance and the collection of data on them without their consent. They relied on the Personal Data Protection Act (see paragraphs 2427 below).The applicants submitted, in particular, that the amphitheatre where they taught was locked both before and after the classes, that the only property there was fixed desks and chairs and a blackboard, that they knew of no reason to fear for anybody’s safety and that, in any event, there were other methods for protecting people and property and monitoring classes. They requested that the cameras be removed and the data erased. 9. On 21 March 2011 two Agency inspectors issued a report (zapisnik) after visiting the School of Mathematics, stating that the video surveillance was in accordance with the Personal Data Protection Act. According to them, there had been cases of destruction of university property, the bringing in of animals, drink and tobacco, and the presence of people who were not students. They also noted that the cameras provided “a picture from a distance without clear resolution, that is people’s features [could not] be easily recognised”, that they could not zoom in and out and did not record any audio (ne reprodukuju audio zapis). While the decision on introducing video surveillance had provided that data would be stored for a year, the servers’ capacity was such that the data was stored for thirty days and then automatically erased by new recordings. The inspectors also noted that information on a “plan to introduce video surveillance” (planiranje uvođenja video nadzora) had been given at a session of the School Council on 1 February 2011. 10. On 22 March 2011 the applicants filed an objection to the report, submitting, inter alia, that they were not aware of any of the alleged incidents and that, in any event, it was unclear how such cameras could ensure the safety of people and property. They agreed that cameras over the entrances and exits from the university building might perhaps be an adequate form of ensuring such security. They also submitted that employees had not been “notified in writing on the introduction of video surveillance before it started” (nijesu bili obavješteni o uvođenju video nadzora u pisanom obliku prije početka vršenja istog). Notably, the decision had been issued on 24 February 2011 whereas surveillance had commenced a few weeks before. They did not specify when exactly but referred to the minutes of the session of 1 February 2011 (see paragraph 6 above). 11. On 28 April 2011, after the applicants’ objection to the report, the Agency’s Council (Savjet Agencije za zaštitu ličnih podataka) issued a decision (rješenje) ordering the School of Mathematics to remove the cameras from the auditoriums within fifteen days as the video surveillance was not in accordance with the Personal Data Protection Act, notably sections 10, 35 and 36 (see paragraphs 24, and 26-27 below). In particular, the Council held that the reasons for the introduction of video surveillance provided for by section 36 had not been met, given that there was no evidence that there was any danger to the safety of people and property in the auditoriums, still less to confidential data, and that the surveillance of teaching was not among the legitimate grounds for video surveillance. None of the parties initiated an administrative dispute in court against that decision. 12. On 25 January 2012 the School of Mathematics was served with the Agency Council’s decision of 28 April 2011. The cameras were removed by 27 January 2012 at the latest. It appears that the data that had been collected was also erased on an unspecified date. 13. On 19 January 2012 the applicants brought a compensation claim against the University of Montenegro, the Personal Data Protection Agency and the State of Montenegro, for a violation of their right to a private life, notably by the unauthorised collection and processing of data on them. They submitted in particular that such an interference with their private lives, without any possibility to control that process, was not provided for by any piece of legislation and that therefore it had not been in accordance with the law, within the meaning of Article 8 § 2 of the Convention. They also maintained that it had not pursued any legitimate aim and had not been necessary in a democratic society. They relied on the relevant provisions of the Personal Data Protection Act, Article 8 of the Convention and the relevant case-law of the Court. 14. On 27 December 2012 the Court of First Instance (Osnovni sud) in Podgorica ruled against the applicants. The court found that the notion of private life certainly included activities in the business and professional spheres. It also held, however, that the university was a public institution performing activities of public interest, teaching being one of them (poziv redovnog profesora [je] takođe javan), and that it was thus not possible for video surveillance of the auditoriums as public places to violate the applicants’ right to respect for their private life. It was a working area, just like a courtroom or parliament, where professors were never alone, and therefore they could not invoke any right to privacy that could be violated. The data that had been collected could thereby also not be considered as personal data. The university’s failure to remove the cameras immediately had been unauthorised, but it could not be classed as an interference with the applicants’ private life and was therefore irrelevant. The court further held that such a conclusion was in accordance with the Court’s case-law given that the monitoring of actions taking place in public was not an interference with a person’s private life when those means just recorded (bilježi) what others could see if they happened to be in the same place at the same time. The court also held that the monitoring of the actions of an individual in a public place by the use of photographic equipment which just instantaneously recorded visual data did not give rise to an interference with that individual’s private life, which could arise once any footage of such material became publicly available. It concluded that the installation and use of video surveillance and the collection of data thereby had not violated the applicants’ right to privacy (pravo na privatnost) and had therefore not caused them any mental anguish. During the proceedings one of the witnesses stated that there had been cases of theft and of damage to the interior of the building and that on one occasion five laptops had disappeared from a laboratory. Those events had led to the hiring of a private security agency two or three years earlier. According to the witness, the police had suggested installing video surveillance equipment on the School’s premises. The court, for its part, did not deal with those issues. 15. On 31 December 2012 the applicants appealed. They relied, inter alia, on Article 8 of the Convention. They maintained, in particular, that the interference with their right to respect for their private lives had not been in accordance with any law and had therefore been contrary to Article 8 § 2 of the Convention. It had also not been necessary in a democratic society. Furthermore, the Court of First Instance had not relied on any legal provision in ruling against them and had failed to assess their arguments. 16. On 17 July 2013 the High Court (Viši sud) in Podgorica upheld the first-instance judgment, endorsing its reasons in substance. The High Court held in particular that the applicants had not proved that their right to privacy had been violated and found that the first-instance court had “sufficiently related the Court’s case-law to the case at issue (dao jasan osvrt na odnos prakse Evropskog suda za ljudska prava i konkretnog slučaja) ... The court considered the [applicants’] other arguments and found that they did not justify ruling otherwise in the present case...”. 17. The applicants did not file a constitutional appeal.