18 April 2011

Another One Bites The Dust: Czech Constitutional Court Shoots Data Retention With Five Bullets

Autumn Morningphoto © 2007 Jeff | more info (via: Wylio)

The judicial development on data retention across Europe will not cease! Following the meanwhile numerous decisions in, just to mention some, Bulgaria, Romania and Germany, some two weeks ago

The Czech Constitutional Court Abrogated Data Retention

Yes, on a sitting held on 22 March 2011 it delivered a ruling abrogating Section 97, subsections 3 and 4 of the Czech Electronic Communications Act as well as the related Decree 485/2005 on the storage of traffic and location (altogether “the contested provisions”).

Court’s ruling grounded on the following

Reasoning

1. The language of the contested provisions is too vague and thus fails to fulfill the constitutional requirement on certainty and clarity.
2. The contested provisions have failed to clearly and precisely define the purpose to retain data and particularly to rectify the vague serious crimes language of Directive 2006/24/EC. Such failure contradicts the requirements laid down in the Charter of Fundamental Rights and Basic Freedoms (the Charter).
3. The absence of clear legal determinations is likely to result in an abuse, i.e. in that the law enforcement agencies use retained data to combat less serious crimes. The latter view appears fortified by the following quotation from the 2008 Report on the security situation in the Czech Republic: a total number of 343 799 comitted criminal offenses resulted in the total number of 131 560 applications to access retained data.
4. The contested provisions have failed to safeguard the integrity and confidentiality of the retained data and to prevent access through (non-state) third parties. The Court opines that such safeguards are mandated by the enormous development and emergence of new and more complex information technologies and communications systems that inevitably blur the boundaries between private and public space.
5. The contested provisions have failed to provide for the destruction of the data following the retention period. The contested provisions have further failed to provide for responsibilities of and sanctions against the public authorities in case of abuse of the retained data as well as for the possibility of individuals to seek for effective relief against such abuse.

In light of the above, the Court found the contested provisions violating constitutional limits and hence unconstitutional. Besides, the Court expressed also some doubts as to the constitutionality of s. 88a of the Czech Criminal Code and urged the lawmakers to either derogate said section or provide for its constitutional compliance.

So, three cheers to the Czechs and their Constitutional Court!

Skydiver with Czech flag

photo © 2010 Ivan Pik | more info (via: Wylio)

 

Conclusion

The decision of the Czech Constitutional Court goes in a clear confrontation with the legislature.
It is the first decision in a EU member state to criticise the lack of responsibilities in dealings with retained data and to demand sanctions for negligence and misuse.
Unlike the decisions in Romania and Germany, it does not deliver  guidance as to how lawmakers should repair the contested provisions in order to achieve constitutional compliance.
In other words, the courts in Romania and Germany made really precise shots that aimed to merely injure their national data retention provisions. The Czech decision is quite the opposite: the justices shot to kill.
A righteous kill?
I would say yes.

What would you say?

Comments (6)

  1. 19 April 2011
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  2. 20 April 2011
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  3. 22 April 2011
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  4. 22 April 2011
    mikeross said...

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  5. 23 April 2011
    Alissa Kirschke said...

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  6. 25 June 2012

    […] в някои страни-членки на ЕС (повече тук, тук,  тук и тук), oт около 2 години очакваме и становището на Съда […]

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