Cyprus / Supreme Court of Cyprus, Primary Jurisdiction / Civil application No. 228/202
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Cyprus / Supreme Court of Cyprus, Primary Jurisdiction / Civil application No. 228/202
Key facts of the case:
Ιn 2019 the District Court issued an access order authorising the police to access, inspect and receive all communication content from the applicant’s phone in order to investigate serious crimes. The applicant filed for an order of certiorari, seeking to cancel the access order which the district court had granted to the police and to prohibit the use of his data as testimony in the court case against him before the Assizes Court. The applicant argued that the legal provisions on which the access order relied, namely the national data retention law,18 had been rendered invalid by a 2021 Court decision, which ruled that they infringed Directive 2002/58/EC and the applicable Union jurisprudence.19 The Attorney General challenged the application for certiorari, on the ground that the access order had not relied on the data retention law but on another law for the protection of the confidentiality of private communications20 which has nothing to do with the data retention law. The Attorney General argued that the law on confidentiality of communications provides access to telephone data in a targeted manner, when the telephone equipment is in the possession of the police following a court order to that effect, only when there is reasonable suspicion that a come was committed and the private communication is relevant; as a result the CJEU rulings which invalidated the data retention law do not apply to this law, as they relate only to preventive retention of data.
Key legal question raised by the Court:
Whether the limitations to the right to privacy were necessary, the measures taken were less invasive than other alternatives and there were effective safeguards in place. A measure which affects rights may be justified in the context of combating crime but it must be proportionate and not exceed what is absolutely necessary.
Outcome of the case:
The Court rejected the Attorney General’s argument and ruled that access order granted to the police had relied on both the data retention law and the law on the confidentiality of communications. The data to which the police was given access had been retained by the service provider in accordance with the data retention law and such retention had been found to violate Union law. The Court concluded that the two laws are interconnected and that the aim of the law on confidentiality of communications cannot be served without the data retained under the data retention law.
- Paragraphs referring to EU Charter
- Paragraphs referring to EU Charter (original language)