By EDRi

The Czech Constitutional Court decided today, 31 March 2011, that the national implementation of the data retention directive is unconstitutional, in a complaint drafted by EDRi-member Iuridicum Remedium (IuRe).

See below the full press release from IuRe and Translation in English of the decision

Constitutional Court: Spying on Communication Declared Unconstitutional

An ongoing campaign by the civic rights organisation Iuridicum Remedium (IuRe) aimed against public spying on everyday communication resulted in a considerable success. In its today´s session, the Constitutional Court announced its decision to repeal legislation according to which records of e-mails, phone calls, SMS as well as websites accesses of every citizen should be retained for a time period of six months as a matter of precaution.

“The Constitutional Court accepted all points of our complaint and we do consider this a great success. Now the time has come to open discussion on new ways of implementing the Data Retention Directive into our legal system in order to meet the highest standards with respect to privacy protection. Of course, only assuming that the Directive will not be repealed as a whole,” explains IuRe legal expert Jan Vobořil.

Constitutional Court agreed with IuRe privacy protection activists and a group of 51 MPs headed by Marek Benda who in March 2010 submitted a proposal elaborated by IuRe calling for repeal of relevant sections of the Electronic Communications Act and implementing legislation imposing obligation on mobile operators and internet providers to retain data on communication for police use. “I do welcome this decision of the Constitutional Court to accept the proposal of Civic Democratic Party (ODS) MPs to repeal such obligation imposed on operators. This is another confirmation proving the merits of our ongoing efforts to protect personal integrity. Not even the European anti-terrorism campaign can lead to unrivalled privacy infringement,” urged MP Marek Benda, MP. Apart from Civic Democrats (ODS), the complaint filed with the Constitutional Court also enjoyed support of Green Party (Strana zelených) MPs.

The Court declared the respective section of the Electronic Communications Act and its implementing legislation unconstitutional and repealed it as of today. According to the Court statement, ambiguous definition of data retention rules results in a situation where such “measures as to request and use retained data are being overused by authorities engaged in criminal proceedings for purposes related to investigation of common, i.e. less serious crimes”.

“The Constitutional Court also regards e.g. certain provisions of the Criminal Act concerning the use of such data by authorities engaged in criminal proceeding as highly questionable and it called on MPs to consider its modification,” adds IuRe expert Petr Kučera.

According to the Court, it will be necessary to consider each individual case in which data have already been requested in order to be used in criminal proceedings one by one – with respect to the principle of proportionality regarding privacy rights infringement. “This decision also implies that electronic communication providers are no longer obliged by any law to retain such data for the use of entitled authorities – as was previously the case according to the repealed provisions; the respective databases should be deleted,” explains IuRe legal expert Jan Vobořil. “This Constitutional Court decision is of great importance not only with respect to the Czech Republic but to the European Union as a whole, since there is currently an evaluation process under way assessing the impact and constitutionality of the Data Retention Directive,” comments Vobořil.

More info on IuRe at

http://www.iure.org/

Unofficial translation in English of the Court Decision (26.04.2011)

http://www.edri.org/files/DataRetention_Judgment_ConstitutionalCourt_CzechRepublic.pdf