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The European Court of Human Rights (ECHR) rectified on Thursday the decision of the Chamber of that same court pronounced in January 2018 and endorsed Spain in the case of the five employees of the Mercadona chain that were d after being filmed with a camera hidden when they stole .
If the previous sentence concluded that the Spanish courts did not reach a fair balance between the right to privacy and property and condemned Spain for not protecting the privacy of the plaintiffs, now the 17 judges that make up the Grand Chamber - the highest instance of the ECHR- have failed in the opposite way.
There is no recourse against the ruling, so Spain will not have to compensate the five plaintiffs - one of them deceased - living in the Barcelona towns of Sant Celoni and Sant Pere de Vilamajor, with 4,000 euros for moral damages and around 500 for fees.
Thus, the ECHR considers that "the courts have clearly identified the different interests at stake" and sees Barbulescu c. Romania , on surveillance of an employee's email account, on the subject of video surveillance.
On that occasion it was stipulated that "surveillance be accompanied by adequate and sufficient guarantees against abuse ."
The new ruling, which was approved by 14 votes against 3 , concludes that Spain "did not exceed its margin of appreciation", so it did not violate the right to privacy contained in Article 8 of the European Convention on Human Rights.
The ruling affects the degree of privacy that an employee expects based on the workplace: higher in bathrooms and changing rooms, where "a total ban can be justified , " and strong in offices.
But, "she is manifestly educated in places visible or accessible to coworkers or the general public," as is the case of the cashier area in a supermarket.
Underlines the sentence that the surveillance did not last more than ten days and the recordings were seen by a small number of people, so "the interference in the privacy of the plaintiffs did not have a high degree of severity."
It adds the ruling that the plaintiffs could have resorted to the Data Protection Agency or file a lawsuit in court for their rights under the Law on data protection, and "however they did not use it ."
The non-violation by Spain of the right to a fair trial was unanimously supported by the 17 judges of the Grand Chamber.
Dissenting opinion
Judges Vincent de Gaetano (Malta), Gana Yudkivska (Ukraine) and Yonko Grozev (Bulgaria) made a dissenting opinion on the issue of privacy in which they defend Sala's ruling.
" We cannot allow individuals to do justice on their own and leave without sufficient protection the right to respect for private life in the face of these new challenges," they say.
Isabel López Ribalda, María Ángeles Gancedo Giménez (deceased during the process), María del Carmen Ramos Busquets, Pilar Saborido Apresa and Carmen Isabel Pozo Barroso were informed in February 2009 of stock losses of up to 24,614 euros per month .
On June 15, 2009 surveillance cameras were installed to control the entrance and exit of the premises, with the knowledge of the employees, and other hidden ones to discover the possible robberies of the employees in the area of the boxes.
According to the secret cameras, the cashiers scanned the products of the baskets and then canceled them , and "allowed customers and colleagues to leave the store with products for which they had not paid."
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