By Guest author

A new chapter is expected to soon be written in the long battle between lawmakers and the Constitutional Court in Portugal, regarding the intelligence services’ access to data retention. In January 2018, 35 Members of the Parliament (MP) from three parties officially requested the Constitutional Court to provide a rule on the constitutionality of the new law that grants intelligence services access to retained data.

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The Constitutional Court has already declared the unconstitutionality of a similar law in 2015, after the president requested a preventive ruling by the Court, before signing the law. However, given that the bigger political parties continue to agree on the matter, in 2017, a new law was written that tried to address the main problems raised by the Constitutional Court. Despite the previous Constitutional Court ruling, the new president chose not to request a preventive decision by the Court and approved the new law that then came into force.

Now, the Constitutional Court will finally have a chance to provide a new decision. The main issue is that the Portuguese Constitution forbids public authorities from accessing citizen’s correspondence and telecommunications, except in the context of a criminal procedure. Given that the intelligence services have no criminal procedure competences, it is unclear if such access can be granted within the current constitutional framework.

Sadly, the same MPs have failed short on seeing the bigger picture and accept the full consequences of the Court of Justice of the European Union’s (CJEU’s) case law in Digital Rights Ireland and Tele2/Watson cases. The exact same arguments used by the CJEU to strike down the EU Data Retention Directive can be used regarding the Portuguese data retention law, as the Charter of Fundamental Rights of the European Union and the Portuguese Constitution have a similar proportionality requirement for the restriction of fundamental rights.

A few weeks earlier, EDRi observer member Associação D3 – Defesa dos Direitos Digitais had presented a complaint to the Justice Ombudsman, requesting the local data retention law to be sent to the scrutiny of the Constitutional Court – as the citizens have no other way to take a specific law to the Constitutional Court. However, it is entirely up to the Ombudsman to decide if she should take the matter to the court. It looks like Portuguese lawmakers will continue to ignore the CJEU’s case law on data retention.

MPs from three left wing parties join forces to take intelligence services’ access to data retention to the Constitutional Court (only in Purtuguese, 11.01.2018)

D3 asks Justice Ombudsman to take data retention to the Constitutional Court (only in Purtuguese, 27.12.2017)

Eurojust: No progress to comply with CJEU data retention judgements (29.11.2017)

EU Member States plan to ignore EU Court data retention rulings (29.11.2017)

European Digital Rights asks the European Commission to investigate illegal data retention laws in the EU (02.07.2015)

ECJ: Data retention directive contravenes European law (09.04.2014)

(Contribution by Eduardo Santos, Associação D3 – Defesa dos Direitos Digitais, Portugal)