TrustHLT/LaCour huggingface dataset:
GR1 (Government): please let me take the floor to dissent to the more procedural aspects of the case.
GR1 (Government): I will try to stick to the points and be short and clear.
GR1 (Government): My intervention will deal with five points.
GR1 (Government): Acceptance of video footage by labor courts, inconsistency in the application of the court's case law, answers to the specific questions posed by the Grand Chamber, non-violation of Article VI of the Convention, and procedural extra limitation on margin of appreciation.
GR1 (Government): First of all, the Spanish labor courts did not base their judgment solely nor mainly upon the expert report containing 45 images of the video footage.
GR1 (Government): But even if they had done so, they would not have breached Article VIII of the Convention.
GR1 (Government): The acceptance of the video as a means of proof by the labor courts was done in accordance with the Convention because it was in the context of the labor litigation that such means of proof was taken into account.
GR1 (Government): The labor court's only aim is to conclude on the lawfulness of the dismissals.
GR1 (Government): The protection of personal data, a right larger than the right to privacy, is ensured in Spanish legislation in the frame of another effective remedy, the Data Protection Act, which has a wider scope than that of the right of privacy.
GR1 (Government): There are acts which are not included in the right to privacy as stealing in public that are nevertheless protected by data protection law.
GR1 (Government): The acceptance of the video by the labor courts was also respectful with the applicable law in Spain, namely labor regulation, Statuto de los Trabajadores, whose Article XXIII says that an employer may use monitoring and surveillance measures, which he or she deems appropriate to verify that an employee is fulfilling his or her employment duties insofar the employee and the employer respects human dignity.
GR1 (Government): The employer deployed video cameras in accordance with this article.
GR1 (Government): Secondly, Spanish Labor Procedure Act, which Article 90.2 says that evidence obtained directly
GR1 (Government): or indirectly in violation of fundamental rights will be excluded.
GR1 (Government): But what the labor judge admitted was an expert report containing 45 images extracted from the video footage because, A, she considered that there had not been a violation of any fundamental right, and B, as Article 20.3 of the labor regulations, which
GR1 (Government): I mentioned, authorizes the employer to deploy cameras in the frame of labor regulations, and no human dignity of the workers was considered to have been compromised.
GR1 (Government): And third, the case law of the Constitutional Court in Spain was also respected by national courts by meeting the triple constitutionality test.
GR1 (Government): Suitability test, there was a legitimate aim, a gross amount of theft in a short period of time.
GR1 (Government): Necessity test, in order to prove the fact it was necessary to cross-examine the images together with the tickets that the employees were elaborating to hide their unlawful behavior.
GR1 (Government): And third, proportionality test.
GR1 (Government): The video surveillance was performed only during 10 days, smaller if compared with the two weeks time in the Copca case.
GR1 (Government): And it was not the entire staff, but only employees at the cashier desks that were being controlled, differently what the lawyer said before.
GR1 (Government): Secondly, inconsistency in the application of the court's case law.
GR1 (Government): As Judge Dedoff puts it, the circumstances in Copca were similar to those of the present case.
GR1 (Government): One might say, he says, that the interference in the case of Copca was more serious because there had only been hidden cameras.
GR1 (Government): And the employee had at no stage been notified of any kind of surveillance.
GR1 (Government): Surveillance by superiors or colleagues or open video surveillance would not have had the same prospects of success in discovering a covert theft.
GR1 (Government): Also in Copca case, although the data protection law was not enforced yet, a well-established case law was binding for the judiciary in Germany regarding the need to advert previously of the existence of the cameras.
GR1 (Government): Third, I will answer now the questions posed by the Grand Chamber.
GR1 (Government): When and in which circumstances did the claimants know the existence of video footage coming from the covert cameras?
GR1 (Government): The applicants knew that cameras were going to be installed before they were set in motion.
GR1 (Government): They thought that they would only be directed to the entrances of the shop in general, but not that they would also be zoomed to the cashier desks.
GR1 (Government): The covert surveillance took place during 10 days from 15 June to 45 June 2009.
GR1 (Government): In the individual meetings that took place between 25 to 29 of June, between the representative of the workers and the legal representative of the company on the one hand, and each of the applicants on the other, they were all informed of the fact that the thefts had been videotaped.
GR1 (Government): Second question, when could the applicants and their lawyers watch the video footing for the first time?
GR1 (Government): Once they knew the existence of the video footing, according to the Spanish data protection law, the workers had the right to request the company access to the videotapes.
GR1 (Government): Apparently, they did not avail themselves of that right.
GR1 (Government): In the minutes of the oral hearing before the labor judge, document number six attached to the Lopez-Ribaldo application, dated 23 November 2009, and in the first summons and first declarations before the criminal investigation judge from 22 to 24 September 2009, it is proved that they received a copy and that they could then have requested to watch the video recordings that concern each one of them.
GR1 (Government): Third question, at which moment of the procedure before the labor courts was the expert report mentioned as approved before the labor courts of 20 January 2010 submitted to the representative of the application?
GR1 (Government): And did they benefit from the possibility of presenting observations on this point?
GR1 (Government): Also, in the minutes of the oral hearing before the labor judge, document number six attached to the Lopez-Ribaldo application, on the 23 November 2009, it is recorded that the lawyers received a full copy of that expert report.
GR1 (Government): The exchange of means of proof is made before the lawyers express their oral pleadings and conclusions.
GR1 (Government): In fact, the lawyers made pleadings to that effect as reflected in the judgment.
GR1 (Government): They also made pleadings in the higher judicial levels.
GR1 (Government): Therefore, the acceptance by the labor courts of the expert report based upon images from the video footage, together with accountancy documents as evidence in the frame of a labor proceedings on the furnace of the dismissals, did not constitute a breach of Article 8 of the Convention as no privacy for committing thefts could be expected in a place face-to-face to the public.
GR1 (Government): Although some kind of privacy can be expected in a public place, privacy right cannot be waived as a means to cover the commission of unlawful acts.
GR1 (Government): Four points.
GR1 (Government): The Spanish labor court judgment acted in full compliance with Article 6 of the Convention.
GR1 (Government): The claimants tried to reopen the whole case in breach of their procedural position as no referral was raised by them against the judgment before the Grand Chamber.
GR1 (Government): And it was only Spain who questioned the judgment as long as it concluded in a violation of Article 8.
GR1 (Government): Nevertheless, and although the judgment is final on this part, as Article 45 of the Convention, as my colleague said, I will expose at Cautelum why we consider that the conclusion of the chamber on a known violation of Article 6 was correct.
GR1 (Government): As it results from the labor judgments, the facts upon which the dismissals were declared fair derived from, I quote, the non-controversial declarations by the parties, documents on the file, the parties' contradictory witness declaration, the exam of other witnesses, the expert report, and a holistic analysis of all means of proof, which have been evaluated under the rules of common sense.
GR1 (Government): So the court relied on many other self-sufficient proofs apart from the expert report.
GR1 (Government): A, the documents of accountancy of the company showing the amount of thefts.
GR1 (Government): B, one of the applicants, Mrs. Sabolido-Presa,
GR1 (Government): recognized spontaneously the theft in a specific document in which she also signaled the rest of applicants.
GR1 (Government): C, another employee who was also union representative of the workers, Mrs. Ana Isabel Díaz-Romo,
GR1 (Government): recognized her participation on the facts and also communicated to the trade union she belonged to her resignation as representative of workers.
GR1 (Government): D, the other trade union representative of the workers, Blanca San Juan, was informed of the decision to dismiss the applicants and was present in the interview with the company's legal representative and was witness to all the labor oral hearings.
GR1 (Government): And last but not least, the labor courts also took into account the agreements with the employees, which were not signed under any kind of jurors, a proof of which is that some employees did not sign them.
GR1 (Government): The content of the agreements was a valid proof in itself of their recognition of the thefts and also the signature without express objection that the employees signed in the finiquito, which is a receipt of the sum awarded and means that the worker agreed with the motivation of the dismissal.
GR1 (Government): I would like to highlight the ground chamber that what the applicants say in paragraph 78 of their additional observation tried to mislead the judges as the explanation and the reference to document 5 sent by the applicants to the ground chamber is incomplete.
GR1 (Government): Lawyer hides willfully that after that judgment of the Catalonian Superior Court, a new oral hearing was held by the inferior labor court and that finally the labor agreement served as a proof of such recognition.
GR1 (Government): This was confirmed by the higher Catalonian labor court in the real final judgment on the issue.
GR1 (Government): All of these documents have been translated into an official language and furnished to the ground chamber.
GR1 (Government): Five and last, procedural extra limitation of the chamber's judgment.
GR1 (Government): We respectfully consider that the chamber committed a procedural extra limitation when mistaking the task of the National Labor Court, which is just to conclude on the lawfulness of the dismissals.
GR1 (Government): The consideration by the court that there has been a violation of Article 8 because the hypothetical inaction of the Spanish Agency of Data Protection first was not even raised by the applicants in that claim and secondly, does not respect the margin of appreciation of national authorities.
GR1 (Government): As this court has frequently recalled, the boundary between the state's positive and negative obligation under Article 8 does not lend itself to precise definition.
GR1 (Government): In both contexts, regard must be had to the fair balance that has to be struck between the competing interests, which may include competing private and public interests or convention rights.
GR1 (Government): And in both contexts, the state enjoys a certain margin of appreciation.
GR1 (Government): Ron Hanover, Rector of St. David's versus Greece.
GR1 (Government): It is within the margin of appreciation of Spain to determine the way to remedy possible infringements of data protection law through complaints before the Spanish Data Protection Agency.
GR1 (Government): We would like to bring here the dissenting opinion of several grand chamber judges in the Barbur-Leski versus Romania case.
GR1 (Government): One can tell, they say, but know that if the respondent government had raised this as a preliminary objection, there might have been some question as to whether, by applying to the employment courts on the basis he did, the applicant had in fact exhausted those domestic remedies that relate to the breaches alleged and which are at the same time available and sufficient.
GR1 (Government): After all, continues the judgment, the dissenting opinion, there is no material before the court to suggest that any of the three remedies identified above and in particular a complaint to the specialist data protection supervisory authority or an action for damages under law before the competing courts were bound to fail.
GR1 (Government): In this case, the applicants did not exhaust the effective internal remedy.
GR1 (Government): We ask ourselves and humbly ask the grand chamber, how is it possible to condemn a state when the court considers that even if the labor courts had excluded the video footage of the proofs, the conclusions on the validity of the dismissals would have been the same?
GR1 (Government): We therefore consider that the non-violation of Article 6 of the convention should necessarily imply the decay of the plea regarding a potential violation of Article 8.
GR1 (Government): To end, with due respect, Spain feels that the chamber judgment, while presumably pursuing summa neus, has achieved summa inuria.
GR1 (Government): At the perpetrators of thefts in the frame of a relation between private individuals whose dismissals were declared fair after a judgment issued in full compliance with the right to a fair trial have been awarded a 4,000 euro compensation each for undetermined moral damages plus costs and expenses that will have to be paid by Spain, that is to say, by each and every Spanish citizen.
GR1 (Government): It is because of all these arguments that we humbly pledge for our referral to be accepted, considering that there has been no breach of the convention.
GR1 (Government): Following the popular saying, we would finally like to ask the Grand Chamber just one thing.
GR1 (Government): Please do not let the trees prevent you from seeing the wood.
Guido Raimondi (JudgeP): Je remercie les deux partis pour leurs interventions.
Guido Raimondi (JudgeP): Et maintenant, j'invite mes collègues membres de la Grande Chambre, qui le souhaitent, à poser leurs questions aux partis.
Angelika Nußberger (Judge): Well, I would have a question to the government first.
Angelika Nußberger (Judge): In your memorial, you wrote on page eight, I quote, only if the claimants had denounced the breach of data legislation committed by the company could the Data Protection Agency have studied and protected their rights.
Angelika Nußberger (Judge): Now in your pleadings, you have explained that they could have had access to the data as collected, they could have asked for erasure, and you also said that there could have been a heavy fine against the enterprise.
Angelika Nußberger (Judge): I would like to know if there's jurisprudence that enterprises have been fined for similar violations of data protection law, and more importantly, could the applicant themselves have claimed damages under the data protection law or under civil law?
Angelika Nußberger (Judge): I don't know.
Angelika Nußberger (Judge): And in this context, a question to the applicants.
Angelika Nußberger (Judge): When the applicants learned about the existence of the recordings and the breach of the data protection law, why didn't you appeal to the Data Protection Agency?
Angelika Nußberger (Judge): And my last question, also more to the government, why did the employer not inform?
Angelika Nußberger (Judge): I understand that there was a workers council in this enterprise.
Angelika Nußberger (Judge): And so I want to know why the employer did not inform the workers council before installing the video surveillance.
Angelika Nußberger (Judge): Why didn't they inform at least them, if not the worker themselves?
Guido Raimondi (JudgeP): Judge Elósegui, please.
María Elósegui (Judge): I have some questions for the two parties about facts.
María Elósegui (Judge): I start by the applicants, but when the first question, it can be answered also for the government if they know.
María Elósegui (Judge): I would like to know the number of employees in this supermarket of Mercadona at the time when the facts occurred, the number of employees, and the exact number of cashiers, if you have this data.
María Elósegui (Judge): Well, a second question for the applicants.
María Elósegui (Judge): In your observations, you say, and now also in the pleadings, that the company Mercadona filed a criminal complaint against the applicants, although they have been prescribed.
María Elósegui (Judge): But my question here is, I would like to know, to be sure, if the company filed this criminal complaint against how many people, according to our data that you have done it, given to us, they say about 14 persons.
María Elósegui (Judge): I want to have this clear.
María Elósegui (Judge): And a third question, if the applicants were informed about the installation of cameras, at least into the areas of clients.
María Elósegui (Judge): And moreover, we have also the data that they were in the labor courts.
María Elósegui (Judge): I want to know if the facts were proved or not in the labor courts.
María Elósegui (Judge): And in the criminal process, if the minor offense of robbery or theft, although it was prescribed, if it was proved.
María Elósegui (Judge): And later, well, the last for the applicants.
María Elósegui (Judge): The fact that the applicants signed an agreement of dismissal with the employer, has it implied them to go later to the labor courts?
María Elósegui (Judge): Also, have they testified personally before labor courts?
María Elósegui (Judge): And now, the questions for the government.
María Elósegui (Judge): The first one is the same.
María Elósegui (Judge): The second, according to the jurors' observations, and also here in the hearing, you explained that the Spanish national law in Article V about personal data protection prescribes the obligation to inform workers about the installation of video surveillance.
María Elósegui (Judge): Then the question is, if this legislation is so clear, how could you explain that the domestic national courts involved in the case, they have taken as legal proof this video surveillance that was secret?
María Elósegui (Judge): Was it considered as a legal evidence?
María Elósegui (Judge): And why they apply the labor regulation, Article Number 20.3,
María Elósegui (Judge): and not so clear the law about personal data protection?
María Elósegui (Judge): Third, were the applicants given the opportunity to challenge the authenticity or veracity of the evidence and to oppose to its issue?
María Elósegui (Judge): And last one, last one for the government.
María Elósegui (Judge): I have here a draft for the organic law about data protection that they are now discussing in Parliament in Spain.
María Elósegui (Judge): And in the Article 89, they say that the workers, they have to be informed about the installation of cameras.
María Elósegui (Judge): But also, I read that it is accepted as proof.
María Elósegui (Judge): It's a draft, but I want to know.
María Elósegui (Judge): It is accepted as proof in the event of a flagrant commission of an illegal act.
María Elósegui (Judge): It can be accepted as proof if the workers, if there is a label or a ticket in the shop.
María Elósegui (Judge): I want to know this future legislation.
Guido Raimondi (JudgeP): Thank you very much. Now, Judge Kjølbro, please.
Jon Fridrik Kjølbro (Judge): They are addressed to the applicant, but of course the government is most welcome also to respond.
Jon Fridrik Kjølbro (Judge): The first question concerns Article 6, and more specifically the settlement agreement signed by the applicant when dismissed.
Jon Fridrik Kjølbro (Judge): And the applicants are arguing that the use of it violates Article 6.
Jon Fridrik Kjølbro (Judge): But I want to understand the complaint.
Jon Fridrik Kjølbro (Judge): Is the applicant arguing that this settlement agreement should never have been permitted as evidence because it was obtained under duress?
Jon Fridrik Kjølbro (Judge): Or is the applicant arguing that because of this settlement agreement, there was no access to a court because the court could not assess the merits?
Jon Fridrik Kjølbro (Judge): So these are two totally different complaints, whether it is unfair because of them unlawful obtained evidence, or whether it somehow restricted the applicants in having access to a court.
Jon Fridrik Kjølbro (Judge): That I would like to understand.
Jon Fridrik Kjølbro (Judge): I do not understand it from the written observations.
Jon Fridrik Kjølbro (Judge): My second question concerns Article 8 and goes in the same lines as Angelika Nußberger, which addresses to the government, but I address it now to the applicants.
Jon Fridrik Kjølbro (Judge): The applicants are arguing that the covered video surveillance and recordings without prior notification violated the applicant's right to respect for private life.
Jon Fridrik Kjølbro (Judge): And let's just assume for the sake of argument that the government or the Grand Chamber agrees.
Jon Fridrik Kjølbro (Judge): Let's assume that the court says that there is a violation of Article 8, they should have been notified in advance.
Jon Fridrik Kjølbro (Judge): My question to the applicants is then, does it automatically flow from that that the use of the video also violates the convention and the dismissal as such is unlawful?
Jon Fridrik Kjølbro (Judge): In other words, can there be a violation of Article 8 because of the lack of prior notification without necessarily resulting in the evidence not being permitted?
Jon Fridrik Kjølbro (Judge): In other words, could the domestic courts have redressed the violation, if any, by other means?
Jon Fridrik Kjølbro (Judge): And that is part of the same that Angelika Nußberger asked.
Jon Fridrik Kjølbro (Judge): So I would like to have your view on that.
Jon Fridrik Kjølbro (Judge): Were, then, your view the only way to redress this was to exclude the evidence and find the dismissal unlawful, or whether there would have been other ways of redressing such a violation?
Guido Raimondi (JudgeP): Thank you very much, judge Spano, please.
Robert Spano (Judge): My question goes also to the applicants, and it is along the same lines, but in a bit of a different context to the one just posed by Judge Kjølbro.
Robert Spano (Judge): I would ask the government to correct me if I'm wrong, but I understand the pleadings of the government and their understanding of the national courts case law, or judgments in this case, in particular, the tribunals, the Superior Court of Justice of Catalonia of 28 January, 2011, to suggest that indeed you accept that the employer here violated domestic data protection laws by not notifying in an adequate manner under domestic law.
Robert Spano (Judge): Okay.
Robert Spano (Judge): My question then to the applicant is so I understand your argument.
Robert Spano (Judge): The government says the violation of the data protection law cannot lead per se as such, only due to the prior notification to a violation of Article 8.
Robert Spano (Judge): Do you, is that your argument?
Robert Spano (Judge): Are you arguing in this case that there is an absolute symmetry between the violation of the data protection law and the violation of Article 8?
Robert Spano (Judge): I'm not asking about how the labor courts could have remedied.
Robert Spano (Judge): Judge Kjølbro asked that.
Robert Spano (Judge): I'm asking about the extent of your argument.
Robert Spano (Judge): If your argument is not that it is a direct violation, the two are the same, to what extent, what other elements in your view should come into play?