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Slovakian data retention law faces challenge before Constitutional Court

12 October 2012

12.10.2012 - MPs in Slovakia have launched a legal challenge against the national law implementing the EU's Data Retention Directive, arguing that it is disproportionate and incompatible with the rights to privacy, data protection, and freedom of speech.

The Data Retention Directive (2006/24/EC) obliges telecommunications providers in EU Member States to store numerous types of information that allow the authorities to "retrace telephone and internet behaviour of all persons in the EU", [1] with information stored for a minimum of six months and a maximum of two years.

The complaint asks the Slovak Constitutional Court to examine whether the law implementing the Directive in Slovakia, along with two further laws dealing with access by the authorities to retained data, [2] are compatible with constitutional provisions on proportionality; the rights to privacy and protection against unlawful data collection; the right to private correspondence; and the provision granting freedom of speech.

It also argues that data retention infringes provisions guaranteeing privacy, data protection and freedom of expression in Slovakian human rights law, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union.

The complaint, prepared by the European Information Society Institute (EISI), has been filed with the Constitutional Court by a group of 30 MPs belonging to parties across the political spectrum - Freedom and Solidarity, Ordinary People, the Christian Democrats, and the Democratic and Christian Union. [3]

"We believe it [the Data Retention Directive] is a highly privacy intrusive tool, which, according to the recent criminological studies, does not even work," said Martin Husovec of the EISI.

He added: "Data retention is an unfortunate experiment with the privacy of European citizens."

The EISI has twice previously attempted to file complaints about data retention before the Slovak Constitutional Court, but the cases were rejected.

This left the organisation "no other option than to prepare the template submission before the Constitutional Court ourselves and address the MPs," said Husovec.

Lubomír Lukic of the EISI is "convinced that we will soon see the result of our effort in the form of the Constitutional Court ruling, which will cancel the objected provisions and stop the retention of this sensitive data in Slovakia." [4]

Although there is no defined time limit in which the Constitutional Court is required to rule on the complaint, there are "no procedural obstacles," said Husovec, and a ruling "should be delivered within two years."

The Constitutional Court can however file a reference with the European Court of Justice in order to ask for a preliminary ruling, which would likely see the case taking longer, although there is currently no indication that this route will be taken.

In July, a case brought by the group Digital Rights Ireland at the High Court of Ireland was referred to the European Court of Justice, in order to obtain a preliminary ruling on the validity of the Data Retention Directive with the rights to privacy, data protection, freedom of expression, free movement and good administration. [5]

National implementation of the Directive has also run into legal trouble in Austria, Bulgaria, the Czech Republic, Hungary and Romania, although many of those states have now transposed the law.

One Member State proving intransigent on the issue is Germany, where the Constitutional Court in March 2010 rejected a national law implementing the EU legislation, which all Member States were supposed to have transposed by March 2009. The European Commission is now suing Germany for failing to introduce new legislation. [6]

Sweden too faced threats of a legal challenge from the Commission, until the country's parliament passed an implementing law in March this year. [7]

The controversy caused by the Data Retention Directive led to promises from the Commission that it would be reformed, although this has now been put on hold. A new EU data protection regime will be established before the Directive is revised at the same time as a conflicting piece of legislation, the e-Privacy Directive.

Previous coverage
- MANDATORY DATA RETENTION: Commission takes action against Germany, June 2012
- EU: Revision of Data Retention Directive put on hold with "no precise timetable" for a new proposal, August 2012
- EU: Commission still seeking proof of the necessity of mandatory data retention, January 2012

Sources
[1] Opinion of the European Data Protection Supervisor on the Evaluation report from the Commission to the Council and the European Parliament on the Data Retention Directive, 31 May 2011
[2] The provisions covered by the challenge are § 58(5), (6), (7)(a), § 63(6) Act No. 351/2011 Coll. on Electronic Communications - data retention; § 116 Penal Procedure Act (Act No. 301/2005 Coll.) - access to retention data; and § 76(a)(3) Police Corps Act (Act No. 171/1993 Coll.) - access to retention data.
[3] See here for a full list of MPs supporting the case.
[4] EISI, Data retention before the Slovak Constitutional Court, 11 October 2012
[5] Case before the Court of Justice of the European Union C-293/12, 20 July 2012; Digital Rights Ireland, High Court decision on our data retention challenge, 5 May 2010
[6] EU to take hard line on German resistance to data storage, Reuters, 29 May 2012
[7] Swedish parliament passes controverial data storage bill, EUbusiness, 21 March 2012