In its decision of 23 July 2023, the Ljubljana Higher Court upheld the lower court’s decision that the recordings from surveillance cameras should not be excluded as evidence in criminal proceedings, even if the footage was recorded in potential violation of the then-Slovenian Personal Data Protection Act (ZVOP-1).
The case concerned the use of video surveillance recordings covering public and commercial spaces including public roads, courtyards of commercial buildings as well as the area in front of an ATM, as evidence in a criminal case. The defendant argued that footage of video surveillance should be dismissed as evidence because the video surveillance was not accompanied by an adequate notice, in violation of the Slovenian Data Protection Act in force at the time.
Balancing the right to privacy against other rights
In deciding whether to admit into evidence the footage of surveillance cameras obtained in violation of the right to privacy, the Higher Court weighed the significance and seriousness of the violation of the right to privacy, on the one hand, against the rights of the injured party affected by the crime, on the other. The Higher Court relied on the concept of expected privacy as developed in the practice of the Supreme Court and stressed that an individual cannot expect privacy in a public space in its absolute sense. In this specific case, the right to privacy did not outweigh the rights of the injured party.
The concept of expected privacy
The Higher Court referred to the Supreme Court judgment of 22 July 2021 providing certain criteria for determining whether the individual has a reasonable expectation of privacy: (i) the degree of intimacy of the invaded sphere of privacy, (ii) the characteristics of the public space under video-surveillance, (iii) whether the cameras were visible or disguised, (iv) the scope and degree of video surveillance compared to its normal and expected purpose. The nature and gravity of the violation of the then-Slovenian Personal Data Protection Act may, according to the court, impact the assessment of whether the individual could have perceived the space as more private.
The Higher Court applied the four criteria and found that in the present case the data subject could not have reasonable expectation of privacy. Video surveillance did not interfere with the more intimate spheres of individual privacy, because cameras were recording the events in the public space and in the courtyards of commercial companies. The cameras were installed and used for their usual and normal purpose – i.e. to ensure the safety of people and property. Furthermore, as most companies have a video surveillance system installed precisely to safeguard property interests, anyone in the vicinity of such areas can expect to be subject to video surveillance or recording.
The Higher Court found that the possible lack of notice of video surveillance, even if possibly infringing the Slovenian Personal Data Protection Act, was not of such a serious nature as to reasonably cause an expectation among persons located near industrial zones, commercial companies, public roads, or ATMs, that their behaviour would not be recorded.
When other rights should take precedence over the right to privacy
In conclusion, even if video surveillance would be in this case contrary to the Slovenian Personal Data Protection Act (ZVOP-1), the rights of the injured party to its private property should, according to the Higher Court, take precedence over the data subject’s right to privacy. The Higher Court ends the decision with a remark that it is “it cannot be sustained that at the time of the commission of a criminal act, the right of privacy of the offender should outweigh the potential victims’ right to personal safety and the protection of their private property, since in such a case, the potential offenders would be able to commit crimes unhindered”. From the judgment taken as a whole one may infer that each case requires analysis in light of its specific circumstances.
Comment
The decision of the Higher Court seems to suggest that even if there is a reasonable expectation of privacy, when balancing the right of privacy against certain other rights such as the right to life and safety, the latter may often take precedence.
