Key facts of the case:
The Constitutional Court (CC) (Конституционен съд, КС) was seized by a petition by the Ombudsman of the Republic of Bulgaria (Омбудсман на Република България) to declare unconstitutional several provisions of the Electronic Communications Act (Закон за електронните съобщения). The provisions which transposed the Directive 2006/24/EC in Bulgarian law were invalidated by a judgement of the CJEU. These provisions concerned issues like grounds for data retention requests, authorities making such requests and judicial control.
Outcome of the case:
The provisions were declared unconstitutional in their entirety. The court ruled that, despite the fundamental nature of the fight against serious crime, it could not justify unlimited interference with human rights.Therefore, each solution in the area should strike the balance between individual and public interest.
According to the Constitutional Court Act (Закон за Конституционния съд) (Art. 22, Par. 2) acts declared unconstitutional are not applied. The unconstitutionality is pronounced ex nunc. The Constitutional Court declared unconstitutional only the provisions at stake, not the overall Electronic Communications Act.
... Justifying his stance on the unconstitutionality of the impugned provisions, the Ombudsman mentions the Judgment in Joined Cases C-293/12 and C-594/12 of 8 April 2014, invalidating Directive 2006/24/EC, transposed in Bulgarian law by amendments in the Electronic Communications Act (Закон за електронните съобщения), due to it being non-compliant with Art. 7, Art. 8 and Art. 52, para. 1 of the Charter of Fundamental Rights of the European Union. The Ombudsman mentions also the relevant case-law of the Constitutional Court.
The Constitutional Court took into account that the petition challenges a law, which violates fundamental personal rights of citizens – inviolability of personal life and freedom and secrecy of correspondence and other communications – Art. 32, para. 1 and Art. 34, para. 1 of the Constitution. Those rights are also protected by a number of international acts Bulgaria is a party to – Art. 12 of the Universal Declaration of Human Rights, Art. 5 and 17 of the International Covenant on Civil and Political Rights, Art. 7, Art. 8 and Art. 52, para. 1 of the Charter of Fundamental Rights of the European Union, Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In view of the identical nature and content of those rights in their constitutional regulation and in the texts of the above-mentioned international acts, the latter two being part of EU legislation, the Court finds that, controlling the constitutionality of the impugned provisions of the Electronic Communications Act, it will also have to deliberate on those international norms, their principles and standards, as well as the relevant case-law of the European Court of Human Rights. This is no precedent for the work of the КС, as seen from some of its previous judgments.
We have to state here that Bulgarian legislator has gone substantially beyond the requirements of Directive 2006/24/EC (Art. 1, par. 1), largely criticised in theory and practice. Talking about access to traffic data, the Directive limits it only to the cases of ‘investigation, detection and prosecution of serious crime, as defined by each Member State in its national law’. Undoubtedly, we should apply here the legal definition of ‘serious crime’ within the meaning of the Criminal Code. Interpreting the regulations of the impugned Directive and assessing their compliance with the principles of the Charter and the ECHR and justifying its stance on the Directive’s shortcomings, the CJEU also talks in its judgement about the scope of the concept of serious crime, where forms of organised crime and terrorism undoubtedly fall.
6. The Constitutional Court finds it necessary to specifically state that, in itself, the retention of telecommunications traffic data does not constitute an activity, prohibited by Constitution or such to be condemned due to violating the fundamental rights of citizens, regulated by the Charter and the ECHR. This conclusion follows from the comprehensive assessment of the type and characteristics of data to be retained and, on the other hand, the existence of an undoubtedly legitimate aim of common interest both for the Union and the national states.
That is why the Constitutional Court finds that the impugned legislative regulation for elimination of judicial control over the requests for access to traffic data by a pre-trial authority contradicts the standards, set by the Constitution, the Charter and the ECHR.