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.
