In The Matter Of An Application For Annulment Of Part Of Electronic Communications.

Original Language Title: ve věci návrhu na zrušení části z. o elektronických komunikacích

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=74068&nr=94~2F2011~20Sb.&ft=txt

94/2011 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court under the SP. zn. PL. ÚS 24/10 decided on 22 November. March 2011 at

plenary in the composition of Stanislav Duchoň, Franz Package, Vlasta Formankova,

Turgut Güttler, Pavel Holländer, Vladimir Crust, Dagmar Lastovecká, Jan

Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Výborný and Eliška

Wagner (Judge-Rapporteur) on the proposal for a group of members of the

the Chamber of deputies of the Parliament of the United Kingdom, represented by Member of the Mark

Benda, located Prague 1, House 4, on the repeal of § 97 para. 3 and 4

Act No. 127/2005 Coll., on electronic communications and amending

some related laws (Act on electronic communications),

as amended, and the annulment of Decree No 485/2005 Coll. on

the range of traffic and location data, the time of their storage and

the form and the manner of their transmission to the authorities entitled to their use,

with the participation of the Chamber of Deputies and the Senate of the Parliament of the Czech Republic as

the parties to proceedings



as follows:



The provisions of § 97 para. 3 and 4 of Act No. 127/2005 Coll., on electronic

roads and amending certain related laws (the law on the

electronic communications), as amended, and the Ordinance

No 485/2005 Coll., on the extent of the traffic and location data, time

their preservation and the form and method of transmission to the authorities of the eligible

to their use, shall be abolished on the date of publication of this finding in the collection

laws.



Justification



(I).



Recap of the proposal



1. A group of 51 deputies of Parliament of the United Kingdom

the proposal sent to the Constitutional Court on 26 April. 3.2010 annulment

the provisions of § 97 para. 3 and 4 of Act No. 127/2005 Coll., on electronic

roads and amending certain related laws (the law on the

electronic communications), as amended, (hereinafter also

' the contested provisions ') and Decree No 485/2005 Coll., on the extent to

traffic and location data, the time of retention and the form and

the method of transmission to the authorities entitled to their use, (the

"the contested Decree" or collectively, "challenged the legal

adjustment ").



2. Even if the proposal meets the formal requirements of the article. 87 para. 1 (b).

and the Constitution of the United States and) § 64 para. 1 (b). b) Act No. 182/1993

Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the law of

The Constitutional Court "), the Constitutional Court considered it necessary to underline that the

Institute of design on the repeal of the law or its individual provisions

According to the article. 87 para. 1 (b). and the Constitution of the United States), served by a group of

members of Parliament or senators pursuant to § 64 para. 1 (b). (b)) of the Constitutional

the Court, inter alia, a manifestation of the principle of the protection of constitutionally guaranteed

minorities (article 6 of the Constitution of the Czech Republic) and serves primarily as one of the

instruments of the protection of parliamentary minority (opposition) against the possible arbitrariness

(or arbitrary rule) in the decisions taken in the context of parliamentary majority

the legislative process based on the principle of majority decision-making

[cf. report of the Venice Commission to CDL-AD (2010) 025 "



Report on the role of the opposition in a democratic parliament

"of 15 October. 11.2010, that right of parliamentary opposition

the claim of constitutional review, the majority of the decisions taken (laws)

includes the most basic rights of the parliamentary opposition between]. In other words,

submission to qualified by an impartial and independent Constitutional Court is

often the last option, how can any parliamentary minority

arbitrary decisions (or arbitrary rule) in the making, as the parliamentary majority to defend

representatives of the parliamentary opposition in Parliament as to their number of

as a rule, find themselves in a numerical minority, and so they do not have effective

the means to adopt such a decision (to issue normative

legal Act) in the context of the legislative process to reverse or change. On the contrary,

representatives of the parliamentary majority with such efficient means as a rule

and if they have doubts as to the accuracy, fitness, or even about the

constitutionality of the accepted (or previously accepted) decision, it is not only their

law, but also a duty to use for this purpose (see the promise

According to the article. 23 para. 3 of the Constitution of the Czech Republic). Institute of the lodging of the

repeal of the law or of the provisions referred to in article. 87 para. 1

(a). and the Constitution of the United States) to the Constitutional Court and in no case

It does not serve as a means to obtain a kind of "testimonials" or professional

the opinion of the Constitutional Court to the parliamentary majority adopted the decision

even as a tool, which is a manifestation of the political or even

the campaign of the fight from the parliamentary land to the Constitutional Court. In

the case under consideration not only that a group of plaintiffs consists in particular of the

the representatives of the political parties, which are currently involved in, and also in the

the time of the submission of the proposal were involved in the exercise of government power and in the Parliament

The United States should have and also have the majority necessary to

change the contested legislation, but in addition, the Constitutional Court and it can not

leave critical comments, the vast majority of its too (!)

the vote during the legislative process for the adoption of the contested legal

Edit directly. In such cases, the use of it (dirty) by the constitutional

the Court was forced to proceed in the future to the rejection of the proposals received in this way.



3. The nature of the objections, the appellants themselves were summed up by collecting and

the use of traffic and location data on telecommunications traffic in the

the extent in which it defined by the contested provisions and challenged

the Decree, they represent a fixed intervention into fundamental rights

referred to in the Charter of fundamental rights and freedoms ("the Charter") and in

Convention for the protection of human rights and fundamental freedoms (hereinafter referred to as "the Convention"),

specifically, the fundamental rights guaranteed by the article. 7 (2). 1, art. 10, paragraph 1. 2 and

3 and article. 13 of the Charter and article. 8 of the Convention. According to the appellants, this intervention may be

In addition, be regarded as infringing the essential elements of democratic

the rule of law, to which you can assign and the principle of proportionality in the sense of

article. 4 (4). 4 of the Charter. The appellants their claims to back up the following

arguments.



I and) collection of data on communication as an interference with the private life of



4. The content of the relevant provisions is the requirement for natural and

legal entities, that provide a public communications network or

providing publicly available electronic communications service (that is,

primarily Internet providers and telephone operators

connection), for a period of 6 to 12 months to retain traffic and location

details (dozens of data) on all telephone and fax communication,

e-mail and SMS communications, visits to the website and use of the

Some Internet services, specified in the contested Decree, and on

the request shall provide the legitimate authorities. According to the appellants '

the above information, the collection, storage and transmission of

public authorities undoubtedly fall under the protection of the article. 8 of the Convention. In this

context pointed to a variety of decision of the European Court of

human rights (hereinafter "ECHR") and the Constitutional Court.



5. The appellants are of the opinion that intervention into fundamental rights are

does not understand just the immediate intervention (e.g. getting held

data), but also such measures of the State authorities, which are

a considerable risk of limitation of fundamental rights, which can occur at any time.

The retention of traffic and location data than can be considered as

such action, since these data are continuously stored and the State

authorities are available, and you can in the future according to the respective

regulations to request and use. The above sets of data retention with

carries a latent risk of other immediate intervention of State

authorities. Additionally, you cannot overlook that the State does not retain operational and

location data itself, but the use of private persons providing

telecommunications services, with the risk of possible misuse of retained

data of a large number of private persons moving in the area of

telecommunications services is higher than their retention by the State.

One of the basic requirements of the ECTHR interpretation of terms developed by the

the legal background of State interference in private life is

predictability and availability of this legal base. This is because the

legitimate and logical request that individuals had been familiar with the

circumstances where the State may exceptionally, in their private life

hit, and to adapt their conduct to this intervention

It was possible to avoid. Area character of the retention of traffic and

location data, however, such a possibility limits up to.



6. According to the appellants, the objectives, as well as probable and anticipative

the benefits resulting from the obligation to retain traffic and location data

in comparison, the United intervention into fundamental rights of the persons concerned in

gross disparity. Therefore, in accordance with article 7(2). 8 (2). 2 the Convention proceeded to

assessing the proportionality of the measure, which they rated from the

in terms of severity and extent of the interference with the fundamental rights of individuals, in


the present case, the right to privacy, with regard to the legitimacy of the objectives to

which has a restriction of fundamental rights to serve, and in terms of the contribution of

These interventions. Last but not least its use confronted with

dangerous aspects that are associated with it, in particular, the risk of

misuse of retained data.



I. B) Severity and extent of the interference with the right to privacy



7. first, the appellants submitted that the introduction of the obligation to retain

traffic and location data represents a serious interference with private life,

because these data open wide possibilities of their use and their

combine with other information can cause very significant consequences for the

the private life of the persons concerned. The obligation to retain traffic and

location data to the extent it has the effect of excluding virtually

the existence of an uncontrolled and not monitored telecommunications, which should be

be regarded as a particularly intense invasion of privacy of all persons

using telecommunication devices (telephony, use of the services

the Internet), which are now no longer used only to communicate

among men, but affect a wide range of daily activities

(shopping, banking, education, medicine, etc.). From

the stored data can be inferred as a host of other (in many cases

very sensitive) data and information on the person and its privacy. In

a number of cases the identity of the addressee of the call can be or reveal e-mail

a sensitive indication of the sender (for example. If the addressee of the

doctor-specialist), similarly, can be visited websites

find out about názorovém opinion, State of health or

sexual orientation of that person. A large amount of information can be obtained

also from the location data on the movement of the mobile phone (or

its holder), especially in combination with location data on the movement of

other cell phones (an indication of who is where and when with whom he met

etc.). On the basis of stored data so you can build communication and

the motion profile of the individual, from which to obtain not only information about its

past activities, but with a high degree of probability and correctly

predict its activity in the future, which also represents a significant

interference with the right to privacy and correspondence of individuals.



I. C) the legitimacy of the goals and benefits of the interference with the fundamental rights of the



8. Furthermore, in its proposal, the appellants were arguing with the legitimacy of the objective

the adoption of the contested edits. From the explanatory memorandum of the Government to the provisions of § 97

the law on electronic communications, it follows that the purpose of the provisions of § 97

is to face the increasing security risks and ensure the safety and

defence of the Czech Republic, with more detailed reasons. The appellants

are of the opinion that pursuant to article. 8 (2). 2 of the Convention is the invasion of privacy

the permissible in relation to the crime only if it is used to

the prevention of crime. "Preventive, general storage

telecommunications data without the existence of a heading, in particular

in the past, and can therefore serve mainly to clarify the already committed

criminal offences. " (p. 13). Invasion of privacy in order to clarify already

committed a criminal offence is so according to plaintiffs in breach of article. 8

Of the Convention. In addition, information is retained without the existence of a particular

suspicion. Through the lens of the contested provisions is so each person is considered

accused without the existence of specific circumstances that should this

suspicion is justified, which is inadmissible under the rule. The appellants

also pointed out (with reference to specific cases from abroad) on the

the fact that the evaluation of the data concerning telecommunications traffic with each other

It also brings the risk of their misinterpretation and suspicion or

allegations of an innocent person. May cause confusion of the person who

communication actually carried out, such as with a person. has concluded the contract with the

the telephone operator or ISP.



9. the authors of legislation or jurisdiction resort State administration

According to the appellants ' allegations failed to provide information about it, in how many and in what

cases before the introduction of the contested legislation, which carries with it the

the huge increase of stored data for the quantitative and possible access to

them, ztroskotávalo the investigation, detection and prosecution of serious

crime on the impossibility of obtaining the data required for the reason that no longer

such data is not available. Also it is not established whether the anchoring

the obligation to keep all information on telephone and electronic

communication will lead (or have already led) compared to the previous editing

Indeed, to improve the investigation, detection and prosecution of serious

crimes and to deter threats, to increase the percentage of objasněnosti

of criminal offences or to the reduction of crime, etc. Furthermore, the question is how

old data are required, the competent authorities and to the extent it is necessary to

retain traffic and location data for 6 months and longer. The intervention of the

In addition, privacy, paradoxically, may often relate to persons who, on the

serious crime were not involved, than the people who commit it, and

Therefore, they have an increased interest in the implementation of anonymous communication. According to the

claimants can expect that data retention can help to populate the

the objectives set in the rather small extent and in less important cases, and

Therefore, you cannot expect a long-term and positive impact on the reduction of crime

and increased safety in connection with the use of telecommunications

resources.



I. D) the risk of misuse of retained data



10. Similarly, according to the plaintiffs, should take account of the risk

illegal use and misuse of retained data, since in such a large

number of companies that provide telecommunications (especially in the case of

mobile communications and the Internet), you cannot expect a corresponding hedging

These traffic and location data. Therefore, it is necessary to examine

realistic and technically the existing options of their use. The contested legal

According to the plaintiffs, the adjustment does not provide, and the conditions under which they have

data is kept, and the conditions for their use of the legitimate authorities,

nor does not guarantee individuals no safeguards against their abuse.

The impugned legislation is so recorded extensive use of the relevant

databases in terms of both the amount of data that will be gathered, and

numbers of subjects that they will be entitled to, and also allows you to

expanding the purposes for which the indicator will be used. The very real is

the appellants also risk of abuse of traffic and location data

from third parties. Persons who may exploit such personal information,

they are very often the employees of companies or Government agencies that

data are processed, but also other persons (e.g., hackers).



I. E) for a preliminary ruling to the European Court of Justice



11. At the conclusion of its proposal, the appellants expressed their belief that even though it is

the contested legislation by modifying the national, which is should be

apply the criteria arising from the constitutional order of the Czech Republic,

It is at the same time on the issues, whose origin stems from the community

rights, specifically from the transposition of the directive of the European Parliament and of the Council No.

2006/24/EC (hereinafter referred to as "data retention directive") to the rule of law

Of the Czech Republic. For the same reasons, therefore, the amount of divorced

the plaintiffs presenting menus to the Constitutional Court to consider the possibility of submitting

European Court of Justice in accordance with article 6(1). 234 of the EC Treaty a preliminary

question about the (non) validity of the directive on data retention,

Since there is a significant risk that the Directive in question, which was

the challenged provisions and the contested Decree enacted in the Czech

the rule of law is contrary to EC law.



II.



Recap of the observations of the parties



12. The Constitutional Court pursuant to the provisions of § 42 para. 4 and section 69 of the Act on the constitutional

the Court sent the application for annulment of the contested provisions and

the contested Decree, the Chamber of Deputies and the Senate of the Czech

the Republic and the Ombudsman.



13. The Chamber of deputies of the Parliament of the United Kingdom, represented by

Chairman Ing. M. Ethiopian, in its comments of 26 March. 4.2010 in detail

describe the procedure for the adoption of the governmental draft Act amending Act

No. 127/2005 Coll., on electronic communications and amending certain

related laws (the law on electronic communications), as amended by

amended, on the basis of the contested provisions become

part of the law on electronic communications No. 127/2005 Coll. (closer

see part IV of the award). The content of the Government's draft law, moreover,

the Commission noted that in the explanatory memorandum, the Government explicitly stated that

the present draft law is in line with the constitutional order and the legal

order of the Czech Republic and is not contrary to international treaties by which it is

Czech Republic is bound. From the same conviction relied in its

the hearing and the Chamber of Deputies. It is so on the Constitutional Court, in order to

to assess the constitutionality of the contested provisions.



14. The Senate of the Parliament of the United Kingdom, represented by its Chairman MUDr. P.

Sobotka, in its observations of 28 June. 4.2010 after extensively


an account of the appellants ' argument contained in the proposal under consideration,

It also described the procedure of reception of the governmental draft Bill

The Senate (see part IV of the award). During its consideration of the further

He stated that both the Committee on economy, agriculture and transport, and in the

The Permanent Commission of the Senate for the media, and later the full Court

The Senate Bill was introduced as an additional amendment in response to the

the obligation to transpose the relevant United States EC directive to our

the rule of law. The obligation of telecommunications operators, Internet

providers and others who work in the field of electronic communications,

maintain for at least 6 months of positioning and operating data was

the presenter stressed that "in no case is not about something

one might liken to wiretapping, if only because they do not store

the contents of individual phone calls or messages, and because of

Internet services (...), shall be kept only for localization and operating

information, i.e., technical data ". The Senate of that fact when discussing the

the draft amendment to the Act in question and on the basis of recommendations accepted

of the Committee and of the Standing Committee of the Senate to the media Bill

approved as adopted by the Chamber of Deputies. It is therefore only at the

The Constitutional Court, that the proposal to repeal the relevant provisions of the law on

electronic communications, to assess and definitively decided.



15. The Ombudsman JUDr. Otakar Motejl his expression of

12.4. 2010 said that after reviewing the submitted proposal, with

proposals presented arguments ... and, therefore, does not enter into the procedure for

the cancellation of the contested Decree before the Constitutional Court.



III.



The abandonment of an oral hearing



16. According to the provisions of § 44 para. 2 of the Act on the Constitutional Court may by the constitutional

the Court, with the consent of the participants refrain from oral proceedings, if, from the

This meeting to expect further clarification of the matter. The Constitutional Court therefore in

accordance with this provision, requested by the parties, a statement whether the

agrees with the abandonment of the oral proceedings. The appellants and the Senate

The Parliament of the United Kingdom expressed consent, the Chamber of Deputies

The Parliament of the United Kingdom on challenge within the time limit specified in no way

He did not react. From the oral proceedings could be so in the present case

abandoned.



IV.



The constitutional conformity procedure the adoption of the contested provisions of the Act and

legal conditions of acceptance of the contested Decree



17. in proceedings for review of the standards referred to in article. 87 para. 1 (b). and) of the Constitution

The United Kingdom within the meaning of § 68 para. 2 of the Act on the Constitutional Court must

The Constitutional Court must first examine whether the law in question was adopted and issued

constitutionally prescribed way [to review in proceedings for review of

standards see section 61 award SP. zn. PL. ÚS 79/06 of 15 July. 2.2007 (N

30/44 SbNU 349; 37/2007 Sb.)]. In the case of a contract or law

regulations, namely the decrees of ministries, the Constitutional Court under section 68

paragraph. 2 of the Act on the constitutional court assesses whether they were adopted and published in the

the limits of the Constitution of the United States set the permissions (article 79, paragraph 3,

The Constitution of the United States). whether they have been released "



ultra vires

“.



18. From the observations of both chambers of the Czech Parliament, connected

annexes and documents available electronically (resolutions and publications

available in the digital library on the website of the Chamber of Deputies

and the Senate, on www.psp.cz and www.senat.cz), the Constitutional Court found

the following: the contested provisions § 97 para. 3 and 4 became part of the

Act No. 127/2005 Coll., on the basis of Act No. 247/2008 Coll., amending

amended Act No. 127/2005 Coll., on electronic communications and amending

some related laws (Act on electronic communications),

in the wording of later regulations. The proposal submitted to this law of the

the Government of the United Kingdom House of Commons on 16. 1.2008, with its proposed

the hearing so that it could agree to the Chamber of Deputies

already in its first reading. The proposal was circulated to members on 18 July 2005. 1.2008 as

House print no 398/0-amendment to the Act on electronic communications-

The EU. In the first reading, which took place on 30. 1.2008 at 27. meeting,

The Chamber of Deputies did not accept the cases so that it could with

agree to a Bill already in the first reading. The Bill was

subsequently commanded by to discuss the Economic Committee, ústavněprávnímu

Committee and the Committee for safety (resolution No. 593). The relevant committees to

discuss and their resolution with amendments was to members

delivered as prints no 398/1, 398/398/2 and 3. Only amendments

the Committee for safety-related and the contested provisions of § 97 para. 3

(third and fifth sentences). On the 28th. a meeting of the Chamber of Deputies, on 20.

3.2008 and 25. 3.2008 held a second reading, the Bill passed the General and

a detailed debate, during which the contested provision (section

paragraph 97. 3 the third and fifth sentences and § 97 para. 4) submitted amendments

even on the part of individual members of Parliament (amendments from.

Bebarové-Rujbrové, k. Jacques and j. Klase). Filed amendments

have been processed as printing 398/4, which was circulated to members on 25 April.

3.2008. The third reading took place on 23. 4.2008 on 30. the meeting of the

the Chamber of Deputies. The proposed amendments to the contested provisions of section 97

paragraph. 3 and 4 were adopted. The Bill was amended by the other

approved amendments adopted (resolution No. 736), after having

the Chamber of Deputies agreed to him, when the present 176

MPs and MPs voted for the proposal, against 89 21, 66

(vote no. 44).



19. The Bill was referred to the deputies of the Senate

on 19 December. 5.2008. The Organizing Committee of the Senate as Senate document no no 247

indicated to the Committee for economy, agriculture and transport.

In addition, a draft law discussed the Permanent Commission of the Senate for the media

resources. Committee at its meeting of 28 June. 5.2008, adopted resolution No.

270, in which it recommended the Senate to approve the Bill. Also The Permanent

the Senate Commission for media, recommended the Senate Bill

approved (resolution No. 22 of 4 February. 6.2008). The Senate Bill

discuss on 5 July 2004. 6.2008 at its 14. meeting (6th term) and adopted the

draft resolution No. 402, which approved the Bill as amended by the

a transferred him to the Chamber of Deputies. For a resolution voted 38

senátorek and Senators of the 52 present, against 2, 12 (vote

# 29).



20. The law was delivered on 11 July. 6.2008 to sign the President of the Republic,

to 25 July. 6.2008. The law was approved after 30 June. 6.

2008 delivered to the signature of the Prime Minister. The law was promulgated on 4 December 2002. 7.2008 in

The amount of the collection of laws under no. 247 78/2008 Coll., with effect from the 1. 9.

2008.



21. The contested Decree No 485/2005 Coll., on the range of operating and

location data, the time of retention and the form and manner in which they

transfer of the authorities authorized to its use, was released

The Ministry of Informatics of the Czech Republic. The power ministries

legislate for the implementation of the Act is based on article. paragraph 79. 3

The Constitution of the United States. The material, however, is conditional on the existence of

explicit legal authorization and its limits. In the present case this

specifying just the contested provisions of § 97 para. 4 Act No. 127/2005

Coll., on electronic communications and amending some related

laws (the law on electronic communications). The Decree was signed

Minister for Informatics and duly published in amount under no. 169

485/2005 collection of laws with effect on the date of its publication, i.e.. 15.12.

2005.



22. The Constitutional Court notes that as Act No. 247/2008 Coll., which was

the Act No. 127/2005 Coll., inserted contested provisions challenged

Decree No 485/2005 Coll. was adopted by the Constitution anticipated manner.



In the.



The diction of the contested provisions of the Act and the contested Decree



23. The contested provisions of § 97 para. 3 and 4 of Act No. 127/2005 Coll. on

electronic communications and amending certain related laws

(Act on electronic communications), as amended,

shall be added:



"§ 97



(3) a legal or natural person providing a public communications network

or providing publicly available electronic communications service is

obligation to retain traffic and location data which are created

or processed in ensuring its public communications networks and

When you poskytovávání its publicly available electronic

communications ^ 37b). Traffic and location data relating to unsuccessful

call attempts is a legal or natural person providing a public

communications network or publicly available service

electronic communications shall be kept only if they are

data created or processed and stored or

recorded. Legal or natural person, operating and

location data in the first sentence and the second holds, is available upon request

shall, without delay, provide to the authorities is entitled to demand

under special legislation. At the same time, the person is required to


to ensure that the data in the first sentence and the second has not been stored content

messages. The retention period for these traffic and location data may not

be less than 6 months and no longer than 12 months. After this time is

person information referred to in the first sentence and the second holds, shall

discarded if authorized institutions were provided to their

demand according to a special regulation or this law provides otherwise (section

90).



(4) the extent of traffic and location data stored in accordance with paragraph

3, the period of retention provided for in paragraph 3 and the form and manner of their

transfer of the authorities authorized to its use, and the period of retention and

disposal of information that has been provided to the authorities entitled to

their request under a special legal regulation, lays down the detailed

legal prescription.



37B) European Parliament and Council Directive 2006/24/EC of 15 December 1999. March

2006 on the retention of data generated or processed in connection with the

the provision of publicly available electronic communications services or

of public communications networks and amending Directive 2002/58/EC ".



24. The contested Decree No 485/2005 Coll., on the range of operating and

location data, the time of retention and the form and manner in which they

transfer of the authorities authorized to its use, as follows:



"485/2005 Sb.



DECREE



of 7 November. December 2005



about the extent of traffic and location data, the time of their storage and

the form and the manner of their transmission to the authorities entitled to their use



Ministry of Informatics, in collaboration with the Ministry of the Interior shall establish

According to § 150 of paragraph 1. 3 of Act No. 127/2005 Coll., on electronic

roads and amending certain related laws (the law on the

electronic communications), as amended by Act No. 290/2005 Coll. and act

No 361/2005 Coll. (hereinafter the "Act"), for the implementation of § 97 para. 3 of the Act:



§ 1



For the purposes of this Ordinance, means the



and station base station BTS) a public mobile telephony network



(b) the base station StartBTS station) public mobile telephone network,

to which the participant is allocated at the start of the communication,



(c) the base station StopBTS station) public mobile telephone network,

to which the participant is allocated in their communication,



(d) the IMEI number international) identifier of the mobile phone

the device,



e) subscriber number in the MSISDN number of public mobile telephone network



(f) the IMSI number identifier) the participant's international public mobile

telephone network,



g) destinations specify the network of a foreign operator,



h) URI uniform resource identifier,



I) code of legal or natural persons providing public communications

network or publicly available electronic communications service

means the serial number of the certificate in the register of entrepreneurs according to § 14

the law.



§ 2



The scope of the retention of traffic and location data



(1) legal or natural person providing a public communications network

or providing publicly available electronic communications service

(hereinafter referred to as "provider") provides the authority competent to their

request (hereinafter referred to as "the legitimate authority") this Decree defined the operational

and location data (hereinafter "data").



(2) in the case of electronic communications networks with circuit-switched and fixed

the connection shall be kept



and) details of the communication made indicating the type of communication,

phone number of the caller and the answering or participant ID

phone cards for use in the public telephone, data and

the start time of the communication, the length of the communication, or the status of the communication,



(b) particulars of all public) payphones with details of their

phone number, registration number, geographic coordinates, and verbal

the description of the location.



(3) for the public mobile telephone electronic communications networks shall

store



and) details of the communication made indicating the type of communication,

phone number of the caller and the called subscriber, start date and time

communication, communication, the length of your IMEI number, the station number StartBTS,

where appropriate, the station number StopBTS, destinations and additional information



(b)) the data on mutual ties between the numbers and the IMEI numbers together MSISDN

used on your network, the identification of the BTS station, and your IMEI number, which

open up the call without a SIM card on the emergency call number "112",

The IP addresses of the terminals, which was mediated by sending SMS messages

the Internet, the date and time to recharge for prepaid services,

the numbers of the coupons to a recharging the phone number of the participant,

Subscriber's phone number to a specific charging the coupon,



(c) all stations) data on the BTS, indicating their numbers, geographic

coordinates, the azimuth angle of the antenna positions and verbalization location station

BTS.



(4) in the case of electronic communications networks with packet-switched

shall retain the information about carried out communication



and services) access to the network with an indication of the type of connection, the

the user account, the device identifier of the service user, date, and

the start time of the connection, the date and time of the connection, interest

identifiers (such as IP address, port number), the status of the event

(for example, success, failure, ordinary or extraordinary termination of the connection),

amount of data transferred (in an inbound/outbound),



(b)) for services to access electronic mail mailboxes with an indication of

the identifier of a user device, except the user account

the identifier of the message on the mail server, the start date and time

communication, the sender's e-mail address, electronic address

mail recipient, the e-mail protocol, the amount of

transferred data, information about how to use secure communications,



(c) transport services) e-mail messages indicating the identifier

interest of the user, the electronic device server

mail, start date and time of communication, electronic mail addresses

the sender e-mail addresses of the recipients, the

e-mail log, amount of transferred data, information about

using the secure communications,



(d)) for Server services, indicating the identifier of interest

the user of the device, the user account identifier, the date and time

the service request, all identifiers (especially server IP

address, fully qualified domain name FQDN), the required URI

or the type of service, the additional parameters of URIs or services

the service used, amount of transferred data, methods, and the status of the request

the service,



(e)) in other electronic communications services (in particular for the services of the

chat, usenet, instant messaging and IP telephony) with an indication of any

identifiers communicating parties, transport protocol, and data

the start time of the communication, the date and time of their communication, used

the service, the amount of data transferred.



§ 3



The method of data transmission



(1) to provide the data retained the competent authority asks the operator

through his designated contact of the workplace. The operator

the required data are promptly passes through his designated

contact the workplace. Information according to § 2 (2). 3 (b). (c)) shall be forwarded to

collectively, regularly once a month in its current state at the date of the transfer.



(2) communications between the contact the workplace of the operator and of the authorized

the authority is a priority in a way allowing remote access. Request

(I) priority data should be transmitted in electronic form data files.

When the communication contact is used only generally available

technology and communication protocols so that the solution was not linked to

a particular manufacturer or vendor.



(3) if it cannot be used for communication method that allows remote access

or if using such a method would be ineffective, you can pass the request

or pull data in paper form or in the form of data files on

portable media.



(4) in order to prove the authenticity of the request and of the data transmitted will be used



and) advanced electronic signature based on a qualified certificate

certificate issued by an accredited certification service provider "^ 1"); to

signature generation and its validation is applied cryptographic format

standard public key PKCS # 7,



(b)) a cover letter in the paper containing the reference number or

the serial number of the application, file name, date, time, and the method of transmission and

where appropriate, checksum or hash file (for example, standard

SHA-1) and the signature of an authorized person,



c) letter in paper form that contains the reference number and signature of the authorized

a person, or



(d)) in the case of applications or data already transmitted in electronic form for

certain period of time, usually one week, which was not used by another

means of demonstrating the authenticity of the letter, in documentary form, containing

reference number and signature of the authorized person, who shall be sent subsequently.



(5) data on the communications made under a specific identifier for

specific period of time the operator forwards to the competent authority as



and communication from the listing) landline, if the data according to § 2 (2). 2

(a). and)




(b)) a listing of mobile communication, if the data according to § 2 (2). 3 (b). and)



c) listing of data communications, if the data according to § 2 (2). 4.



(6) the Statements referred to in paragraph 5 shall be transmitted to the competent authority in the

a structured text file, preferably with a the coding according to the character

of CP-1250, UTF-8 or ISO 8859-2. Files are processed individually

to each individual phone number or another identifier

shown on the application. The names of the handoff files are structured according to the

name conventions listed in the annex.



(7) the file is prefixed by a single header and has a fixed structure

established for that species or type of network or service request.

Each line in the file if in chronologically sorts the application not

given a different sort parameter. Statement referred to in paragraph 5 shall end on

the last line, the word "end".



(8) on the line with a semicolon to separate individual data (0059 character code

set) or a tab character (code 0009 character sets), most information is

terminating CRLF character (code 0013 0010 and character set). If any of the

the data is not required or is not from the technology used

detecting, its place in the structure is left blank.



(9) in the case of data consisting of multiple values with each value separated by

the character "|" (0166 code character sets). If it is included in the transmitted data

the character the same as either of the above, or the character ' \ ' 93 (code

0092 character set), before it prepends the character ' \ ' 93 (for example, "", "",

„\“).



(10) in appropriate cases and with the consent of the authorised authority, and

the operator is able to use the format, structure, and the name of the file differently

by their definition in paragraphs 6 to 9.



§ 4



The retention period of the data



(1) data shall be kept for a period of 6 months, unless it is in paragraph 2

unless otherwise provided for.



(2) the data referred to in part 3 of the points and annexes are 3.3.4.5 3.3.4.6

be kept for 3 months.



§ 5



The effectiveness of the



This Decree shall take effect on the date of its publication, with the exception of

the provisions of § 4 para. 2 and part 3 of the annex, which shall be effective on the date of

December 1, 2006.



Minister:



Ing. Bérová born in r.



1) section 11 of Act No 227/2000 Coll. on electronic signature, as amended by

amended "



Vi.



Preliminary ruling



25. first of all, the Constitutional Court had to consider the proposal submitted by the applicant, to

tabled by the European Court of Justice in accordance with article 6(1). 234 of the EC Treaty

preliminary ruling parties (not) the validity of the directive on data retention, as

There is a significant risk that the directive on data retention, which

She was infected by a decree of the contested provisions and transposed into the

the Czech legal order, is in conflict with EC law. In this context,

The Constitutional Court emphasises that, even after the accession of the Czech Republic to the EU (from

1.5. 2004) remain the reference framework of the review of the Constitutional Court standards

the constitutional order of the Czech Republic, as the task of the Constitutional Court is

the protection of constitutionality (article 83 of the Constitution of the Czech Republic.), in both its

aspects of, i.e.. How to protect an objective of constitutional law, so

subjective, IE. of fundamental rights. Community law is not part of

the constitutional order, and therefore there is no constitutional court competent to make this

Law said. Nevertheless, the Constitutional Court cannot completely ignore the impact

Community law on the creation, application and interpretation of national

rights, in the area of legislation, the establishment, operation and purpose is

directly linked to Community law [see case findings

The Constitutional Court, SP. zn. PL. ÚS 50/04 of 8 May. 3.2006 (N 50/40 SbNU

443; 154/2006 Coll.), SP. zn. PL. ÚS 36/05 of 16 February. 1.2007 (N 8/44

SbNU 83; 57/2007 Sb.) or SP. zn. II. TC 1009/08 dated May 8. 1.2009 (N

6/52 SbNU 57)]. The content of the directive itself, however, leaves the data retenion

The Czech Republic is constitutionally sufficient space for its Conformal

the transposition into the domestic legal order, because its individual provisions

basically only define the obligation to retain data. In the transposition is

must comply with the purpose that the directive lays down, however, when the legal and

Bye-specific editing data storage and handling, including

measures to prevent their diversion to follow constitutional standard,

that is apparent from the Czech constitutional order, as interpreted

the Czech Constitutional Court. This is because a particular form of transposition-i.e..

the contested provisions in law and podzákonná-is a manifestation of the will of the Czech

the legislature, which in compliance with the purpose of the Directive to the selection

funds arranged variably, but was in the selection of the legislature

bound by the constitutional order.



VII.



Terms of reference for the assessment of the proposal



VII. And) the right to respect for private life and right to information

self-determination



26. in article. 1 (1). 1 of the Constitution of the Czech Republic is contained the normative

the principle of democratic rule of law. The basic attribute of the constitutional

the concept of the rule of law and the condition of its functioning is respect for

fundamental rights and freedoms of the individual, that is, as an attribute

selected constitutional concept of the rule of law, in that the constitutional

the provisions explicitly expressed. This constitutional provision is the base of the

the material, understood the laws, which is characterized by respect for statehood

public authorities to free (autonomous) sphere of the individual, as defined

fundamental rights and freedoms, and to the public realm much fundamentally

does not interact with, or only intervenes in cases that are justified by the

collisions with other fundamental rights or constitutional aprobovaným and the law

clearly defined public interest, and provided that it is

by law, predicted the intervention of proportional with respect to the objectives to

be achieved, having regard to the rate of reduction of the basic omezovaného

rights or freedoms.



27. The concept of privacy is most commonly associated with Western culture and

even more accurately with the anglo-American cultural idea set to

political philosophy of liberalism. It is a concept that is clearly not the

in General, shared how completely the accent on the importance of privacy to the extent

What privacy is to be protected. There are different in different cultures

ideas on how to "how massive privacy are individual persons

entitled to and in what contexts. But already in 1928, writes the judge

Brandeis in the widely cited the dissent to Olmstead who did in the case (U.

S. 438, 478, 1928) the following assessment of privacy: "the makers of our Constitution

taken the responsibility to create favourable conditions for the pursuit of

happiness (...) Admitting to the right (against the Government) be left "alone together"-which

is the most comprehensive and the most inclusive of all the law and the law,

that is the rarest civilizovanému humanity. ". And so, from the explicitly

constitutional nezmíněného right to privacy has become a basic

the structural element of the U. S. Constitution, which ensures the autonomy of

individuals, though its application is still, and has repeatedly been waged inside

The U.S. Supreme Court battle.



28. the requirement of respect for independent and peculiar arrangement of life became, next to the

the requirement to respect for their lives, physical, psychological and spiritual

integrity, personal freedom and ownership, the central human rights

entitled to the autonomy of the individual, which has a formative meaning for European

national catalogues of human rights (Basic), as well as for their

later regional and universal pandány. Even in the Europe of the original

national catalogues of fundamental rights, however, it was not right to privacy

or private life explicitly mentioned as such, which illustrate lyrics

national constitutions from 40. and 50. years of the last century (e.g. the Constitution

GERMANY, Austria not to mention, the Constitution of Denmark, Finland, France, of course,

as well as Ireland, but also Italy and other States). The requirements of respect for

Privacy and its protection are closely linked to the development of the technical

and technological capabilities, which of course increases the freedom of

threatening potential of the State.



29. As stated in the Constitutional Court finding SP. zn. II. the TC 2048/09 dated March 2.

11.2009 (available in an electronic database of decisions

http://nalus.usoud.cz): "a completely special respect and shall enjoy protection in

liberal democratic States the fundamental right to an undisturbed private

the life of a person (article 10, paragraph 2, of the Charter). ". The primary function of the law on

respect for private life is to provide a space for development and

the self-realisation of the individual personality. In addition to the traditional definition of

Privacy in its spatial dimension (protection of dwelling in the broader

the meaning of) and in the context of an autonomous existence and public authorities with continuous

the formation of social relationships (marriage, in the family, in society),

the right to respect for private life also includes a guarantee of self-determination in

the meaning of the principle of the individual decision making about himself. In other words,

the right to privacy guarantees the right of individuals to decide according to the

own discretion whether or to what extent, how and

what circumstances are to be facts and information from his personal

Privacy is made available to other entities. As to the aspect of the right to privacy in the

the form of the right to Informational self-determination, explicitly guaranteed article. 10

paragraph. 3 of the Charter [cf. the findings of the Constitutional Court, SP. zn. IV. TC 23/05 of

17 May. 7.2007 (N 111/46 SbNU 41) or SP. zn. I. ÚS 705/06 from day 1.


12.2008 (N 207/51 SbNU 577), or the decision of the Federal Constitutional

Court of the FEDERAL REPUBLIC OF GERMANY of 15 July 12.1983, BVerfGE 65, 1 (



Volkszählungsurteil

) or from day 4. 4.2006, BVerfGE 115, 320 (



Rasterfahndungurteil II

)].



30. In that decision, BVerfGE 65, 1, German Federal Constitutional Court

in assessing the constitutionality of legal provisions, the process of the collection and storage of data

for the purpose of census (



Volkszählung

), inter alia, noted that in modern society, characterized by (i)

the huge increase in information and data must be the protection of individuals against the

Unlimited collection, storage, use and disclosure of data about its/its

person and privacy provided in the framework of a more general, constitutionally guaranteed

rights of the individual to privacy. If the individual is not guaranteed

the ability to watch and control the content and scope of the personal data and information

provided by the, which are to be published, stored or used for any other

than the original purposes, will not be able to detect and evaluate the

the credibility of his potential communication partner and, where appropriate,

it adapted its hearing, then necessarily occurs to limit up to

the Suppression of his rights and freedoms, and cannot be so no longer talk about

a free and democratic society. The right to Informational self-determination (



informationelle Selbstbestimmung

a necessary condition) is not only for the free development and self-realization

of the individual in society, but also for the establishment of a free and

democratic communication order. To put it simply, in terms of

omniscient and omnipresent State and public authorities, freedom of expression,

the right to privacy and the right of free choice behavior and the venue becoming

virtually non-existent public and illusory.



31. In the Charter is the right to respect for private life guaranteed in

one an all-encompassing article (as in the case of article 8 of the Convention).

On the contrary, the protection of the private sphere of the individual is in a Charter of spans and

supplemented by other aspects of the right to privacy, declared on different

locations of the Charter (e.g. Article 7, paragraph 1, article 10, 12 and 13 of the Charter). As well

and the right to Informational self-determination can be inferred from article. 10, paragraph 1.

3 of the Charter, garantujícího individuals the right to protection against unauthorized

the collection, publication or other misuse of the data and their

person, in conjunction with article. 13 of the Charter, which will protect the confidentiality of correspondence and

Secrets of transported messages, whether held in private, or

sent by post, telephone, telegraph or other similar

devices, or in any other way. However, the "fragmentation" of the legal

the editing aspects of the private sphere of the individual cannot be overstated, and in the Charter of

the said list of what should be classified under the "umbrella" of the right to

privacy or private life cannot be considered as exhaustive and

final. In the interpretation of individual fundamental rights, which are

the capture of the right to privacy in its various dimensions as stated

The Charter, it is necessary to respect the purpose of the generally-understood and dynamically

developing the right to privacy as such, and should be considered

the right to private life in its historic integrity. Therefore, even the right to

Informational self-determination guaranteed by article. 10, paragraph 1. 3 and article. 13 of the Charter is

should be interpreted, in particular, in connection with the rights guaranteed to article. 7,

8, 10 and 12 of the Charter. By its very nature and the meaning of the law on information

self-determination falls between basic human rights and freedoms, since along with the

personal freedom, freedom in the spatial dimension (the House), the freedom of

communication and surely other constitutionally guaranteed fundamental rights

finishing touches to the realm of an individual's personality, the integrity of the individual as

entirely dignified existence of necessary condition of the individual and the development of human

life is to be respected and protected; completely laws are

Therefore, the respect and protection of this realm, as the constitutional order guaranteed

-considered only from a somewhat different angle-as an expression of respect for the rights and

freedoms of man and citizen (article 1 of the Constitution of the Czech Republic).



32. It follows from settled case-law of the Constitutional Court, in particular in relation to the

the issue of interception of telephone calls, clearly shows that the

protection of the right to respect for private life, in the form of the right to

Informational self-determination within the meaning of article 87(1). 10, paragraph 1. 3 and article. 13 of the Charter

applies not only to the actual content of the reports by phone, but also to

information about dialed numbers, date and time of the call, the time of its duration,

the case of mobile telephony base stations providing a call

[cf. e.g. find SP. zn. II. TC 502/2000 of 22 May 2000. 1.2001 (N 11/21

SbNU 83)-"the privacy of each person is worthy of a major (Constitutional) protection

not only in relation to the body of a message to be administered, but also in relation to the

the above data. It can therefore be concluded that article. 13 of the Charter establishes and

the protection of the secret of dialed numbers and other related data, such as

the date and time of the call, its duration, in the case of a call to a mobile

phone base stations providing a sign call. (...) These

the data are an integral part of the communications made through

phone. "-or similarly finds SP. zn. IV. TC 78/01 of 27 April. 8.2001

(N 123/23 SbNU 197), SP. zn. I. TC 191/05 of 13 April. 9.2006 (N 161/42

SbNU 327) or SP. zn. II. TC 789/06 of 27 February. 9.2007 (N 150/46 SbNU

489)].



33. the Constitutional Court cited the findings came even from the ECtHR case-law

[in particular, the judgment in the case Malone against UK (No. 8691/79 of 2 July. 8.

1984)], which from the article. 8 of the Convention, the right to respect for the garantujícího

private and family life, as well as to the dwelling and correspondence,

drew and the right to Informational self-determination, when several times pointed out that the

collection and retention of data relating to the private life of individuals

fall under the scope of the article. 8 of the Convention, since the expression "private life" may not be

interpreted restrictively. This facet of the right to privacy so consumed

(I) the right to protection from the monitoring, surveillance and persecution of

by a public authority, and even in the public domain or publicly

accessible locations. In addition, no fundamental reason does not allow you to exclude from the

the concept of private life activities of professional, business, or social [cf.

decision in the matter of Niemietz against Germany (No. 13710/88) of 16 December 2003. 12.

1992]. As stated by the ECTHR, this extensive interpretation of the concept of "private

life "is in compliance with the Convention on the protection of individuals with regard to

automatic processing of personal data (drawn up by the Council of Europe to 28.

1.1981, in force in the Czech Republic from 1. 11.2001, Publ. No.

115/2001 Coll., m. s.), whose aim is to "guarantee on the territory of each Contracting

the parties to any natural person (...) respect for its rights and fundamental

freedoms, and in particular its right to private life, in connection with the

automated processing of data of a personal nature, which is

apply (article 1), and these are defined as any information

relating to an identified or identifiable natural person (article.

2). " [cf. decision in case Amman against Switzerland (No. 27798/95) from the

16 December 2002. 2.2000 and case-law cited there].



34. The ECtHR in its case-law to the right to respect for private life by

article. 8 of the Convention as interference in the privacy of individuals, inter alia,

interventions in the form of checks, the mail content data and interception of telephone

conversations [cf. decision in the matter of Klass and others v Germany (no.

5029/71) of 6 May 1999. 9. the 1978 decision in the case against Sweden during World War II

(No. 9248/81) of 26 March 2004. 3. the 1987 decision in the case against Kruslin

France (No. 11801/85) of 24 December 2002. 4.1990, or decision on Kopp

against Switzerland (No. 23224/94) of 25 October 2005. 3.1998], detection

the telephone numbers of callers people [cf. decision in the case of p. g. a.

J. h. against UK (No. 44787/98) of 25 October 2005. 9.2001], collection of data on

telephone connection (cf. cited decision in case against Amman

Switzerland) or the retention of the DNA of individuals in databases

the accused [cf. decision in case against S. s. and UK (30562/04

and 30566/04) of 4 November 1993. 12.2008]. In the Rotaru judgment against

Romania (28341/95) of 4 November 1993. 5.2000 the ECTHR ruled the right of

private life indicated in the form of the right to Informational self-determination

even the State's positive obligation to dispose of the data about the person of the

private sphere State rallied and processed.



35. A similar approach as the case-law of foreign constitutional courts.

For example. referred to the Federal Constitutional Court of GERMANY through the law on the

Informational self-determination guarantees the protection of not only the content of the transmitted

information, but also protects the exterior circumstances in which the effected-IE.

the place, time, participants, the nature and means of communication, since the knowledge of the

the circumstances made the communication may, in conjunction with other information, in itself,

each indicate the content of the communication and exploration of these

data and their analysis can make the individual profiles of the participants of the

communication. [see e.g. judgment of 27 November. 7.2005, BVerfGE

113, 348 (



Vorbeugende Telekommunikationsüberwachung

) and of 27 June. 2.2008, BVerfGE 120, 274 (



Grundrecht auf Computerschutz

)].



VII. B) admissibility of intervention in the right to Informational self-determination



36. the primary goal of the legal regulation of the electronic circuit and preventive collection and

the retention of traffic and location data on electronic communications


is generally referred to protection against security threats and the need to

ensure the availability of such data for the purposes of the prevention, detection,

investigation and prosecution of serious criminal offences on the part of public authorities.

As the Constitutional Court has in the past repeatedly stressed the prosecution

offences and punishment of their perpetrators equitable is constitutionally

aprobovatelným public interest, whose essence is the migration

the responsibility for the prosecution of the most serious violations of fundamental rights

and freedoms of natural and legal persons to the State. If the criminal

the realization of the right of public interest in the prosecution of crime by using the

robust tools, the use of which has resulted in serious restriction of personal

the integrity and fundamental rights and freedoms of the individual, then when they

the application must be respected, no constitutional limits. A limitation of personal

the integrity and privacy of persons (i.e. to break the respect to them) and the

by a public authority may occur only exceptionally, if it is in

a democratic society is essential, if the purpose of the reference to public

interested to achieve otherwise, and if it is acceptable from the perspective of the statutory

the existence of and compliance with the effective and specific guarantees against the will.

Essential prerequisites of a fair process, namely to require that

individual equipped with sufficient guarantees and safeguards against possible

misuse of powers on the part of public authorities. They're the necessary guarantees

They consist of a corresponding legislation and the existence of effective control

their observance, which primarily represents the review of those

the most intense intervention into fundamental rights and freedoms of individuals

an independent and impartial tribunal, as it is the duty of the courts to provide

the protection of fundamental rights and freedoms of individuals (article 4 of the Constitution of the United

the Republic) [cf. findings SP. zn. I. ÚS 631/05 of 7 November. 11.2006 (N

205/43 SbNU 289) and SP. zn. PL. ÚS 3/09 of 8 May. 6.2010 (219/2010 Coll.,

available in an electronic database, http://nalus.usoud.cz) decision].



37. The fulfillment of the above conditions, then předestřených the Constitutional Court in its

the case law was adopted in assessing the admissibility of closer intervention

public authority to the privacy of individuals in the form of the use of wiretaps

telecommunications [cf. e.g. cited findings SP. zn. II. THE TC

502/2000, SP. zn. IV. TC 78/01, SP. zn. I. TC 191/05 (all the above)

or find SP. zn. I. ÚS 3038/07 of 29 April. 2.2008 (N 46/48 SbNU 549)].

Interference with the fundamental right of the individual to privacy in the form of rights to

Informational self-determination within the meaning of article 87(1). 10, paragraph 1. 3 and article. 13 of the Charter of the

reason, prevention and protection from crime is so possible only through

the mandatory statutory regulations which must above all needs

arising from the principle of the rule of law and that meets the requirements

resulting from the proportionality test, when, in cases of conflicts of fundamental

rights or freedoms with the public interest, or with other fundamental rights or

freedoms must be considered the purpose of the (target), such an intervention in relation to the

the used resources, taking the benchmark for this assessment is the principle

of proportionality (in the broader sense). Such legislation must be an exact

and clear in their formulations and predictable enough to

potentially the individuals concerned to provide sufficient information about

the circumstances and conditions under which the intervention of the public authorities empowered to

to their right to privacy, in order to be able to modify their behaviour to

they didn't get into conflict with the restrictive standard. It must also be strictly

defined and the powers conferred on the competent authorities, the manner and rules

their implementation, so that the individuals were given protection against

arbitrary interference. Consideration of admissibility of intervention in terms of

the principle of proportionality (in the broader sense) includes three criteria.

The first is the assessment of the eligibility of the fulfillment of the purpose (or also

Fitness), and verifying that a particular measure at all

able to achieve the intended objective of protecting other fundamental

rights or public good. Second, it is an assessment of the need,

in which it is examined whether the resources used in the selection of the

a resource that is the most fundamental right. And finally, is

examined the adequacy (in the strict sense), that is, whether the injury on the basic law

is not excessive in relation to the intended target, IE. that measures to control

basic human rights and freedoms shall not, in the case of the collision of the basic

rights or freedoms with the public interest, their negative consequences

outweigh the positives, which represents the public interest in these

measures. [cf. find SP. zn. PL. ÚS 3/02 of 13 April. 8.2002 (N

105/27 SbNU 177; 405/2002 Coll.)].



38. An essential requirement of the judicial protection of fundamental rights in the case of

the use of the instruments of criminal law restricting fundamental rights and freedoms

the individual manifests itself particularly in the issue of the court order and its

sufficient justification. It must conform to the requirements of the law, so

above all, constitutional principles, of which legal provision is based on, respectively.

that backward they interpret, as the application of such

provision constitutes a particularly serious interference with the fundamental rights and freedoms

each individual. "The court order to wiretap and record

telecommunications may be issued only in duly instituted criminal

procedure for a qualified crime law, and must be supported by

relevant indicia from which it can be inferred reasonably suspects of

such an offence. Statement must be of the appellants in the

relation to a specific individual who is a user of the telephone station.

Finally, it must command at least minimal specifically indicate what

the facts relevant for criminal proceedings to be detected and the

What is it inferred. " (see also cited the findings of the Constitutional Court, SP. zn.

II. TC 789/06 or SP. zn. I. ÚS 3038/07-both of the above).



39. A similar approach as the ECtHR in its case-law. The ECTHR in

accordance with article 6(1). 8 (2). 2 of the Convention, which defines the constitutional limits

restrictions of fundamental rights and freedoms of individuals guaranteed by the article. 8 (2).

1 of the Convention, in each case the first assesses whether the alleged

intervention or limitation of fundamental rights or freedoms is podřaditelný below the range

protection of the article. 8 of the Convention. If Yes, was the alleged interference with the right to

Privacy on the part of public authority carried out in accordance with the law, which

must be available and sufficiently predictable, therefore, expressed with great

degree of accuracy, so that individuals allowed if necessary

regulate their behavior (cf. Malone against UK, Amman against Switzerland or

ROTARU against Romania). The level of precision required when national

legislation which in no case can take account of all

eventualities, to a large extent depends on the content of the analysis of the text to

the area you want to cover and the number and status of the persons to whom it is intended

[Hassan and Tchaouch against Bulgaria (No. 30985/96, 39023/97) of 26 March 2004.

10.2000]. Under review the intervention into fundamental rights or freedoms

guaranteed by the article. 8 (2). 1 of the Convention shall, in the meaning of article 87(1). 8 (2). 2 of the Convention

also be necessary in a democratic society, to follow the Convention

qualified purpose (e.g., the protection of life or health of persons, national and

public safety, protection of the rights and freedoms of others or morality,

the prevention of disorder or crime, or an interest in the economic well-being of

the Earth), which must be relevant and duly reasoned. To be able to

congressmen consider as compatible with the Convention, must within the meaning of article.

13 of the Convention also provide adequate protection against arbitrary decisions, and in the

as a result, with sufficient clarity to define the scope and method of performance

powers conferred on the competent authorities (cf. Kruslin against France

or s. and S. against the UK). In other words, the acts representing the obvious

interference with the fundamental rights to private life must not find themselves outside the

any imminent (preventive or subsequent) judicial control

[cf. for example. decision in the matter of Camenzind against Switzerland (no.

21353/93) of 16 June. 12.1997].



40. the ECHR said the requirements for legislation allowing interference with rights

the private life of the closer was adopted in the above

decisions, in which the judge the admissibility of such an intervention on the part of

public authority in the form of the use of interception of telephone calls, secret

surveillance, collection of information and data from the private (personal) realm

of the individual. The ECTHR has emphasized that it is first necessary to define clear and

detailed rules governing the scope and application of such measures,

set minimum length requirements, how to store the

information and data, their use, third party access to them, and

anchor procedures to protect the integrity and confidentiality of the data and

also to their destruction, and the way that individuals had

sufficient guarantees against the risk of their abuse and arbitrariness.

The need to dispose of such guarantees is all the greater when it is

protection of personal data undergoing automatic processing, in particular

If the data are used for law enforcement objectives and in a situation where

available technology becoming increasingly intricate. National

the right must, in particular, ensure that the data collected are actually


relevant and not excessive for the purpose for which they were

secured, and that they are kept in a form which permits identification of

people during the period of not exceeding the necessary level to achieve the purpose for

that have been secured by [cf. the preamble and article 5 of the Convention on the protection of data and

principle No. 7 of the Committee of Ministers Recommendation No R (87) 15 of 17 September. 9.1987

relating to the editing and use of personal data in the police sector,

retrieved from the decision in the matter of Weber and Saravia against Germany (no.

54959/00) of 29 April 2004. 6.2006 or Liberty and others v UK (No. 58243/00)

from day 1. 7.2008].



VIII.



Your own review



VIII.) and data retention



41. as already mentioned above, the Constitutional Court, the contested provisions of § 97 para. 3

and 4 became part of Act No. 127/2005 Coll., on the basis of Act No.

247/2008 Coll., amending Act No. 127/2005 Coll., on electronic

roads and amending certain related laws (the law on the

electronic communications), as amended. According to the

the explanatory memorandum of the adoption of this amendment served to implement "of some

the articles of the "European Parliament and Council Directive 2006/24/EC of 15 December 1999. 3.

2006 on the retention of data generated or processed in connection with the

the provision of publicly available electronic communications services or

of public communications networks and amending Directive 2002/58/EC, which

so far they are not into our legal system implemented, or are

implemented only partially, (because) the directive on data retention is in

The Czech Republic already transposed (...). Valid legislation is in

some respects wider than that provided for in the directive on data

retention. ". The issue of retention of traffic and location data

It is in the Czech legal order in modified form adapted from

the adoption of the law on electronic communications itself no. 127/2005 Coll.

with effect from 1 January. 5.2005, and since the adoption of the contested Decree of the Ministry of

computer science no 485/2005 Coll., on the extent of the traffic and location

data retention time and the form and manner of their transmission

the authorities authorized to its use, with effect from 15. 12.2005. In

at that time only in the EU directive on data retention being prepared so

actually was in fact implemented in the Czech Republic ahead of time and

the very wording of the contested provisions already according to the requirements of the directive on data

retention only represents a refinement of the obligation to retain traffic and

location data and these data without delay, provide to the authorities

entitled to their request. The contested Decree of the Ministry of

computer science, despite this fact, however, has not been changed already, which has

the effect of the fact that the contested legislation regulated

the range of the stored data continues to be clearly above the framework

the scope of the proposed directive on data retention in question.



42. According to the contested provisions of § 97 para. 3 the first and second sentences of the law on

electronic communications legal or natural person providing

providing a public communications network or publicly available service

electronic communications is under no obligation to retain traffic and location

data which are generated or processed, in the provision of its

of public communications networks and publicly poskytovávání her

available electronic communications services, including details of

unsuccessful attempts to call, even if these data created or

processed and stored or recorded. Under section 90 of the Act

on electronic communications, traffic data means "any

data processed for the needs of the electronic message transmission

communications or to its accounting. ". Pursuant to section 91 of the same Act shall be deemed

location data shall be considered as "any data processed in the network

electronic communications services, which determine the geographic position of the Terminal

the device of the user of publicly available electronic communications service. ".

Instantiating and the range of traffic and location data, time

their preservation and the form and manner of their transmission to the authorities of the legitimate

to their use by the contested provisions of § 97 para. 4 has the

to define the implementing legislation, which is the contested Decree No.

485/2005 Sb.



43. Specifically, the fixed telephony lines in service and mobile communication

operators are obliged to collect virtually all the available

details of the calls i made (if recorded) about their

unsuccessful attempts (typically "ringing"). In particular, data on the

the type of communication, made about the caller's telephone number and

the answering, the date and time of the start and end of the communication, indicate

base stations, which accounted for the call at the time of connection,

identification of prepaid phone cards, public phone

a vending machine for mobile communications in addition, the data about the identity of the code

used to identify each mobile phone that is

used in the context of the GSM network (IMEI), on its position and movement, even if the

the communication does not take place (just turned on a mobile phone), the numbers of rechargeable

coupons and their assignment to the dobíjenému number, the link between the mobile

the device and all the embedded SIM cards, etc. Even greater volume and range

data and data from the contested legislation must be kept,

related to the so-called. public networks working on the principle of switching

packets and their services, nejtypičtěji the Internet. In the case of its use

the contested legislation required the retention of data, in particular on the

access to the network (e.g., time, location and length of the connection, the data on the

users and their user accounts, the identifier of the computer and

the server that was accessed, IP address, fully qualified domain name,

volume of data transferred, etc.), data relating to access to

e-mail mailboxes and transfer e-mail messages (in the

this case is kept virtually all of the data in addition to the content

the messages themselves, IE. including the identification of addresses, the volume of data transferred

etc.), and last but not least, information about the server and other services

[e.g. the specified URL address, type of request, the information about how to use the chat,

Usenet newsgroups, instant messaging (e.g.. ICQ) and IP telephony, including

identification of the communicating parties, time and used services (e.g. transfer

files or transactions)]. Beyond the scope of the directive on data retention

the Internet services and email communications monitors and

stores the amount of transferred data, information about the use of encryption,

the method and status requests to the service and its implementation as well as

information about sending SMS from Internet gateways and other "special interest

the identifiers ". In telephony, beyond the directive on data retention

the contested legislation requires to retain data on the identification

prepaid phone cards payphone, numbers

recharging coupons and their assignment to the dobíjenému number, the links between

your mobile device and embedded SIM cards.



44. Although it is laid down the obligation to retain traffic and location

the information does not apply to the contents of individual communications (see article 1, paragraph 2,

The directive on data retention and the contested provisions of § 97 para. 3 sentences

the fourth), of the information about our users, the recipient, the precise times,

dates, places and forms of telecommunication connections will be monitored

After a long period of time, can be used in combination to build a detailed

information about the social or political affiliation, as well as about the personal

hobbies, inclines or weaknesses of each person. In the above

rekapitulovaném expression of the Senate that we gladly accept the opinion of the party making the proposal

the law that "in any case, this is not something that could be likened

to wiretapping, just because they do not retain the contents of the individual

phone calls and e-mail messages ", is entirely wrong, because i only

the basis can be made sufficient findings of the content falling within the

private (personal) sphere of the individual. From these data can be

up to a 90% level of confidence for example. inferred, with whom, how often, and even in what

hours of the individual meets, who are his closest acquaintances,

friends or colleagues from work, or what activities and at what hours

operates [cf. study the Massachusetts Institute of Technology (MIT),



Relationship Inference

, available at http://reality.media.mit.edu/dyads.php]. The collection and

storage location and operational data, so it also represents

significant interference with the right to privacy, and for this reason it is necessary under the

the scope of protection of the fundamental right to respect for private life in the form of

the right to Informational self-determination (within the meaning of article 10, paragraph 3, and article 13

Of the Charter) to include not only protect your content reports

through a telephone communication or communication through the so-called.

public networks, but also the traffic and location data about them.



VIII. B) the assessment of the contested legislation in terms of the constitutional

the requirements of the



45. The Constitutional Court had to consider whether the impugned legislation, which is

regulated by across-the-Board issues and preventive collection and retention

laid down by the traffic and location data on electronic communications

(the so-called. data retention), corresponds to the above předestřeným ústavněprávním


the requirements of the legislation to allow the intervention into fundamental rights

of individuals to privacy in the form of the right to Informational self-determination (in

meaning of article 87(1). 10, paragraph 1. 3 and article. 13 of the Charter). In addition, with regard to the intensity of the

such an intervention, which in this case is highlighted by the fact that touches the

huge and unpredictable number of participants in the communication, since the

This is the area and the prevention of the relevant data collection and retention, was

necessary to meet these requirements to ask what the most stringent standards.

The Constitutional Court concluded that the challenged legislation above

předestřeným ústavněprávním requirements by far is not responding, and it now from

for several reasons.



46. the contested provisions of § 97 para. 3 third sentence of the law on electronic

communications, contains only vague and completely uncertain determination of the obligations

legal or natural persons, which in the above range

traffic and location data be retained, "without delay upon request

provide the authorities authorised to request, under a special

legislation. ". Although challenged the Ordinance in section 3 specifies,

How occurs in individual cases to meet this

obligations to the legitimate authorities, IE. relatively great detail

defines the method of transmission of the data, the method of communication (electronic)

the format, used by programs, codes, etc., yet from the wording of

the contested provisions of § 97 para. 3 of the law on electronic

roads, nor from the explanatory memorandum in the opinion of the Constitutional Court

clearly, it is not about what the legitimate authorities and on what specific legal

the regulations specifically. Having regard to the provisions of § 97 para. 1

the law on electronic communications, that legal or natural

persons providing a public communications network or publicly

available electronic communications service provides for an obligation on the

the costs of the applicant to establish and secure their network at specified points

interface for connecting the telecommunications device for the

interception and recording of the messages, one can only assume that even if

the obligation to transmit traffic and location data that is maintained is a

the same legitimate authorities and similar special legislation whose

the addressee are the bodies active in criminal proceedings, pursuant to section 88a

the criminal procedure code, the security information service under section 6 to 8a of the Act

No 154/1994 Coll., on the Security information service, as amended

regulations, and military intelligence under section 9 and 10 of law no 289/2005

Coll. on Military Intelligence. This legislation allowing

a massive intervention into fundamental rights does not meet the requirements for the

certainty and clarity from the perspective of the rule of law (see paragraph 37).



47. Nor is it clearly and precisely defined purpose for which they are

traffic and location data to authorized authorities provided, which

makes it impossible to assess the contested adjustment in terms of its actual

the need (when is certainly eligible to fulfill a purpose, or is capable of

to achieve the objective laid down by the directive-see below). While the cited

The directive on data retention on the article. 1 (1). 1 clearly defines that was

taken in order to harmonise the provisions of Member States relating to

obligations of the providers of publicly available electronic

communications services or of public communications networks with respect to the retention of

traffic and location data that are necessary to identify the

of the Subscriber or registered user, in order to "ensure the availability of

such data for the purposes of the investigation, detection and prosecution of serious

criminal offences "(though the closer does not define what offences),

does not contain the contested legislation, and not even cited the provisions of §

88a para. 1 code of criminal procedure regarding the terms of use of the retained

data for the purpose of criminal proceedings, no such restriction. The ability to use

stored data in criminal proceedings according to the relevant legislation, so

the legislature is not in any way tied to the reasonable suspicion of having committed

serious crime, as well as the obligation of the authorities is not regulated

law enforcement agencies concerned of this fact (monitored)

person, even then inform, which does not meet the demands arising from the

the second step of the test of proportionality, i.e.. the need in the selection

funds, because it is clear from the above that, that has not been used because

a resource that is the basic right of informational self-determination of people

most environmentally friendly.



48. that way (not) defining the spectrum of legitimate public

power, as well as (not) the definition of the purpose for which the data are stored

entitled to request, the Constitutional Court shall not be considered as sufficient and

predictable. Although according to the provisions of section 88a of the cited paragraph. 1

the criminal procedure code the use of retained data shall be subject to judicial review, and

in the form of authorisation by the President of the Chamber (and in the preparatory

management of the judge), it was primarily the duty of the legislature, to produce

provisions or the provisions of section 88a in that paragraph. 1 code of criminal procedure

instead of completely indeterminate definition of the terms of use of retained data

"about telecommunications service" in order to "clarify the

the facts important for criminal procedure "more clearly and more clearly

established as terms and conditions for their use, as well as a range of

their use. In particular, it is necessary, having regard to the seriousness and level of

interference with the fundamental rights of individuals to privacy in the form of rights to

Informational self-determination (within the meaning of article 10, paragraph 3, and article 13 of the Charter), which

the use of retained data represents, the legislature has restricted the possibility of

the use of retained data only for the purposes of criminal proceedings for

particularly serious crimes and only in case that you cannot reference

the purpose of reach otherwise. Moreover, it assumes not only the cited

The directive on data retention, but also the provisions of § 88 para. 1 code of criminal procedure

specifying the conditions for the regulation of the interception and recording of telecommunications

("If the criminal proceedings for a particularly serious offence"),

from which the legislation referred to the provisions of section 88a of the criminal procedure code as

all (despite the legal opinions of the Constitutional Court contained in the cited

the findings, SP. zn. II. TC 502/2000 or SP. zn. IV. TC 78/01-both see

above) completely without reason departs and normuje treatment, which is in the

an apparent contradiction with the views of the Constitutional Court.



49. The Absence of a proper, within the meaning of the legislation constitutionally conformal, how

Indeed, it is apparent from the statistics, has, in practice, with the result that

tool in the form of a request, and the use of retained data (including data

about the lack of calls to which the criminal procedure code does not remember at all) is

law enforcement authorities used (nadužíván) for the purposes of

investigation of the ordinary, IE. less serious crime. So for example. According to the

"reports about the security situation in the Czech Republic for the year 2008" has been on the territory of the

The United States found a total of 343 799 offences, of which

clarified 127 906 criminal offences, while in the same period, the number of

requests for the provision of traffic and location data by the

legitimate public authorities, reached 131 560 (cf. numbers.

the EU Commission report-"



The Evaluation of Directive 2006/24/EC and National Measures that Combat

Criminal Misuse and Anonymous Use of Electronic Data

"that's the official information from the Czech party sought, with responses

the representatives of the United States to the questionnaire of 30 November 2005. 9.2009

available at http://www.dataretention2010.net/docs.jsp). Subsequently,

only within the period from January to October 2009, according to unofficial data

the request for location and traffic data made already in 121

839 cases (cf. to Herczeg, j.: constitutional limits

the monitoring of telecommunications: the conflict between security and

freedom, advocacy Bulletin No 5/2010, p. 29).



50. The applicant challenged the legislation according to the opinion of the Constitutional Court

also completely lack. at all does not provide clear and detailed

the rules with the minimum requirements of the security held by the

data, in particular in the form of preventing access by third persons, setting

procedures to protect the integrity and confidentiality of the data and procedure

their destruction. Furthermore, the contested edit, that the prejudice to the

individuals do not have sufficient guarantees against the risk of abuse

data and arbitrariness. The need to have such safeguards are in

the case under consideration and the preventive collection and retention of data in the

the electronic communication becomes more and more urgent for individuals in

Today, when thanks to the enormous development and the emergence of new and

more elaborate information technology, systems and communications

resources inevitably occurs continuously shifting boundaries between

private and public space, and in favour of the public domain, as

in the virtual space of information technology and electronic

communication (in the so called cyberspace), in particular through the development of the Internet

and mobile communications, each minute of recorded, collected and


in fact, made available to the thousands, indeed millions of data, data and information, which

even in private (personal) sphere of each individual, as

he knowingly let anybody into it.



51. the Constitutional Court considers sufficiently clear, detailed and adequate guarantees in

no way does not consider mere anchoring duties imposed on legal

or to individuals to ensure "that defined the information contained

has not been stored and the content of messages "(§ 97 paragraph 3, fourth sentence), respectively.

the obligation is "after the time discarded, if not provided

the authorities authorised to request under special legislation

or this law provides otherwise (article 90) "(§ 97 para. 3 of the sixth sentence). For

ambiguous, and given the scope and sensitivity of stored data for

totally inadequate definition itself can no longer mark the time of their

Save, and it's in the range of "not less than 6 months and not more than 12 months ',

from whose end is based on the obligation to dispose of the data given. U

any of the listed obligations are not described in detail the rules and

specific procedures for their implementation, are not strictly defined requirements

the security of the stored data is not sufficiently detectable, as with

indications and usage, whether by legal or natural

persons who retain traffic and location data, or after their

request authorized by the public authorities, as well as not specifically

determined by the manner of their disposal. Also there is no defined

responsibility and the potential penalties for non-compliance with such obligations, including

the absence of anchoring options concerned individuals seek effective

protection against possible abuse, arbitrariness, or failure to comply with established

duties. The law on electronic communications (article 87 et seq.).

In addition, the supervision of the Office for personal data protection "of compliance with the

obligations when processing personal data "and defined his tools

activities and control cannot be considered adequate and effective remedy

to protect the fundamental rights of the individuals concerned, since this tool

do not speak for themselves [see reasonably find SP. zn. PL. ÚS 15/01 of 31 July.

10.2001 (N 164/24 SbNU 201; 424/2001 Coll.)]. These acts,

representing a blatant interference with the fundamental right of individuals to

Privacy in the form of the right to Informational self-determination (within the meaning of article 10

paragraph. 3 and article. 13 of the Charter), so the lack of and above

ústavněprávním compliant legislation, find themselves outside the

any immediate, even if follow-up, in particular the

the control of the Court, to whose necessity was also the ECTHR in that

Camenzind in decision. Switzerland.



52. Similar conclusions reached as well as constitutional courts in other European

States, which are also under review the constitutionality of legislation

implementing the cited directive on data retention. For example. Federal

GERMANY's Constitutional Court in its decision of 2 July 2002. March 2010, 1 BvR 256/08, 1

BvR 263/07, 1 BvR 591/08, the contested legislation regulating

the issue of preventive retention of data (



Vorratsdatenspeicherung

) (within the meaning of section 113a, 113b



Telekommunikationsgesetz

) and their use in the context of criminal proceedings (within the meaning of § 100 g (1)



Strafprozessordnung

found unconstitutional) conflict with the article. 10, paragraph 1. 1 of the basic law,

that guarantees the integrity of postal, mailing and

telecommunications secrecy. The Federal Constitutional Court of GERMANY noted that the

the impugned legislation does not correspond to the requirements arising from the principle of

of proportionality that mj. requires that the data storage law

match the seriousness of the interference with the specific fundamental rights

individuals. Specifically, the contested legislation lacks

It didn't restrict the purpose of the use of these data did not guarantee their sufficient

security, and last but not least individuals sufficiently negarantovala

adequate and effective safeguards against the risk of abuse, in particular in the form of

judicial control. To meet these requirements under article. paragraph 73. 1

section 7 of the basic law called the federal legislature. A similar

the conclusions reached and the Romanian Constitutional Court in its decision of 8 June 2004. 10.2009

(no 1258) that its legislation declared unconstitutional because it

purpose of use being enough of such an instrument, the wording was

too vague, without closer demarcated the powers and duties of

legitimate public authorities, and the individuals concerned did not provide,

Thanks to the absence of judicial control, sufficient guarantees against abuse

(decision in the unofficial English translation available on the

http://www.legi-internet.ro/english/jurisprudenta-it-romania/decizii-

It/romanian constitutional-court-decision-regarding-data-

URretention.html), the Bulgarian Supreme Administrative Court in the decision of

on 11 July. 12.2008 (information available on

http://www.edri.org/edri-gram/number 6.24/bulgarian-

administrative-case-data-retention) and also the Supreme Court of Cyprus in

decision of 1 July 1999. 2.2011 (information on

http://www.edri.org/edrigram/number9.3/data-retention-un-

lawful-cyprus). The legislation implementing the directive on data cited by the

retention is, according to the findings of the Constitutional Court at the present time, moreover,

review of the i in Poland or Hungary. The need to ensure that the

the most stringent safeguards and tools to protect the fundamental rights of individuals

in the handling of their personal data from electronic communications

even the European Court of Justice pointed out in its decision in the proceeding concerning

preliminary ruling of 9 June. 11.2010 in joined cases Volker und

Markus Schecke GbR GbR and Hartmut Eifert in the Land Hessen (C-92/09 and

C-93/09).



53. in the light of the above, the Constitutional Court notes that the contested

the provisions of § 97 para. 3 and 4 of Act No. 127/2005 Coll., on electronic

roads and amending certain related laws (the law on the

electronic communications), as amended, and an infected

Decree No 485/2005 Coll., on the extent of the traffic and location data,

the time of storage and the form and method of transmission to the authorities of the

authorized to its use, cannot be considered a constitutionally compliant,

Since it clearly violates the above constitutional limits as it landed

do not meet the requirements arising from the principle of the rule of law and are in a collision

with the requirements of the restriction on a fundamental right to privacy in the form of rights to

Informational self-determination within the meaning of article 87(1). 10, paragraph 1. 3 and article. 13 of the Charter, which

arise from the principle of proportionality.



54. Beyond the scope of the Constitutional Court considers it necessary to point out that

the shortcomings, which it led to no derogation of the contested legislation,

are not respected nor special legislation with which the contested

the provisions of § 97 para. 3 of the law on electronic communications indirectly

counts. In particular they cited the provisions of section 88a of the criminal procedure code governing the

terms of use of retained data by telecommunications

for the purposes of criminal proceedings, in the opinion of the Constitutional Court of the above

předestřené no constitutional limits and requirements by far does not respect, and of the

for this reason, the Constitutional Court also appears to be unconstitutional. However,

due to the fact that the claimant was not challenged in the design,

The Constitutional Court considers it necessary to appeal to the legislature, in

as a result of derogations, the contested legislation considered a change of the cited

the provision of section 88a of the criminal procedure code so as to become constitutionally Conformal.



VIII. C) Obiter dictum



55. only only in the form of



obiter dicta

The Constitutional Court notes that it is of course aware of the fact that the hand

in hand with the development of modern information technology and communication

resources are the emergence of new and more sophisticated ways

committing crimes, which you must face. However, the Constitutional Court

expresses doubts over whether the tool itself and

the preventive retention of traffic and location data by almost

any electronic communication is in terms of the intensity of the interference with the

the private realm of the large number of participants in an electronic communication

tool necessary and proportionate. This view is not in the European area

far from being an isolated, as the directive on data retention itself from the very

the beginning of its existence, faced a huge wave of criticism both from the side of

Member States (e.g. the Government of Ireland, the Netherlands, Austria and Sweden

tarried for a long time or still are awaiting with its implementation, and

the two latter countries does so despite the Commission publicly only

the threat of the initiation of proceedings before the European Court of Justice), on the one hand by the

lawmakers in the European Parliament, the European data protection supervisor

(see the conclusions of the Conference on the issue of data retention, organized by the Commission

3 December 2004. 12.2010 in Brussels, see

http://www.dataretention2010.net/docs.jsp) and the Working Group on

data protection established by art. 29 of Directive 95/46/EC (cf. her

the opinions, which are available at

http://ec.europa.eu/justice/policies/privacy/workinggroup/wpdo

URcs/index_en.htm), or by the non-governmental organizations (inter alia,

Statewatch, European Digital Rights or Arbeitskreis

Vorratsdatenspeicherung-AK Vorrat). All the above mentioned seeking

either the cancellation of the directive on data retention and replacement of


the Tools area and the preventive retention of traffic and location

data in other, more appropriate instruments (such as the so-called.



the date of freezing

responsible for fulfilling the requirements, enables the tracking and storage of

the required and selected data only for specific, predetermined

participant communication), or seeking its amendment, in particular in the form of

providing sufficient guarantees and means of protection concerned

individuals and tightening the requirements on the safety of stored data

the threat of their fraud and misuse by third parties.



56. The Constitutional Court has come to doubt even when examining whether the tool

area and the preventive retention of traffic and location data is

from the perspective of its original purpose (protection against security threats and

the prevention of the Commission of a particularly serious crime) tool

effective, especially when the existence of the so-called. anonymous SIM cards

beyond of the contested legislation anticipated range

held by the traffic and location data, and which are

observations of the police of the Czech Republic until 70% used to communicate

while committing a crime (cf.. "Police wants to ban

anonymous prepaid card, operators are defending ", iDNES.cz, 18. 3.

2010). In this context, reference may be made to the analysis of Federal Office

the investigation of Germany (



Bundeskriminalamt

) of 26 March 2004. 1.2011, based on the comparison of statistical data on

committed serious crime on the territory of the FEDERAL REPUBLIC OF GERMANY for the period before and after

the adoption of the law to data retention came to the conclusion that the

use the blanket and the preventive retention of traffic and

location data had almost no effect on reducing the number of committed

serious crimes, or to their investigation of (itself

analysis and specific statistics are available on the

http://www.vorratsdatenspeicherung.de/content/view/426/79/lang, de/).

Similar conclusions can be made when you glimpse the statistical

reports of crime in the territory of the United States published by the police

The United States, for example. comparison of statistical data for the period 2008

up to 2010 (available on the

http://www.policie.cz/clanek/statisticke-prehledy-crime-

650295. aspx).



57. Finally, the Constitutional Court considers necessary to express

doubts over whether it is at all desirable to private persons

(providers of services in the field of Internet, telephone and mobile

communication, in particular. mobile operators and commercial company

connection to the Internet) have been having permission to keep all data on the

They provide communication and customer service are their

provided (i.e. the data going over the range of the data are from the

the contested legislation required to keep), and wild with them for the purpose of

recovery of claims, the development of business and marketing

should have. This fact is the Constitutional Court seems like the adverse

in particular, due to the fact that in the law on electronic communications or in

other legislation and this permission is not its purpose and

regulated in greater detail, are not strictly defined rights and obligations,

the range of the stored data, time and method of storage, as well as not

detailed requirements for security and control

mechanisms.



58. in the light of the above, therefore, the Constitutional Court held under section 70

paragraph. 1 of the law on the Constitutional Court for the annulment of the contested provisions of § 97

paragraph. 3 and 4 of Act No. 127/2005 Coll., on electronic communications and

changes to some related laws (Act on electronic

communications), as amended, and the contested order No.

485/2005 Coll., on the extent of traffic and location data, the time of their

the storage and the form of and how they transfer to the authorities entitled to

their use, the date of publication of this finding in the journal of laws (section 58

paragraph. 1 of the law on the Constitutional Court).



59. The applicability of the already on-demand data for the purposes of criminal proceedings will be

must be examined by the general courts in terms of proportionality

interference with the right to privacy in each individual case.

In particular, the courts will have to weigh the severity of the crime, which had

be filled with the deed, for which the criminal proceedings in which they are

the required data are to be used.



The President of the Constitutional Court:



JUDr. Rychetský in r.