Slovenia: Information Commissioner challenges the data retention law

By EDRi · March 27, 2013

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Deutsch: [Slowenien: Datenschutzbeauftragter stellt Vorratsdatenspeicherung in Frage |]

The Information Commissioner of the Republic of Slovenia challenged on
19 March 2013 the national implementation of data retention directive
before the Constitutional Court.

The Information Commissioner holds that the data retention provisions of
the Act on Electronic Communications (ZEKom-1), which came into force on
15 January 2013, do not respect the principle of proportionality and
that they have been transposed into the national law in contrast with
the provisions of the Data Retention Directive 2006/24/EC.

Data retention has been in force in Slovenia since 2007 (telephone data)
and 2009 (internet related data) with retention periods of 14 and 8
months respectively (in 2009 retention periods were shortened from
previously 24 months). In the new Act on Electronic Communications,
adopted to transpose the provisions of the amended telecommunications
package, the legislator did not amend the provisions on data retention.

The Information Commissioner reasons that huge amounts of data are
stored in advance about the electronic communications of each
individual, regardless of whether he or she has fully obeyed the law or
not. Whereas the principle of legality was respected, the principle of
proportionality was completely neglected by the legislator. Processing
of personal data is regulated in a manner that is not compatible with
the rule of law since it does not respect the conditions allowing
encroachments of human rights. Having taken an absolutist approach to
the retention of data, the legislator also affected other rights such as
the right to secrecy of communications, freedom of speech and movement.
It did so without providing any evidence or analysis that such a measure
is necessary and is reflected in a greater (if any) impact on the
prosecution of criminal offences. In fact, the government has failed to
provide any regulatory impact analysis after years of data retention
that would justify its existence.

The aim of Directive 2006/24/EC was to establish mandatory data
retention of electronic communications in order to ensure that the data
are available for the purpose of the investigation, detection and
prosecution of serious crime, as defined by each Member State in its
national law. The purposes of data retention under ZEKom-1 however
differ significantly – not only did the legislator broaden the scope by
not limiting data retention only to serious criminal offences and
extending it to all criminal offences, but the data may also be used for
the purposes of ensuring national security and the constitutional order,
and the security, political and economic interests of the state, as
stipulated by the law governing the Slovenian Intelligence-Security
Agency, and for the purposes of national defence as stipulated by the
law governing the defence of the state. The Commissioner’s inspections
also revealed that the retained data were also used in civil
litigations, labour law disputes and misdemeanour procedures.

The Information Commissioner therefore decided to file a request to the
Constitutional Court of the Republic of Slovenia to assess the
constitutionality of data retention provisions. It also proposed that
the request be given preferential treatment and that data retention
provisions be temporarily suspended.

The Constitutional Court of the Republic of Slovenia may temporarily
suspend the enforcement of the act in part or fully if the enforcement
of the act would result in damaging and possibly irremediable
consequences. There is no deadline in which the Court should decide –
proposals for temporary suspensions are however usually dealt with in
three months. If the Court upholds the proposal for temporary
suspension, the decision of the Court takes effect the next day after
the decision is published in the official gazette.

The Court’s decision regarding the preferential treatment of the case is
based on an analysis on whether the case carries an important legal
question. The request itself is assessed in a closed session. Should the
Court agree with the reasoning of the Information Commissioner, the case
is given preferential treatment, meaning that it will be dealt with,
regardless of when it was submitted. It is difficult to estimate when
this could happen (depending on the number of pending cases), but
according to previous experiences it would most probably take more than
a year.

Request to the Constitutional Court (only in Slovenian)

Electronic Communication Act (ZEKom-1) (only in Slovenian)

Information Commissioner of the Republic of Slovenia

Information Commissioner of the Republic of Slovenia challenges data
retention before Constitutional Court (19.03.2012)

(Contribution by Mr. Andrej Tomšič – Deputy Information Commissioner,
Republic of Slovenia)