Czech Republic, Supreme Administrative Court, 20 March 2013 1 AS 113/2012-59

Identification of the case

• Respect for private and family life (art. 7 CFREU)

• Paragraph 3(3), Law No 101/2000 Sb. on the Protection of Personal Data and the Amendment of Various Laws, implementing Directive 95/46
• Paragraph 5(2)(e), Law No 101/2000 Sb. on the Protection of Personal Data and the Amendment of Various Laws, implementing Directive 95/46
• Paragraph 11(1), Law No 101/2000 Sb. on the Protection of Personal Data and the Amendment of Various Laws, implementing Directive 95/46
• Paragraph 16, Law No 101/2000 Sb. on the Protection of Personal Data and the Amendment of Various Laws, implementing Directive 95/46
• Paragraph 44(2), Law No 101/2000 Sb. on the Protection of Personal Data and the Amendment of Various Laws, implementing Directive 95/46
• Paragraph 89(2), Law No 141/1961 Sb. on Judicial Criminal Proceedings

• Recitals 10, 12, 14-16 and Articles 2, 3, 7, 11, 13(1) and 18(1) Directive 95/46/EC

Summary of the case

The Applicant, his family, and their property have for several years been subjected to physical attacks. Thus, the Applicant installed a fixed-mount, continuous loop camera system on the house belonging to his wife. The camera recorded the grounds immediately adjacent to the entrance of this house, a public street and a portion of the buildings across. On the night of October 6, 2007, one of the windows of the house was broken by rocks fired from a slingshot. The Applicant submitted footage of the incident to the police, which detained two suspects. One suspect subsequently submitted a claim to the Personal Data Protection Authority (Úřad pro ochranu osobních údajů) (the Respondent) regarding the lawfulness of the camera system in question. On 4 August 2008, the Respondent found that the Applicant had committed several transgressions related to the collection and processing of personal data, as per Paragraph 44(2)(e,f,i) of Law No 101/2000. The Applicant appealed this decision at the Prague City Court, which upheld the decision of the Authority on 25 April 2012. The Applicant subsequently appealed this decision by filling a cassation objection with the Supreme Administrative Court. By means of Decision 1 As 113/2012-155, the Court stayed the proceedings and referred a request for a preliminary ruling to the CJEU. On 11 December 2014, the CJEU addressed the interpretation of Article 3(2) of Directive 95/46 in the case C-212/13 Ryneš. In the present judgment, the Supreme Administrative Court rules on the Applicant’s cassation objection.

• Administrative judicial enforcement

Annulment of the ruling of the Prague City Court, which previously upheld an administrative decision of the Personal Data Protection Authority.

Can the operation of a camera system installed on a family home for the purposes of the protection of the property, health and life of the owners of the home be classified as the processing of personal data “by a natural person in the course of a purely personal or household activity” for the purposes of Article 3(2) of Directive 95/46 [...], even though such a system also monitors a public space?

The applicant submitted six grounds for a cassation objection.

First, the Applicant questioned the interpretation of “personal data” and their processing by the Respondent and the Prague City Court. Relying on Paragraph 4 of Law No 101/2000, “personal data” was stated to be any data related to a natural person, which could lead to a direct or indirect identification of this data subject. The Court then referenced the functioning, character and ability of the camera system to process personal data, alongside Paragraph 19 of the CJEU’s ruling in C-212/13 Ryneš, noting that the Applicant was capable of being a data controller and processing personal data. Accordingly, this cassation ground was rejected.

Second, the Applicant alleged that the Prague City Court, an administrative judicial body, decided ultra vires. Relying on the nature of the data in question and the legally-defined powers of administrative courts, the Court swiftly rejected this ground.

Third, the Applicant alleged that Law No 101/2000 should not have been applied, as the data was being processed solely for his personal use. Citing Paragraph 35 of C-212/13 Ryneš, the Court likewise rejected this ground for cassation.

Fourth, the Applicant challenged the consistency of the Respondent’s administrative practice. First, the Court noted that Law No 101/2000 is silent regarding the operation of camera systems and that Directive 95/46 is too general, thereby creating a situation of legal uncertainty for the Applicant. Second, the Court heavily criticised the Respondent’s contradictory practice in applying Paragraph 3(3) of Law No 101/2000 to camera systems, both in general and in relation to the Applicant’s case. The Court found that these two factors produced legal uncertainty of such significance that in a material sense, no law existed on the basis of which the Applicant could be sanctioned. The administrative proceedings could therefore even amount to a violation of Article 7 ECHR. Thus, this cassation ground was declared admissible.

Fifth, the Applicant alleged that even if Law No 101/2000 would apply, the processing of personal data would be justified by the protection of property and health of the Applicant and his family, as permitted by Paragraph 5(2)(e). Assessing this legitimate aim was also explicitly called for by the CJEU in its preliminary ruling. The Court therefore employed a proportionality assessment to balance the competing fundamental right to privacy of members of the public, and the protection of the property and life of the Applicant, finding this cassation ground to be admissible.

Finally, the Applicant challenged his obligation to inform a data subject of the processing of their personal data based on exceptions defined in law. The Court denied this ground, finding that collection alone rendered any exception inapplicable.

The Court considered that there were means available to the Applicant, such as a warning window sticker, which could inform prospective data subjects without limiting the effectiveness of the camera system. The Court declared the cassation objection admissible on the fourth and fifth grounds submitted by the Applicant. The decision of the Prague City Court was annulled, and the matter was returned to the Respondent for further proceedings.

Role of the Charter and role of the general principles on enforcement

The decision of the Supreme Administrative Court does not explicitly reference the Charter. Overwhelmingly, there is a focus on the Czech Charter of Fundamental Rights and Freedoms, which is similar to the CFREU in content.

Nevertheless, the Charter remains indirectly relevant as it was explicitly referenced by the CJEU in the preceding preliminary ruling, C-212/13 Ryneš, especially as regards Article 7. The Supreme Administrative Court declared the first and third cassation grounds to be inadmissible on the basis of this decision of the CJEU.

• Right to an effective remedy before a tribunal
• Right to a fair hearing by an independent and impartial tribunal previously established by law.

• Constitution of the Czech Republic (1993) Article 3 The Charter of Fundamental Rights and Basic Freedoms forms part of the constitutional order of the Czech Republic.
• Charter of Fundamental Rights and Freedoms (1992) Article 4 […] (4) In the deployment of limitations to fundamental rights and freedoms established by law, the essence and purpose of those rights must be preserved. Such limitations must not be misused for reasons other than for which they are intended. Article 6 (1) Everyone has the right to life. […] […] Article 7 (1) The inviolability of the person and her privacy is guaranteed. It may be limited only in situations laid down in law. […] Article 10 (1) Everyone has the right to have preserved their human dignity, personal honour, good reputation and good name. (2) Everyone has the right to protection from unlawful interference in their personal and family life. (3) Everyone has the right to protection from the unlawful collection, publication or other forms of misuse of their personal data. Article 11 (1) Everyone has the right to own property. […] […]

Article 7 CFREU was relevant to the extent that it inspired the CJEU’s answer to the preliminary question in C-212/13 Ryneš, which was referenced several times by the Court in the present case.

Article 7 ECHR was referenced by the Court while addressing the fourth cassation ground. Here, the Court referred to the principle of nullum crimen, nulla poena sine legge, as enshrined in this Article, noting that the legal uncertainty created by the general nature of the relevant Czech and European law, as well as the inconsistent practice of the Respondent, created a situation of such legal uncertainty that no law could be said to have existed on the basis of which the Applicant was sanctioned by the Respondent.

As regards the rights enshrined in the Czech Charter of Fundamental Rights and Freedoms, the Court spent considerable time deploying a proportionality assessment to determine whether Article 7 rights of the general public, as represented by the Respondent, could in the present case have been limited by the Applicant’s rights enshrined in Articles 6(1) and 11(1) of the Charter. The Court reached an affirmative conclusion as to the matter.

• Proportionality
• Dissuasiveness

Summary of the role of the principle of dissuasiveness On the one hand, the Court invoked the principle of dissuasiveness implicitly while assessing the suitability of the camera system, as part of its three-step proportionality test. The Court noted that when prospective perpetrators are aware of the presence of a camera system, such as the one installed by the Applicant, then they may be dissuaded from engaging in delinquent activity in the first place. Consequently, the camera system was deemed to be a suitable means of dissuading from criminal activity against the Applicant’s property.

On the other hand, the Court referred to the principle of dissuasiveness while justifying the rejection of the Applicant’s sixth ground for cassation. While justifying the reasons for the inapplicability of exceptions to the obligation to inform data subjects of the processing of their data, the Court noted that means were available to the Applicant that would go a long way towards ensuring he fulfilled this obligation without prejudicing the effectiveness of the camera system, such as a warning window sticker. The Court remarked that such means would also have a dissuasive effect upon individuals contemplating the commission of a criminal act against the property of the Applicant.

The principle of proportionality figured prominently in the Court’s assessment of the fifth cassation ground advanced by the Applicant, namely, that the protection of the property and health of the Applicant and his family could justify the unlawful processing of personal data alleged by the Respondent. The Applicant alleged an incorrect application of this principle by the Respondent and the Prague City Court, which could lead to the declaration of any camera system as unlawful from the perspective of the processing of personal data. The Supreme Administrative Court agreed with the Applicant. To balance the conflicting rights as enshrined in the Czech Charter of Fundamental Rights and Freedoms, the Court employed a proportionality assessment of the Applicant’s camera system in three steps.

First, the Court considered the suitability of the camera system. The Court deemed it to be suitable as it produces evidence of criminal conduct, or at least deters a delinquent from engaging in criminal behaviour where they have knowledge of the presence of the system.

Second, the Court assessed the necessity of the camera system, finding it to be necessary – the system was only installed after repeated attacks against the Applicant, which could not be investigated by the police in their entirety. Moreover, it responded to a real, long-existent and immediate threat, and it was capable of identifying a concrete perpetrator. To this end, the Court also remarked that the Applicant had suffered disproportionately already prior to the installation of the camera system.

Finally, the substantive importance of each conflicting right was considered. Here, the Court ruled that the camera system was installed so as to effectively monitor the area from which multiple previous attacks against the house of the Applicant’s wife had taken place, and that the portion of the public space surveyed did not include objects of personal or private importance to those living across the road. While the Respondent also referred to case law in similar situations where the use of camera devices was found to be contrary to Law No 101/2000, the Court denied these on procedural and relevance grounds.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
• Dialogue between high court - lower instance court at national level

• CJEU C-212/13, Ryneš

• Engel and Others v the Netherlands App nos 5100/71; 5101/72; 5102/71; 5354/72; 5370/72 (ECtHR 8 June 1976)
• Cantoni v France App no 17862/91 (ECtHR 11 November 1996)
• Lauko v Slovakia App no 26138/95 (ECtHR 2 September 1998)
• Kadubec v Slovakia App no 27061/95 (ECtHR 2 September 1998)

[please specify and explain the judicial dialogue pattern] please check which of the following dialogue techniques were used: Conform interpretation with EU law as interpreted by the CJEU In C-212/13 Ryneš, the CJEU provided the following answer to the question posed to it by the Supreme Administrative Court: “the second indent of Article 3(2) of Directive 95/46 must be interpreted as meaning that the operation of a camera system, as a result of which a video recording of people is stored on a continuous recording device such as a hard disk drive, installed by an individual on his family home for the purposes of protecting the property, health and life of the home owners, but which also monitors a public space, does not amount to the processing of data in the course of a purely personal or household activity, for the purposes of that provision.” Accordingly, the Supreme Administrative Court proceeded to conclude in the present case that the Applicant was not processing data in the course of a purely personal or household activity, and declared his first and third cassation grounds to be inadmissible.

To clarify whether a general rule of European law as laid down in Directive 95/46 could be applied to the specific situation of a fixed-mount continuous loop camera system, more specifically, whether this could be considered an instance of data processing for a purely personal or household activity.

Declaration of the operation of the camera system in question as falling outside the scope of a purely personal or household activity, rejection of the first and third ground for cassation as advanced by the Applicant. Overall acceptance of the cassation objection on the fourth and fifth cassation grounds.

Additional notes on the decision

The decision of the Prague City Court of 25 April 2009, 9 Ca 41/2009-60, was annulled.