KÖPKE v. GERMANY
Inadmissible
Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Ms Karin Köpke, is a German national who was born in 1953 and lives in Feldberg. She was represented before the Court by Mr K. Nicolai, a lawyer practising in Neustrelitz. The applicant started working as a shop assistant in 1968. From 1 August 1991 until her dismissal on 5 November 2002 she was employed as a shop assistant and cashier in a supermarket in Feldberg. She has been unemployed since then. The applicant's employer noted in September 2002 that there were irregularities concerning the accounts in the drinks department of that supermarket, in that the sum of the till receipts for empty deposit bottles which had been printed out exceeded the total value of empty deposit bottles received by the supermarket. It suspected the applicant and another employee of having manipulated the accounts. Between 7 October 2002 and 19 October 2002 the applicant's employer, with the help of a detective agency, carried out covert video surveillance of the supermarket's drinks department. The camera covered the area behind the cash desk including the till, the cashier and the area immediately surrounding the cash desk. The detective agency made a video and examined the data obtained. It drew up a written report and produced several photos from the recording, which it sent to the applicant's employer together with two copies of the video (one concerning the applicant and one concerning the other employee monitored). On 5 November 2002 the applicant's employer dismissed the applicant without notice for theft. The applicant was accused of having manipulated the accounts in the drinks department of the supermarket and of having taken money (some 100 euros during the period in which she had been filmed) from the tills for herself which she had hidden in her clothes. On 14 November 2002 the applicant, who was represented by counsel throughout the proceedings, brought an action in the Neubrandenburg Labour Court against her employer, requesting that the court find her dismissal invalid. She further claimed compensation for non-pecuniary damage she had suffered as a result of the covert video surveillance and requested to be given the videotapes, including all copies made thereof. She was granted legal aid for these proceedings. The applicant contested having manipulated the tills or having stolen money and submitted that she had only put tips she had received from customers into her pockets. In accordance with the supermarket's practice, she had later put these tips into a separate till where all tips received by supermarket staff were collected. She further objected to the use of the covert video surveillance, arguing that this surveillance had breached her right to protection of her privacy. On 29 August 2003 the Neubrandenburg Labour Court dismissed the applicant's action, having held a hearing in which it heard as witnesses the three staff members of the defendant party involved in the applicant's video surveillance and dismissal and having watched the video tapes submitted by the defendant party. The Labour Court found that the defendant party had been entitled to dismiss the applicant without notice. It considered that the defendant party had been authorised to observe the applicant by means of covert video surveillance and to use the recording obtained thereby. The losses discovered in the drinks department during stocktaking and the irregularities between the amount of money paid out for returned empty deposit bottles and the value of the full bottles sold in the market during the applicant's working time had constituted sufficient grounds for the defendant party to order her surveillance. The defendant party's property rights had been seriously interfered with. In such circumstances, the video observation of an employee was lawful, as had been confirmed by the Federal Labour Court in its judgment of 27 March 2003 (file no. 2 AZR 51/02, see 'Relevant domestic law and practice' below). In case of the covert video surveillance of an employee on suspicion of theft, the employer's fundamental right to respect for his property rights had to be weighed against the employee's fundamental right to privacy vis-à-vis third persons, including his employer or his colleagues. Special circumstances were necessary to justify an interference with the employee's right to privacy, which had to be proportionate. Weighing these competing interests in the present case, the Labour Court found that the defendant party had been entitled to put the applicant under covert video surveillance. Having regard to the organisation of work in the drinks department of the supermarket, there were no other means to protect the defendant party's property rights. The surveillance had not been random, but carried out following suspicions of theft against two employees. The video records obtained had been used by the management staff of the defendant party and had been submitted to the court in order to justify the applicant's dismissal without notice. There was no risk of the records being used in a different manner. Therefore, the applicant neither had a right to non-pecuniary damage nor to be given the video tapes. The Labour Court, having regard to the evidence before it including the information obtained by examining the video tapes in question, found that the defendant party had had sufficient grounds to conclude that the applicant had repeatedly committed offences against its property during the relevant period. The applicant had not proven that the money she had undeniably taken from the till had been tips. In any event, it had not been necessary to hear the witnesses named by the applicant to prove that the money concerned had been tips because such tips were, in any event, also the property of the defendant party according to the work regulations in place. On 18 May 2004 the Mecklenburg Western-Pomerania Labour Court of Appeal, which had granted the applicant legal aid, dismissed the applicant's appeal and refused to grant her leave to appeal on points of law. The Labour Court of Appeal, referring to the case-law of the Federal Labour Court (judgment of 27 March 2003, file no. 2 AZR 51/02, see 'Relevant domestic law and practice' below), endorsed the Labour Court's finding that the defendant party had been authorised to carry out the covert video surveillance of the cash desk area of the drinks department. Her dismissal without notice had been justified as, following the examination of the videotapes in the proceedings, the applicant had stopped contesting that she had taken money from the till on several occasions. The covert video surveillance of the applicant had complied with section 6b of the Federal Data Protection Act (Bundesdatenschutzgesetz, see 'Relevant domestic law and practice' below), which transferred Directive 95/46/EG into domestic law. The workplace of a cashier behind the cash desk was not an area in the supermarket accessible to the public. Therefore, video surveillance thereof did not have to be made visible under section 6b § 2 of that Act. In any event, a cashier whose surveillance had been justified could not rely on the fact that the video surveillance had also covered customers who were standing at the cash desk and in respect of whom the covert video surveillance had not been permitted. The Labour Court of Appeal further considered that it had not been necessary to take further evidence in the proceedings, in particular to play the videotapes, after the applicant had stopped contesting having taken money from the till and having put it in her pockets on several occasions. As this fact alone justified the applicant's dismissal without notice, the use of the impugned videotapes as evidence in the proceedings had not been necessary. Even assuming that the defendant party had illegally obtained knowledge of the fact that the applicant had taken money from the till and even if this evidence were excluded, the defendant party had not been prevented from alleging this issue and the applicant had been obliged to reply truthfully. Moreover, it had not been necessary to take further evidence in order to verify whether the applicant had taken only tips from the till which she had later put into another till designated for tips. An employer could not be expected to further employ a cashier who put money from the till into her pockets without keeping any records on where the money was to be found. The witnesses named by the applicant to prove that there had been a separate till for tips and that the applicant had put money into that till would not be sufficient to prove that all the money taken from the till in the drinks department had been tips and had been put into the till designated for tips. The Labour Court of Appeal finally found that, at least at that stage of the proceedings, the applicant could not ask for the videotapes to be erased. The defendant party had a right to keep the videotapes at least until a final decision was given in the court proceedings brought by the applicant and until the admissibility and necessity of the tapes as evidence was no longer at issue (compare section 6b § 5 of the Federal Data Protection Act). By a decision of 14 December 2004 the Federal Labour Court dismissed the applicant's complaint about the refusal of the Labour Court of Appeal to grant her leave to appeal. It further dismissed the applicant's request for legal aid as her complaint had not had reasonable prospects of success. The Federal Labour Court found, in particular, that the Labour Court of Appeal had not diverged from the Federal Labour Court's case-law. In any event, the Labour Court of Appeal had left open whether the video surveillance of the applicant had been lawful and whether the evidence obtained thereby should have been used in the proceedings before the labour courts. It had instead based its judgment on facts uncontested between the parties. As it had considered the applicant's dismissal lawful, it had also considered her claim for damages ill-founded. The lawfulness of the video surveillance had therefore been irrelevant to the outcome of the proceedings. On 31 January 2005 the applicant lodged a constitutional complaint with the Federal Constitutional Court. She argued, in particular, that her right to privacy (allgemeines Persönlichkeitsrecht) had been breached by the unlawful covert video surveillance, by the processing of the data obtained thereby and by their use in the proceedings before the labour courts, which had refused to order the destruction of the video recording. Moreover, she submitted that her right to a fair trial and to be heard had been violated in that the labour courts had failed to take relevant evidence. She further submitted that the Federal Labour Court's refusal to grant her legal aid had breached her right of equal access to court. On 28 June 2006 the Federal Constitutional Court declined to consider the applicant's constitutional complaint and dismissed the applicant's request to be granted legal aid (file no. 1 BvR 379/05). It found that the applicant's complaint had no prospects of success as there was nothing to indicate that her fundamental rights had been violated by the decisions of the labour courts. Provisions aimed at protecting individuals against infringements of their right to privacy as a result of the way in which their personal data are handled are contained in the Federal Data Protection Act. Changes to that Act entered into force in 2001 in order to implement Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Section 6b of the Federal Data Protection Act contains rules on the monitoring of publicly accessible areas with optic-electronic devices. Such video surveillance is lawful only in so far as it is necessary, in particular, to pursue legitimate aims for specifically defined purposes and if there are no indications of overriding the legitimate interests of the data subject (section 6b § 1 no. 3). Suitable measures shall be taken to make it visible that the area is being monitored and to identify the controller (section 6b § 2). The data shall be erased as soon as they are no longer needed to achieve the purpose or if further storage would conflict with the legitimate interests of the data subject (section 6b § 5). On 1 September 2009 a new section 32 of the Federal Data Protection Act entered into force. It codifies (see judgment of the Berlin Labour Court of 18 February 2010, file no. 38 Ca 12879/09)) the previously developed case-law of the Federal Labour Court on video surveillance at the workplace (see below). Under paragraph 1 of section 32, an employee's personal data may be collected, processed or used for employment-related purposes where necessary for decisions regarding hiring or, after hiring, for carrying out or terminating the employment contract. Employees' personal data may be collected, processed or used to investigate criminal offences only under the following circumstances: if there is a documented, factual reason to believe that the data subject has committed a criminal offence in the course of his work; if the collection, processing or use of such data is necessary to investigate the criminal offence; if the employee does not have an overriding legitimate interest in ruling out the possibility of the collection, processing or use of such data, and, in particular, if the type and extent are not disproportionate to the aim pursued. On 27 March 2003 the Federal Labour Court rendered a leading judgment on the lawfulness of covert video surveillance in the workplace (file no. 2 AZR 51/02). The Federal Labour Court, upholding the judgment rendered by the Schleswig-Holstein Labour Court of Appeal on 4 December 2001 (file no. 1 Sa 392 b/01), found that the covert video surveillance of an employee by his employer interfered with the employee's fundamental right to privacy as guaranteed by Article 2 § 1, read in conjunction with Article 1, of the Basic Law, which also had to be respected in the relationship between private persons, including employment relations. This right had to be weighed against the employer's interest in securing evidence for his claim, having regard to the necessity of an effective judicial system required by the rule of law. However, such an interference with the employee's right to privacy was justified and did not entail an exclusion of the evidence obtained thereby in subsequent court proceedings if there was a substantiated suspicion that the employee had committed an offence or was guilty of other serious misconduct towards his employer, if less intrusive means to examine the suspicion had been exhausted, if the video surveillance was, in practice, the only means which remained to verify the suspicion and if it was not as a whole disproportionate. The Federal Labour Court confirmed this judgment in several subsequent decisions (see the decision of the Federal Labour Court of 29 June 2004, file no. 1 ABR 21/03; decision of 14 December 2004, file no. 1 ABR 34/03; and decision of 26 August 2008, file no. 1 ABR 16/07).