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Lower Court of Târgoviște and Lower Court of Constanța invoked the unconstitutionality of Law 82/2012 on data retention

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Deciding Body:
Romania / Constitutional Court
Type:
Decision
Decision date:
08/07/2014

Key facts of the case:

The Courts of Constanța and Târgoviște addressed the issue of the constitutionality of the new law on data retention, Law 82/2012 (Legea privind reținerea datelor generate sau prelucrate de furnizorii de rețele publice de comunicații electronice și de servicii de comunicații electronice destinate publicului) and of Article 152 of the Criminal Procedure Code (Codul de procedură penală, CPP), to the Constitutional Court (Curtea Constituţională a României, CCR) as a result of two requests from the providers of communication services for authorisation to transmit traffic data to public bodies investigating cases. The new law on data retention allowed access for public authorities to traffic and identification data for the purpose of criminal investigation, but the focus was on the obligation imposed by the law to collect and store for a period of six months personal data related to the communications, locations and social interactions of every subscriber. This obligation raised concerns in relation to protection of the rights to privacy, freedom of expression and secrecy of correspondence, as well as in relation to the presumption of innocence, setting as a rule what should be the exception but leads towards the practice of mass surveillance.

Outcome of the case:

The constitutional court:


1. Admits the exception of unconstitutionality raised by the Constanta Court Criminal Section, ex officio, in File no. / 2012 regarding the retention of data generated or processed by providers of public electronic communications networks and providers of electronic communications services intended for the public, as well as for amending and supplementing Law no. 506/2004 on the processing of personal data and protection of privacy in the electronic communications sector is unconstitutional.

2. Rejects as unfounded the exception of unconstitutionality raised by the Constanta Court Criminal Section, ex officio, in File no.11972 / 212/2014 and finds that the provisions of art.152 of the Code of Criminal Procedure are constitutional in relation to the criticisms made.