The right of the human being to intimacy
Introduction
The practice of the subject 6 of the subject – Chapter 6 of the manual of Professor Casanueva Sánchez – is entitled: “Does the cameras on public roads invade our right to intimacy?". The indicated chapter 6 is dedicated to the study of the legal business and begins by analyzing the distinction between the figures of the legal act, act and business. To connect the practice and the issue, it can be said that the decision to install a surveillance chamber in a public road is a legal act that, when agreed by the authorities, is called the administrative act, defined as “any legal act issued by the administration and administration and subject to administrative law ”(1). On the other hand, when the decision to install a surveillance chamber in a private property for security reasons, individuals (building, urbanization, private house … etc …) the decision to install said private chamber is a legal act that meets its own requirements, that is, "a human action, a conscious will, an externalization and a legal consequence derived from it" (2) that can be to respond to the damages that can be caused if that installation does not fit to the law and attempt to the rights of someone for example taking images of public places, which is expressly prohibited by the art. 42 of Law 5/14 of April 4 of Private Security.
Following the title of the practice, the first case must.
Developing
The right to privacy is recognized in art. 18.1 of the Spanish Constitution (CE): “1. The right to honor, personal and family intimacy and the image itself is guaranteed ”. It should be noted that art. 10.2 of the CE establishes that “the norms related to the fundamental rights and the freedoms that the Constitution recognizes will be interpreted in accordance with the Universal Declaration of Human Rights and the International Agreements and Agreements on the same matters ratified by Spain”, therefore, therefore, The treaties in which this right to privacy is also recognized, such as: art. 12 of the Universal Declaration of Human Rights, Art. 8 of the Agreement for the Protection of Human Rights and Fundamental Freedoms, made in Rome on November 4, 1950, Art. 17 of the International Covenant on Civil and Political Rights, made in New York on December 19, 1966, and Art. 7 of the Charter of Fundamental Rights of the European Union of December 14, 2007. On the other hand, the definition and content of the right to privacy from the international point of view must be completed with the sentences issued by the European Court of Human Rights and by the Court of Justice of the European Union.
In Spain, our Constitutional Court in resolving amparo resources for violation of fundamental rights has defined in its sentences the right to privacy, and for example in Judgment 199/2013, of December 5, 2013 it says the following: “ This Constitutional Court has affirmed that the right to personal privacy “as a derivation of the dignity of the person (art. 10.1 CE), implies the existence of its own and reserved area against the action and knowledge of others, necessary, according to the guidelines of our culture, to maintain a minimum quality of human life ”(…). In any case, “what the art. 18.1 guarantees is a right to secret, to be unknown, that others do not know what we are or what we do, seeing that third parties, whether particular or public authorities, decide what are the boundaries of our private life, being able to reserve a Subguarded space of the curiosity of others, whatever the contained in that space ”(SSTC 127/2003, of June 30, FJ 7 and 89/2006, of March 27, FJ 5)”.
As can be seen in the previous ruling, the right to privacy – as our constitutional court defines it – is a “derivation of the dignity of the person”, so it must be understood that attacks on privacy are also attacks on The dignity of the human person. In this sense, “the recognition of the right to personal and family intimacy aims, therefore, to guarantee the individual a reserved area of his life, linked to respect for his dignity as a person (article 10.1 CE), in the face of the action and knowledge of others, whether these public or simple powers, so that it attributes to its owner the power to protect that reserved area, not only personnel but also family, in the face of the dissemination of same by third parties and unin dear advertising, thus avoiding arbitrary interference in private life, censored by article 12 of the Universal Declaration of Human Rights ”. (3).
Although they are regulated in the same constitutional precept must be differentiated between the right to privacy itself of the right to the image itself and “thus, personal and family intimacy refers, in essence, to privacy, which must be respected both by citizens, as, especially, for public authorities. The right to the image itself, on the contrary, refers, in essence, to the material or physical collection of the image ”.(4)
It should also be highlighted as the law protects the most serious attacks on privacy creating crimes that are regulated in the book I-Titter X of the Criminal Code, entitled: “Crimes against intimacy, the right to the image itself and the inviolability of domicile ”; On the other hand, when attacks on intimacy do not have the character of crime not for that reason people are defenseless, since Organic Law 1/1982, of May 5, on Civil Protection of the Right to Honor, Personal privacy and Family and to the image itself allows the protection of justice to obtain illegitimate interference in these rights.
Right to privacy
Bearing in mind the jurisprudence and doctrine mentioned above we will deal with the main issue of work. After an analysis of legal texts and under a fully positive point of view, the capture of images of people by cameras on public roads is fully legal if it is carried out by the competent authorities according to the law. In this sense, Organic Law 4/1997, of August 4, which regulates the use of camcorders by the security forces and bodies in public places says in its article 2.1 That “the collection, reproduction and treatment of images and sounds, in the terms provided in this law, as well as preparatory activities, will not be considered illegitimate interference in the right to honor, personal and family privacy and the image itself, For the purposes of the provisions of article 2.2 of Organic Law 1/1982, of May 5 ”.
But according to the objective of this practice, the discussion should not be limited to accepting the solution to the issue from the merely legal point of view, which is sharp and clear, although it is purely legal. The question that could be asked would be if in case there was no law, the same conclusion contained in the aforementioned Art could be reached.two.1. Or in other words, regardless of legal regulation, the question is whether the collection of images by a chamber installed in a public road agreed by an authority for security reasons would violate in itself the right to privacy as defined as it has been defined In the previous section.
To answer that issue we can ask ourselves first if the activity carried out by people in a public space is intimate. If the right to privacy is related to the will that some of our private life is hidden or secret and does not know each other for others, it is difficult to defend that a behavior made in a public space can be intimate, and this is logical, For public roads circulate citizens who can observe and appreciate the behaviors of the other pedestrians without a violation of the right to privacy, which can be analogously extrapolated to those who monitor the public road from a security chamber installed in the street; That is, if an activity is carried out in public, in a public road, and is observed by the rest of the pedestrians, it can also be observed by a surveillance chamber without this implying to attempt intimacy because an activity carried out in public by why Yes, it is not private or intimate, since there is not in fact the intimacy on the roads and other public spaces.
Now, it is worth asking if the fact that an activity carried out in public is not private or intimate would give the authorities entitled to install surveillance cameras on public roads without any control. The most logical response must be negative because the rule of law cannot become a kind of police state, and although a moderate and justified use of surveillance chambers does not have to affect the right to privacy, on the contrary, The uncontrolled or "massive" use of that power to capture images on public roads that in principle would not affect the right to privacy if it can endanger it to the extent that the "obsession" of the power to control all our movements would be. The best guarantee that citizens can count within a rule of law is that it is the laws that regulate the use of camcorders, because although “police video surveillance in a place open to the public does not violate the right to privacy not It means that it is constitutionally irreproachable ”(5) since if it does not have legal coverage it is illegal and is also subject to the principle of interdiction of arbitrariness (art.9.3 CE) and, therefore, the placement of cameras must exceed the demands of the principle of proportionality (6). The aforementioned Organic Law 4/97 of August 4 is the one that authorizes the police to establish fixed chambers on public roads provided that the principle of proportionality is respected which requires the suitability of the measure and the minimum intervention:
- suitability: the camcorder can only be used when appropriate, in a specific situation, for the maintenance of citizen security, in accordance with the provisions of that law.
- The minimum intervention requires the weighting, in each case, between the intended purpose and the possible affectation by the use of the camcorder to the right to honor, the image and the privacy of the people, its use is justified if there is a reasonable risk For citizen security.
Only if the installation of the camcorder meets said principle of proportionality and the other requirements established in said law will be excluded absolutely illegitimate interference in the right to privacy.
On the other hand, although capturing with a legally installed camcorder an ordinary behavior on public road To somehow commit the right to personal intimacy or even freedom, and for example, a citizen can be indifferent that some pedestrians see him entering a “bad reputation club” of the city, but maybe he doesn’t want He captures a camera located nearby and that the authorities have that information about his life, even being able to decide not to enter that premises which indirectly imply his personal freedom. This consideration leads us to the need for recorded images to be duly stored by a person in charge and if they do not reveal anything of interest to the police that are erased as soon as possible (the aforementioned Organic Law 4/1997 establishes the maximum period of one month ).
Conclusions
- Personal intimacy is a fundamental right that emanates from the person’s own dignity.
- The right to personal privacy is not an absolute right and can conflict with other fundamental rights such as the right to security recognized in art. 17.1 of the CE.
- Although as a general rule the acts performed on public roads cannot be described as intimate, in certain circumstances the recordings can capture aspects of the behavior of an individual that even without being criminal or illegal, however, it does not want to be known by the authority.
- Only a proportionate and justified use of video surveillance in public roads can make absolutely the right to security over any aspect of the right to intimacy of pedestrians, as long as the recordings are guarded well and that everything that they do not have Interest for the police is erased as soon as possible.
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