Evidential validity of images obtained with video surveillance systems. Right to privacy and personal image under Article 18.1 of the Spanish Constitution
Commentary on Supreme Court Ruling (Criminal Chamber) Section 1, No. 457/2025 of 21 May.
By means of Supreme Court Ruling No. 457/2025 of 21 May, the First Section of the Fourth Chamber of the Supreme Court dismissed the appeal and upheld the ruling handed down by the High Court of Justice of the Balearic Islands on 7 November 2024, which upheld virtually all of the ruling handed down by the Second Section of the Provincial Court of Palma de Mallorca on 16 July 2024.
In the referenced ruling, the Provincial Court of Palma de Mallorca sentenced two individuals to eight years in prison for committing a crime against public health under Articles 368 and 369.1.5 of the Criminal Code, after they were found in possession of narcotic substances in storage rooms owned by warehouse rental companies in the town of Ibiza. All of this was the result of a search carried out in the vicinity.
The appellant bases its appeal, among other grounds, on the violation of Article 18 of the Spanish Constitution (hereinafter, CE), which regulates the fundamental right to personal privacy and one’s own image.
Specifically, it considers that the video recordings obtained through closed-circuit television installed in the common areas of warehouse rental companies should be excluded from the body of evidence, given that there is no record that the corporations in question had complied with the requirements imposed by law when capturing such data.
Article 22.4 of Organic Law 3/2018 of 5 December on the Protection of Personal Data and Guarantee of Digital Rights (hereinafter, LOPDGDD) and Article 12 of the European Union’s General Data Protection Regulation (Regulation EU 2016/679) provide for the obligation to inform customers of the existence of video surveillance cameras through the corresponding information signs at each access point, as well as inside the premises.
It is alleged that there is no record that the images captured by the video surveillance cameras were included in the record of processing activities (Article 30 of Regulation (EU) 2016/679). Nor is there any evidence of the implementation of technical and organisational security measures in these establishments to ensure that unauthorised third parties did not have access to the recordings (Art. 24 EU Regulation 2016/679).
However, the ruling under analysis rejects this argument and concludes that the failure to display a sign informing of the video recording of the common area providing access to the storage rooms or doubts about the validity of a contract with a data protection management company does not, per se, allow the recordings to be considered invalid evidence in legal proceedings.
It explains that the constitutionally significant purpose is to deter the police and private individuals from committing acts contrary to fundamental rights, with the aim of obtaining an evidentiary advantage in the proceedings. In other words, the aim is to prevent the violation of fundamental rights in the obtaining of evidence or sources of evidence from being used to obtain unfair advantages, either in the current proceedings or in any proceedings that may be initiated, by taking advantage of such violations (referring to SSTC 81/2998). In order to obtain unfair advantages, either in the current proceedings or in any proceedings that may be initiated, by taking advantage of such violation (referring to SSTC 81/2998, 41/1999, 222/2003, 97/2019).
By way of illustration and to facilitate understanding of this argument, he draws a parallel with a person who enters a private home without proper authorisation and finds the bodies of two dead people. This clearly constitutes a violation of the right to the inviolability of the home and may constitute a criminal offence. However, there would be no constitutional reason to activate the so-called exclusionary rule and discredit the integrity of the process (citing the ECHR, Cwik v. Poland, 5 February 2021).
Furthermore, it considers that it is highly questionable that users of storage rooms or containers managed by storage companies can invoke a constitutionally significant expectation of privacy with regard to the recording of common areas providing access to the facilities (see, among others, the ECHR, Vukota-Bojiae v. Switzerland, 18 October 2016). It adds: ‘among other reasons, because this type of rental relationship very often involves an obligation on the part of the landlord to ensure the security of the premises by means of other mechanisms, such as the installation of video surveillance systems in common areas’.
In short, the well-deserved ruling concludes that the requirements for applying the exclusionary rule are not met, as the duty to inform customers of the existence of video surveillance cameras has been fulfilled.
Clara Tomás
Internal Investigations Department – Molins Defensa Penal