Czech Constitutional Court rejects data retention legislation
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Deutsch: Tschechisches Verfassungsgericht hebt Vorratsdatenspeicherung auf
The Czech Constitutional Court declared national data retention legislation unconstitutional on 31 March 2011. This is part of the Electronic Communications Act and its implementing legislation according to which records of e-mails, phone calls, and SMS as well as websites accesses of every citizen should be retained by telecommunications companies for a time period of six months, as an implementation of the Data Retention Directive. This court decision followed previous decisions of the constitutional courts of Germany and Romania.
The complaint filed with the Constitutional Court was prepared by activists from EDRi-member Czech civic rights organisation Iuridicum Remedium and 51 MPs from the Civic Democratic Party (ODS) and the Green Party (SZ) who signed it in March 2010.
The Constitutional Court decision criticizes the Czech transposition of the Data Retention Directive. The Czech legislation requires the retaining of a larger number of data than the directive demands, where the use of data is not limited to investigating terrorism and serious organised crime. There was a lack of the principle of subsidiarity in the legislation related to eavesdropping, although these data are equally sensitive. This has led to a large number of requests for such data by the police. The national legislation lacked, according to the constitutional court, clear and detailed rules for the protection of personal data as well as the obligation to inform the person whose data has been requested.
The court said that EU law was not part of the constitution of the Czech Republic and that the directive could therefore not be reviewed by the Constitutional Court. According to the court decision, the content of the Data Retention Directive gives the Czech Republic sufficient space for its constitutionally conformal transposition. However, the Constitutional Court has doubts about the necessity and proportionality of the data retention principle in the obiter dictum paragraphs (p. 55-57). The court doubted whether the blanket monitoring of the communications of all citizens in terms of intensity of intervention into the private sphere is necessary and appropriate. The court also doubted the effectiveness of the use of the retained data in combating crime, particularly with reference to the possibility of anonymising communications. The police statistics show that despite a significant increase in the number of requests for traffic and location data, this did not translate into a proportional number of committed and solved crimes.
The Constitutional Court also regards 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. 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, with respect to the principle of proportionality regarding privacy rights infringement.
Text of the complaint (only in Czech)
Text of the court decision (only in Czech) - to be translated in English in
the next 2 weeks
Constitutional Court: Spying on Communication Declared Unconstitutional
Constitutional Court invalidates telecommunications data retention
Czech Republic: Constitutional Court Overturns Parts of Data Retention Law
(Contribution by Jan Voboril - EDRi-member IuRe - Czech Republic)