Full version of the decision invalidating the data retention in Slovakia now available, the legislator has 6 months to come up with compliant provisions
Following the press release in April 2015, the Slovak Constitutional Court recently published the full version
of the decision invalidating data retention in Slovakia. The decision was rendered within proceedings initiated by EISi. The ruling has now been also published in the Collection of Laws.
- Mass surveillance
The Constitutional Court denounced mass and preventive collection of data – data about the location, duration, and the participants involved, based on the provisions of the Electronic Communications Act (Act No. 351/2011 Coll.) - as an extensive infringement of the fundamental right to privacy. According to the Constitutional Court, the extensiveness of the infringement was demonstrated by the very fact that collected data concerned a huge and unpredictable number of communicating parties and such collection could have induced a feeling of constant surveillance. The court did not see such interference as necessary, although the aim of legislation – the fight against serious crime – was considered to be legitimate by the court.
Previously, data retention applied to all persons using ordinary means of communication (such as phone or e-mail) – an aspect, which the Constitutional Court found troublesome from the beginning. The recording of such data concerned even persons who had no connection to any serious crime whatsoever. The retention was not limited to a specified time, a specified geographical location or specified groups of persons. The Court considered such safeguards – so-called data freezing – as a viable measure in case of future legislation. Moreover, the level of technical and organizational safeguards of the Electronic Communication Acts was also found to be insufficient. As a result, the disputed provisions were found not to be in compliance with the constitutional guarantee of the right to privacy.
- Access to data
The provisions of two other acts – Penal Code (Act No. 301/2005 Coll.) and Police Force Act (Act No. 171/1993 Coll.), that established the access to data by law enforcement authorities – were criticized by the Court for their broad scope. The data could have been accessed in case of any serious crime. In the case of the Police Force Act, data could have been accessed even in cases of “ordinary” crimes. The Constitutional Court deemed such broad access as unacceptable.
“The extent of intensity of interference with the right to privacy caused by retention and subsequent access to data by law enforcement authorities requires a limitation of law enforcement's possibility to access data in order to be used for the purpose of criminal proceedings only to specified crimes”, the Court stated. “It is the task of the legislator to specify which crimes should be included. The legislator should take into account situations when public interest prevails and base the enumeration of crimes on this evaluation. Same principles underlie the limitations of wire tapping legislation.”, the Court added in a later part of the decision.
Concerned persons should be informed about the interference with their rights and should have the possibility of a legal remedy. Such a remedy must allow the review of law enforcement's actions. The exception to this rule can be established only on the basis of statutory grounds and the legislator must guarantee that communication of such information will not be arbitrary and will be subject to judicial review. Furthermore, the Constitutional Court recommends further specification of rules and formal requirements of law enforcement's requests to access the data (in the opinion of EISi, this requirement could be satisfied by introduction of standardized forms).
Although the Constitutional Court did not express a violation of the Charter of Fundamental Rights of the European Union, the decision stressed the fact that national data retention legislation is subject to the regime of the EU Charter. Hence, it considered the case-law of the Court of Justice of the European Union binding.
The disputed provisions, which were found to be in contradiction with the fundamental right to privacy, lost their effectiveness on 26th June 2015, after the finding of the court was published in the Collection of Laws. The Slovak legislator, the National Council of the Slovak Republic, now has 6 months to prepare a new version of provisions that will be compliant with the fundamental rights and guidelines established by the Constitutional Court.
“We would welcome if the legislator would cooperate more thoroughly with the non-profit sector. NGOs in this area have capabilities to advise on this issue. The legislator should take their arguments into account when enacting a new and compliant legislation”, notes Ľubomír Lukič, a member of EISi, who co-wrote the original submission to the Constitutional Court.