Bulgarian Court annuls a vague article of the data retention law

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On 11 December 2008, the Bulgarian Supreme Administrative Court (SAC)
annulled article 5 of the national legislation that implements the Data
retention Directive, following a lawsuit initiated by Access to Information
Program(AIP).

Article 5 of the Bulgarian Regulation # 40 that was issued by the State
Agency on Information Technologies and Communication and the Ministry of
Interior provided for a “passive access through a computer terminal” by the
Ministry of Interior, as well as access without court permission by security
services and other law enforcement bodies, to all retained data by Internet
and mobile communication providers.

A five-member panel of the SAC annulled the article, considering that the
provision did not set any limitations with regard to the data access by a
computer terminal and did not provide for any guarantees for the protection
of the right to privacy stipulated by Art. 32, Para. 1 of the Bulgarian
Constitution. No mechanism was established for the respect of the
constitutionally granted right of protection against unlawful interference
in one’s private or family affairs and against encroachments on one’s
honour, dignity and reputation.

The court also found that the text of Art. 5 of the Regulation
providing that the investigative bodies, prosecutor’s office and the court
shall be granted access to retained data “for the needs of the criminal
process,” the security services – “for the needs of the national security”,
does not provide limits against violations of constitutionally granted
rights of the citizens. Reference to specialized laws – such as Penal
Procedure Code, Special Surveillance Means Act, Personal Data Protection
Act, which specify conditions under which access to personal data shall be
granted, was not provided either.

Furthermore, according to the court, Art. 5 of the Regulation contradicts
the provision of Art. 8 of the European Convention on Human Rights.

The court emphasises that national legal norms shall comply with the
established principle and shall introduce comprehensible and well formulated
grounds for both access to the personal data of citizens and the procedures
for their retention. Article 5 of the Regulation lacks clarity in terms of
protection of the right to private and family life which contradicts the
provision of Art. 8 of the ECHR, the texts of the Directive 2006/24/EC, and
Art. 32 and 34 of the Bulgarian Constitution.

The decision or this court comes after an initial rejection of the demand by
a first court panel on 17 July 2008. This is final and can’t be appealled to
higher competent courts of justice.

The Bulgarian Supreme Administrative Court (SAC) repealed a provision of the
Data Retention in the Internet Regulation (11.12.2008)
http://www.aip-bg.org/documents/data_retention_campaign_11122008eng.htm

Data Retention on the Internet – Legal Action by Access to Information
Programme in Bulgaria – 2008
http://www.aip-bg.org/documents/data_retention_campaign_eng.htm

Supreme Administrative Court issues a good decision for the Bulgarian
Internet (11.12.2008)

Supreme Administrative Court issues a good decision for the Bulgarian Internet

(Thanks to Veni Markovski – EDRi-member ISOC Bulgaria)