Portugal / Constitutional Court / 403/2015 and 773/15 Appraisal of the constitutionality of a Decree passed by the Parliament

Key facts of the case:

The President of the Republic asked the Constitutional Court to make an appraisal of whether Article 78 (2) in Parliamentary Decree 426/XII entitled “Legal System of the Republic’s Information System”  conformed to Article 34 (4) in the Portuguese Constitution. The rule in question (in the Decree) states that the information-service officials from the Security Information Service and the Strategic Defence Information Service may, under determined circumstances, gain access to banking and tax data, data on communication traffic, locality or other data connected with communications that are needed in order to identify the subscriber or the user, or find and identify the source, destination, date, time, duration and type of communication, as well as identify the telecommunication facilities or its locality whenever deemed necessary, suitable and proportional in a democratic society, with the aim of fulfilling the legal attributes of the information services by achieving the compulsory prior authorisation of the Prior Supervisory Committee

For its part, Article 34 (4) in the Constitution states The interference of public authorities in the correspondence, telecommunications and other means of communication, is forbidden, except in cases related to criminal proceedings, as foreseen in the law. 

Outcome of the case:

In answering the first questions it raised, the Constitutional Court affirmed that forbidding to interfere in the communications as laid down in Article 34(4) in the Constitution, covers the traffic data referred to above; it also covers the exception mentioned in the final part of the provision which may only occur within the framework of the legal prediction relative to the criminal proceeding (the exception that is constitutionally acceptable). In quoting jurisprudence and doctrine on the subject, the Constitutional Court namely indicated that the necessities of making a criminal investigation and of obtaining evidence justify reducing individual rights to the communication in question. However, such necessities lack the legal authorities’ evaluation in terms of needs, suitability and proportionality in such a way that they violate the principle of the least possible interference and principle of proportionality. Therefore, any evidence thus obtained may be considered null and void (Article 32(8) in the Constitution, and Article 189 in the Code on Criminal Procedure. Indeed, notwithstanding the quality of its members, the Prior Supervisory Committee (Comissão de Controlo Prévio) is not a legal authority; rather, it is an administrative body so that its intervention is not included in the sphere of a criminal proceeding

In these terms, the interference in communication data laid down in Decree 426/XII does not happen within the framework of safeguards assuring protection in a criminal proceeding, akin to the coverage  found in the Constitution (in Article 32). This being the case, the Constitutional Court deemed unconstitutional Article 78 (2) of Parliamentary Decree 426/XII that “Passes the Legal System of the Portuguese Republic’s Information System”, owing to the fact that it breached Article 34 (4) in the Constitution. This judgement was accompanied by two explanations of vote, one of which defeated.
Paragraphs referring to EU Charter: 
Within the context of the European Union, it suffices to mention Articles 7 and 8 of the Charter of Fundamental Rights. It should be noted that even before producing binding effects, the Court of Justice of the European Union had already proclaimed the existence of a general principle of community law that enshrines protection against arbitrary or disproportionate intervention by public authorities in the private activities of a legal singular or collective person (Judgement  of 22/10/2002, Roquette Frèrres, case C-94/00).

Currently, Article 7 of the Charter of Fundamental Human Rights lays down the respect for private and family life, and it is based on other international rules; it states that Everyone has the right to respect for his or her private and family life, home and communications. In terms of Article 52 (3) in the  European Charter of Human Rights, this right has the same meaning as that in Article 8 in the Charter. For its part, Article 8 in the ECHR contains a specific rule about the protection of personal data, whereby such protection is expressly and independently enshrined in Article 7. The rule in Article 8 (1) states that Everyone has the right to the protection of personal data concerning him or her. The Court of Justice of the European Union referred to the fact that this right is inseparably linked with the right to respect for private life (Judgement of 09/11/2010, Volkerund Markus Schecke, Cases C-92/09 and C-93/09). On the other hand, the CJEU also clarified that protecting data on communication traffic is covered by the sphere safeguarding this fundamental right (as per the Judgement of 08/04/2014, Digital Rights Ireland Ltd., cases C-293/12 and C-594/12, that annulled Directive 2004/26/EC for violating Articles 7 and 8 in the Charter of Fundamental Human Rights). 

Deciding body (original language): 
Tribunal Constitucional (TC)