The framers of the Data Retention Directive must have underestimated several factors in the course of its subsequent implementation. First Ireland brought a challenge before the ECJ then Austria still shows totally reluctant to implement. However, the big bang is currently unrivalled owned by Romania! This country’s Constitutional Court is the first to deliver a ruling that declares an act implementing the directive into a member state’s law unconstitutional.
Now, after Dracula and Johnny Weissmuller, Romania has, in the person of Prof. Ioan Vida being the President of the Romanian Constitutional Court, good chances to be awarded a third VIP contribution to the world!
Basically, the Court pointed out that the law on data retention interfered with following articles of the Romanian Constitution: Art 25 Freedom of Movement, Art 26 Intimate, Family and private life, Art 28 Secrecy of Correspondence and Art 30 Freedom of Expression. In addition, the Court examined Art 12 of the Universal Declaration of Human Rights (UDHR), Art 17 of the International Covenant on civil and political rights (ICCPR) and Art 8 of the European Convention on Human Rights (ECHR) and found them affected too.
The Court recognized in its reasoning that neither the Romanian Constitution nor the ECHR prohibited state authorities to interfere with the rights mentioned above on a general scale. However, the Court, relying upon the judicateure of the European Court of Human Rights (ECtHR) in Klass vs Germany and Popescu vs Romania, opined that such interference was permissible only within a narrow path, fenced by sufficient safeguards to protect a person against arbitrary acts of state authorities.
The Court further opined that the legislator has created uncertainty because it used terms in the act that were either not or only ambiguously defined. Such uncertainty was contrary to the drafting techniques which the legislator was required to employ in the course of legislation.
Finally, the Court addressed critically two more issues in the act on data retention. The first critic dealt with the breadth of applicability of the act’s provisions – they were not limited only to wrongdoers, but covered also innocent bystanders. The second regarded the lengthy period of time for which the data were to be retained.
The entire above put together just fortified the majority of Court’s members to vote for the abrogation of the act.
Now, before the opponents and fighters of data retention fall in a state of euphoria, one has to consider that the Court did not reject the act per se. Quiet the contrary! To me, this ruling reads as a cooking recipe directed to the legislator. The recipe contains an enabling set of hints and aims to support the legislator to successfully implement that act later on.
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