In The Matter Of The Application For Revocation Of Section 88A Of The Act No. 141/1961 Coll.

Original Language Title: ve věci návrhu na zrušení § 88a zákona č. 141/1961 Sb.

Read the untranslated law here:

43/2009 Sb.


The Constitutional Court

On behalf of the Republic of

The Constitutional Court ruled under SP. zn. PL. ÚS 24/11 on March 20. December 2011 in

the plenary consisting of the President of the Court, Pavel Rychetského (reporter judge) and

judges of Stanislav Duchoně, Bumpkin, Vojena, Pavla Güttlera

Holländera, Ivana Janů, Vladimir Crust, Dagmar Lastovecké, Jiří

Mucha, Jan Musil, Jiří Nykodýma, Miloslava Excellent, Eliška

Wagner and Michael Židlické about the design of the circuit court for Prague 6,

who is the President of the Senate 37 Nt JUDr. Christopher, on the cancellation of the New section 88a

Act No. 141/1961 Coll., on criminal court proceedings (code of criminal procedure), in

as amended, with the participation of the Chamber of deputies of the Parliament

The Czech Republic and the Czech Senate as participants


as follows:

The provision of section 88a of the Act No. 141/1961 Coll., on criminal court proceedings

(code of criminal procedure), as amended, abrogating the day 30.

September 2012.



Recap of the proposal

1. The Constitutional Court was on 27. May 2011 served by the district

Court for Prague 6 ("petitioner"), accompanied by submission of 1 September.

July 2011, the repeal of section 88a of the Act No. 141/1961 Coll. on criminal

judicial proceedings (code of criminal procedure), as amended, (hereinafter also

' the contested provisions ').

2. the applicant, before which the proceedings are pending on the draft military police on

the issue of the disclosure of data by telecommunications service

under section 88a of the criminal procedure code, considers that this proposal cannot

decide that provision due to a conflict with the constitutional order. In

in this context, refers to the legal conclusions contained in the constitutional

of the Court of 22 March. March 2011, SP. zn. PL. ÚS 24/10 (94/2011 Sb.)

in particular, its paragraph 54, according to which the contested provision does not respect

some constitutional limits and requirements. It considers that this provision

It is not in accordance with the Basic Law on the protection of secret messages

administered by telephone, telegraph or other similar device in

meaning of article 87(1). 13 of the Charter of fundamental rights and freedoms ("the Charter"),

as for the case of regulation of telecommunications traffic data for

the purpose of the clarification of facts important for criminal procedure does not contain

adequate guarantees of the rights of users of electronic communications services, which

would be comparable to those for a case tapping and regulation

record of telecommunications assumes § 88 of criminal procedure. In

the case of the two institutes, the procedural steps to fundamentally breaks up, without

It was obvious why the legislature narrowly went to the

modify the process under section 88 procedure, code of criminal procedure, while the procedural

the procedure under the contested provisions conceived the benevolent considerably. From the official

the activity is known to the claimant, this benevolence makes

proposals on the inflation process procedure, in particular by the police

The United States, the authorities of the Customs Directorate, military police authorities,

which makes the role of the Court as a guarantor and protector of the rights of individuals guaranteed by the

the constitutional order in criminal proceedings.


Course of the proceedings before the Constitutional Court

3. Within the meaning of § 42 para. 4 and § 69 para. 1 Act No. 182/1993 Coll., on the

The Constitutional Court, as amended, (hereinafter referred to as "the law of

The Constitutional Court ") posted by Constitutional Court the application for annulment

the contested provisions on the parties.

4. The Senate in its comments of 29 July 2003. July 2011, signed its

Chairman Milan, briefly summed up the progress of a Private legislative

process. The contested provision has become part of the criminal procedure code on the

the basis of the amendment made by Act No. 265/2001 Coll., amending

Act No. 141/1961 Coll., on criminal court proceedings (code of criminal procedure), in

as amended, Act No. 140/1961 Coll., the criminal code, in the

as amended, and some other laws, the subject of

significant amendments to the criminal procedure reform. The Senate hearing

Amendment of this provision, however, it was noted that to his

Supplement to the Government's draft law was based on one of the two

amendments proposed by the various committees. Despite the fact that the Government has supported

with the arguments about the constitutional appropriateness of one of them, however, the Chamber

the Chamber of Deputies preferred the other one, who, as a condition of the communication regulation

information about telecommunication traffic closer did not specify

the severity of the crime for which he is leading the criminal proceedings. In conclusion, the

The Senate said that, at the time of the adoption of the contested provisions referred to section 88a

the criminal procedure code to a somewhat spořejšímu range used for operating and

location data, which laid down the law, yet no 151/2000 Coll.

on telecommunications, and amending other laws.

5. The Chamber of deputies in its comments of 1 April 2005 August 2011,

signed by its Chairwoman Miroslava Němcová, also briefly summarised the

the course of the legislative process, to which she added that in response to find sp.

Zn. PL. ÚS 24/10 processes in cooperation with the Ministry of the Interior

The Ministry of Justice and the Ministry of industry and trade proposal

amendment to the law on electronic communications and the criminal procedure code. Therefore, you can

assume that this autumn the Government proposal

dealt with by the Chamber of Deputies.

6. all parties agree with the abandonment of the oral

the negotiations. Because neither the Constitutional Court did not expect from this meeting for more

clarification of the matter, dropped from him in accordance with § 44 para. 2 of the Act on the constitutional

the Court.


The diction of the contested provisions

7. The subject of the assessment of compliance with the constitutional order is the provision of section 88a

Code of criminal procedure, which reads as follows:

"(1) if in order to clarify the facts important for criminal proceedings to be

check the details about the telecommunications operation, which are

the subject of telecommunications secrecy or which are covered by the protection of

personal and intermediary data, the President of the Chamber, and in the preparatory

management of the judge, to legal or natural persons carrying out

telecommunications activity, indicated to him and in preliminary proceedings, either

to the Prosecutor or police authority. Command to determine the data on

the telecommunications service shall be issued in writing and justified.

(2) the statement referred to in paragraph 1 is not necessary if to provide information can be

the consent of the user of telecommunications equipment, to which you want the data on

keeping the telecommunications operation apply. ".


The conditions of the locus standi of the applicant

8. According to the article. 95 para. 2 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") and section

64 para. 3 of the law on the Constitutional Court, the Court is entitled to submit a proposal to

repeal of the law or its individual provisions to be

applied in the framework of its activities, if the conclusion on the

their conflict with the constitutional order.

9. District Court of Prague 6 handed the proposal to repeal section 88a of the criminal procedure code

in connection with the decision on the request of the military police on the issue of

the communication of data by telecommunications service in the

case of reasonable suspicion of a crime a threat to classified information

in accordance with § 317 of paragraph 1. 1 of Act No. 40/2009 Coll., the criminal code. The procedure for

This request is before the plaintiff conducted under SP. zn. 37 Nt 2309/2011.

Because the contested provisions set out the powers of the President in question

the Senate, respectively, in the preliminary proceedings, the judge, as well as the conditions on the

basis for issuing the communication of these data is

Obviously, that has to be applied in a particular case. This is also given by the active

evidence to this Court of the petition for its cancellation.

In the.

Assessment of the competence and constitutional conformity of the legislative process

10. in the proceedings on the revocation of laws or other legislation shall be assessed

The Constitutional Court pursuant to § 68 para. 2 of the Act on the Constitutional Court, was whether the law

or other legislation adopted and published within the limits of the Constitution laid down

competence, whether it has been accepted by the constitutionally prescribed way and whether its

the content is in accordance with constitutional law, and in the case of other legal

Regulation and laws.

11. As mentioned in the comments of the Senate, the contested provision was

the criminal procedure code, followed by the Act No 265/2001 Coll., and after

This law came into force, it was not subject to any further changes or

the Tween. Whereas, in the case in question is outside of any

doubt that the Parliament of the Czech Republic had in the meaning of art. 15 paragraph 1. 1

The Constitution, the competence to adopt the Act, the Constitutional Court came up to

the assessment of whether its adoption has been constitutionally prescribed way. Came out

While the observations of the parties, as well as from těsnopiseckých messages

The Chamber of Deputies and the Senate, and other publicly available documents

relating to the legislative process.

12. the contested provisions became part of the Government's draft law, which

was circulated to members as house printing no 785/0 (Chamber

the Chamber of Deputies, 3. the electoral period, 1998-2002), on the basis of the amendment

the proposal of the Committee for defence and security. The Bill, as amended by this

the amendment was approved by the Chamber of deputies in the third reading

on 25 April. in May 2001, at its 36. the meeting voted for it out of 169

174 deputies present, none of them were against and five members of the

abstentions. The Senate has discussed and approved the draft law, which was

the Senators sent out as Senate document No No 66/1 (Senate, 3. the term of Office,

2000-2002), 29 April 2004. June 2001 on his 8. meeting. From the present 60

Senators voted for its adoption 58, two abstained. Law

It was day 2. July 2001, delivered to the President of the Republic, to 11.

July 2001 signed. On 31 December 2004. July 2001 was promulgated in the

The collection of laws under no. 102 in the amount of 265/2001 Coll., and the effectiveness of

acquired on January 1. January 1, 2002.

13. the findings of the Constitutional Court considered sufficient for the conclusion

that the contested provision was added to the code of criminal procedure law adopted

constitutionally prescribed way. In so doing, it also took into account that

the applicant in its proposal in no way questioned the constitutionality of the adoption and

the release of this law. Because of this, he went to the factual assessment of the

the contested provisions.


The right to respect for private life, in the form of the right to information


14. At the very beginning of self-assessment it should be stressed that the constitutional

the Court on the issue of compliance of the contested provisions with the constitutional order

partially expressed already in its finding of PL. ÚS 24/10, by which the

design of a group of MPs set aside section 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,

as well as implementing decree to the following provisions. These provisions

provide natural and legal persons, which provide public

communications network or publicly available electronic service

communications, the obligation to keep this work after a period of time

created and handled traffic and location data. The contested

the provision was not the subject of proceedings in a particular case, the Constitutional Court but

could not overlook its factual link with the then contested the legal

editing, for until it was defined, though not exclusively, the purpose of the

obligations, as well as the conditions under which it was possible to use this information. From

This point of view so all those provisions form a

comprehensive data retention legislation in question for the purposes of criminal

management, therefore to it as a whole in its assessment had to take account of

The Constitutional Court.

15. The legal conclusions contained in that the award can be made in the

things, not only in terms of the definition of the General background for the review

the contested provisions, but also his own assessment. In conformity with the

the applicant considers that the Constitutional Court article. 13 of the Charter, the relevant

criteria for the review of the contested provisions, because, as noted in the

its settled case-law, the protection afforded by the secret reports

telephone, telegraph or other similar devices is not just

their own content, but also other data registered in the

the registration of telecommunications in relation to specific persons

[cf. e.g. find dated January 22, 2001, SP. zn. II. the TC 2000 (N 502/

11/21 SbNU 83); the award of 13 April. February 2001, SP. zn. IV. TC 536/2000 (N

29/21 SbNU 251); the discovery of 27 June. August 2001, SP. zn. IV. TC 78/01 (N

123/23 SbNU 197); the award of 13 April. September 2006, SP. zn. I. TC 191/05 (N

161/42 SbNU 327); the discovery of 27 June. September 2007, SP. zn. II. TC 789/06 (N

150/46 SbNU 489)]. In terms of the scheme of the fundamental rights guaranteed

the constitutional order is, however, necessary to assess the contested provision in

the wider context, particularly in terms of the rights of users of services

electronic communications on the respect for private life, the guarantee of

It can be inferred from article. 7 (2). 1, art. 10, 12 and 13 of the Charter, as well as from article. 8

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

The fact that the Charter defines this fundamental right in more places,

does not mean that the interpretation it should not be seen as a whole.

Given the close interdependence of requirements on respect for privacy and his

protection with the development of technical and technological capabilities that increase the

freedom-threatening potential of the State, it is even in the interpretation of the individual

its provisions necessary to account for the purpose of generally-understood and

dynamically developing privacy rights as such and consider

him in his period of integrity (cf. find SP. zn. PL. ÚS 24/10 points

28 and 31).

16. In the last-cited finding it was stated that "the primary function of law

the 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. " (paragraph 29). Aspect of this

the law is explicit in article. 10, paragraph 1. 3 of the Charter, in accordance with

that everyone has the right to protection against unjustified collection,

publication or other abuse of information about yourself. In this way,

defined by the basic law, which can be used in conjunction with article. 13 of the Charter, hereinafter called

Mark as the right to information self-determination [to that notion of CF. find

of 17 May. July 2007, SP. zn. IV. TC 23/05 (N 111/46 SbNU 41), points

34 and 35; find of the day 1. December 2008, SP. zn. I. ÚS 705/06 (N 207/51

SbNU 577), paragraph 27; find SP. zn. PL. ÚS 24/10, paragraphs 29 to 35], completes the

together with the freedom of personal freedom in the spatial dimension, (front),

the freedom of communication, and other constitutionally guaranteed fundamental rights

the personal sphere of the individual, the individual's integrity as a whole

a necessary condition for the existence of the individual and the development of a dignified human life

not at all to be respected and strictly protected (paragraph 31). If it is not

solo travellers guaranteed the ability to patrol and inspect the contents and scope of the

personal data and information provided by, which are to be published,

kept or used for other purposes than the original, and therefore he will not be

have the ability to recognize and evaluate the credibility of their potential

the communication partner and, where appropriate, adapt it and their actions, then

necessarily limited to the Suppression of his rights and freedoms, which is not in the

a free and democratic society is acceptable (see also

the German Federal Constitutional Court, decision of 15 April. December

1983, BVerfGE 65, 1-


, para. 154).

17. the concept of the right to Informational self-determination is compatible

also, the findings of the European Court of human rights, which protect

deduced from the right to respect for private and family life under article.

8 of the Convention. This Court in a number of its decisions, he stressed that the collection and

the retention of data relating to the private life of individuals fall

under the scope of that article, since the expression "private life" may not be

interpreted restrictively. For interventions into the privacy of individuals while

called, inter alia, interventions in the form of checks, the mail content data,

interception of telephone calls (e.g. the decision of 6 September 1978 in

complaint No. 5029/71-

Klass and others v Germany

, paragraph 41; decision of 2 July 2002. August 1984 in complaint No. 8691/79


Malone v United Kingdom

, paragraph 64; decision of 24 December 2002. April 1990 in complaint No.


Kruslin against France

, paragraph 26; decision of 25 June 2002. March, 1998 in the matter of complaint No.


Kopp against Switzerland

, paragraph 50), or the collection of data on telephone connections (eg.

decision of 25 June 2002. September 2001 in complaint No. 44787/98-

P. g. and j. h. v United Kingdom

, paragraph 42; decision of 16 December 2003. February 2000 in complaint No.


Amann against Switzerland


18. the Constitutional Court notes that general background concerning the

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

self-determination, including relevant case-law European Court of human

rights or foreign courts, expounded in paragraphs 26 to 35

finding SP. zn. PL. ÚS 24/10, which at this point with regard to the

their relevance in the matter referenced.


A review of the contested provisions from the standpoint of the fundamental right to information


19. the contested provisions determined by law enforcement authorities

permission, for the purpose of clarification of facts important for criminal

Management received from the operators of electronic communications services details

about telecommunications traffic that are otherwise subject to

telecommunications secrecy or are covered by the protection of personal and

placement of the data. It is clear that the access of public authorities to

These data without the consent of users of these services is due to the

options for inferred from them information about the location, time, participants and the way

their communication immediately and noticeably affects their right to

Informational self-determination, as it is in this range deprives the possibility

themselves decide whether this information shall make available to other people. This

Although it does not preclude the admissibility of such fact to the intervention, but for

it comply with the conditions arising from the constitutional order. It is primarily

to ensure that the restriction was established on the basis of the law and that its

the legislation fulfils the requirement of certainty resulting from the principles of the legal

the State, therefore, to be precise and clear in their formulations and at the same time

predictable in the sense that potentially the individuals concerned

provide sufficient information about the conditions under which

the restriction of their fundamental right to occur (cf. find SP. zn. Pl. ÚS

24/10, paragraph 37; also for example. the decision of the

Malone v United Kingdom

, paragraph 67; decision of 4 December 2002. May 15, 2000 in the matter of complaint No.


ROTARU against Romania

, points 55 to 57). At the same time limiting the right to Informational self-determination

Watch constitutionally qualified purpose, which is to protect other fundamental

rights or the public good, while the assessment of these colliding

values must be mindful of the imperative of minimizing interference with the fundamental rights and

freedoms, while taking into account their essence and meaning. Intervention in the

This fundamental right must be upheld in terms of proportionality,

the assessment (in the broader sense) is composed according to the settled case-law

The Constitutional Court of three steps. The first step is assessed the eligibility of the

specific measures for the fulfillment of its purpose (or its suitability),

which means, whether it is even able to reach the reference of legitimate

the objective is the protection of other fundamental rights or public good.

On the necessity of it is investigated whether he was in the selection of

resources used the one that is the most fundamental right.

Finally, in the third and final step is the subject of an assessment of its

proportionality in the strict sense, that is, whether the injury on the basic law is not

disproportionate in relation to the intended target. This means that the measures

restricting fundamental human rights and freedoms shall not, in the case of a collision

the fundamental right or freedom with the public interest, their negative

the consequences outweigh the positives, which represents the public interest in these

[cf. e.g. find dated October 12, 1994, SP. zn. PL. ÚS 4/94

(N 46/2 57 SbNU, 214/1994 Coll.); the award of 13 April. August 2002, SP. zn. PL.

TC 3/02 (N 105/27 SbNU 177, 405/2002 Coll.); the discovery of 28 June. January 2004

SP. zn. PL. ÚS 41/02 (N 10/32 SbNU 61, 98/2004 Sb.)].

20. the prosecution of criminal offences, or their prevention, detection and

the investigation, as well as a fair punishment of their perpetrators,

no doubt mark a constitutionally qualified public interest or purpose,

in General, justifies the intervention of that right [cf. findings from

on 23 December 2005. May 2007, SP. zn. II. TC 615/06 (N 88/45 SbNU 291), in particular

section 16; find SP. zn. II. TC 789/06, paragraphs 15 to 22; the discovery of 29 April.

February 2008, SP. zn. I. ÚS 3038/07 (N 46/48 SbNU 549)]. Its purpose is to

sanctioning the most serious violations of fundamental rights and freedoms or

cases of damaging the constitutional order or legally protected public

goods from the State, which is at the same time it provided legal protection

in the broader sense of the word. The public interest even as the purpose

600 article. 8 (2). 2 of the Convention, that allows, if necessary in

democratic society, to intervene with the right to respect for private

life in the interest of the protection of the rights and freedoms of others, national and public

safety, the economic well-being of the country, for the prevention of disorder or

crime or the protection of health and morals. At the same time it assumes i

harmonisation of the obligations of the providers of electronic communications

to retain certain data and to ensure their availability in accordance with directive

European Parliament and Council Directive 2006/24/EC of 15 December 1999. March 2006 on the

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 (hereinafter referred to as

"data retention directive"). As is clear from its article. 1 (1). 1,

the aim of the data provider of the retention of certain services under the

This directive is to ensure the availability of such data for the purposes of

investigation, detection and prosecution of serious criminal offences, as they are

defined by each Member State in its national law


21. With regard to the above criteria, it is not disputed that any intervention

the fundamental right to Informational self-determination as a result of regulation

the communication of data by the telecommunications service of a person has

the legal basis of the contested provisions. You can also, without further

noted that such a measure is appropriate to attain the reference

purpose, and therefore stands in the first step of the proportionality test. The constitutional

the Tribunal, therefore, proceeded to the second step, which is an assessment of its


22. The Constitutional Court shall examine the case, the contested provision in particular

the control of constitutionality, that is, on a proposal from the Court, which it monitors primarily

that, in proceedings before him or his decision to avoid a breach of the

the constitutional order. However, his assessment cannot be limited only to the

the question whether this provision due to the circumstances of the case and the seriousness of

of the crime, having committed to the authorities on law enforcement

reasonable suspicion, allows you to order the communication of data in a particular case

about telecommunications service for its respecting the limitations

arising out of the principle of proportionality. Such an assessment would be

proposing to the Court undoubtedly entitled to, even without the decision of the Constitutional Court

Since the contested provision does not impose on him the obligation to issue the command.

If, therefore, came to the conclusion about its inadequacy in terms of the right to

Informational self-determination, nothing would impede him to request authority law

in criminal proceedings has not complied with.

23. the contested provisions but in an abstract sense, has a wider overlap, since

represents the full legislation about data discovery

telecommunications service in criminal proceedings and, therefore, defines not only

What is subject to the applicable legislation, but also its something

the subject is not. The plaintiff alleged shortcomings are eligible

negatively reflected in fundamental rights and freedoms of the users of the services

electronic communications, as they may be affected by not only

the actual communication of data to the authorities active in criminal proceedings,

But even their disposition with them, for example, by making them available

other persons or unauthorised use for other purposes. It is, therefore, whether

the contested provision provides in terms of the fundamental right to information

sufficient guarantees against abuse of self-determination of data during

the entire duration of the criminal proceedings. These guarantees must be

understand how to establish the conditions under which the competent authorities have

access to data by telecommunications traffic, and the

the existence of an effective control of their observance. In this context, the constitutional

the Court has previously stated that "If the criminal law implementation

public interest in the prosecution of crime using the robust tools

the use of which has resulted in serious restrictions on personal integrity and

fundamental rights and freedoms of the individual, then when their application must be

respected constitutional limits. A limitation of personal integrity and

the privacy of people (i.e. to break the respect to them) and by the public

can can occur only exceptionally, ... If this is acceptable from

the perspective of legal existence and observance of the effective and concrete safeguards against

arbitrage. " [cf. find SP. zn. PL. ÚS 24/10, paragraph 36; also find from

on 7 December. November 2006, SP. zn. I. ÚS 631/05 (N 205/43 SbNU 289), paragraph

26]. The need for such guarantees have yet to

the individual becomes more urgent in today's time, when due to an enormous

the development and the emergence of new and more complicated information technology and

electronic communications (in the so called cyberspace), mainly due to

the development of the Internet and mobile communications, recorded every minute,

collected and made available to thousands of really, indeed, millions of data, information and

information, which extend into the privacy of each individual,

Although he consciously in it didn't want to let anyone (cf. find SP. zn.

PL. ÚS 24/10, paragraph 50).

24. the provisions of the contested regulation shows that communications

keeping the telecommunications service expressly makes only by

such a measure must pursue the purpose of the "clarification of facts important

for criminal proceedings ". The Constitutional Court has considered that in this way the modified

the limits of the fundamental right to Informational self-determination are formulated very

broadly and vaguely, and essentially allow you to request and use

of the relevant data by the bodies active in criminal proceedings each time

If they can admit any connection with ongoing criminal

proceedings. While aware of the obligations of the public authorities to apply

podústavní legislation in accordance with the constitutional order, of which at

that case, also of the obligation to examine, in each particular case,

whether the finding of data about a person's telecommunications service

It is not because of the seriousness of the offence, the possibility of achieving the purpose of the

of criminal proceedings or for any other reason a disproportionate interference in the

its basic rights. Also considers it important that the protection

fundamental rights and freedoms in each particular case shall be subject to the control of

by an independent and impartial tribunal, as deciding the issue

the command in question confers on the contested provision, the presiding judge,

and in the preliminary proceedings, the judges, the command must be issued

in writing and be justified. However, this is about guarantees, which, while they allow

provide protection against undue encroachment on the right to information

self-determination with regard to the facts of a particular case, they cannot

However, the weaknesses inherent in the uncertainty and excessive

the generality of the contested legislation by themselves in General, replaces

account of the intensity of a legislature of public interest to limit

the fundamental right or freedom in the case of individual criminal acts and

the way (that is, a specific form of) this limitation, including the aforementioned

subsequent guarantees provided with the data, which are within the limits

the constitutional order laid down a political decision, its own

a detailed abstract considerations. Such a procedure, the courts should not

article. 4 (4). 2 of the Charter, provided that the limits of fundamental rights and freedoms

should be specified only by law, because only the legislature is constitutionally open to the

order in its discretion respecting the principle of

of proportionality, he admitted fixing certain obligations take precedence over the constitutional

policy aprobovanému the public interest before the basic law in a type-

defined legal relationship. Leaving the determination of the limits of constitutionally compatible

only the decision-making practice of the courts would not be compatible even with

the requirement of legal certainty, since any interference with the fundamental right to

Informational self-determination is not due to the uncertainty of the current legal

adjustments for individuals of the predictable to the extent which would correspond to the

the severity of the possible negative consequences for his privacy. Therefore, you can

noted that this uncertainty is a major lack of

the contested legislation, in terms of its constitutional review.

25. If the legislature as the only condition for finding data

about telecommunications traffic that must lead to the clarification of the

the facts important for criminal proceedings, created the basis for the

restriction of the fundamental right to information self-determination to such an extent that

completely sidesteps the need of such a requirement with respect to the intervention by

the objective pursued (cf. find SP. zn. II. TC 789/06, paragraph 16). Permissions

bodies active in criminal proceedings to find out details about how, with whom and how often

a person communicates, and from out of space and the means to do so,

cannot be given the intensity with which interferes with this

the basic law, considered to be the normal or routine resource

Prevention and detection of crime, but its use may occur

only if to achieve that purpose, there will be another, and in

relation to this basic law more friendly procedure. Already, the mere possibility of

familiarize yourself with the details of communication and movement of a person without

consent means the restriction of its right to have information about the

your privacy, regardless of whether or not depending on their

relevance to criminal proceedings or not any failure to their subsequent

the destruction.

26. the Constitutional Court States that the risk of overuse (and with it the

abuse) of this measure as a normal or routine resource is not

only in the plane of the abstract but speaks volumes about him as well as the relevant

statistical data. As stated already in its finding of PL. ÚS 24/10

(paragraph 49), according to a report on the situation in the area of internal security and

public order in the territory of the Czech Republic for the year 2008, prepared by the

The Ministry of the Interior, it was in that year on the territory of the Czech Republic

found a total of 343 799 crimes, explained 127 906

criminal offences. In the same period represented a number of requests for

providing information about telecommunication traffic, respectively.

traffic and location data number 131 560 [cf. report from the Commission

The Council and the European Parliament of 18 December 2003. April 2011 titled "Evaluation

report on the data retention directive (Directive 2006/24/EC) ", accessible

to, CELEX: 52011DC0225; the official data

The European Commission has requested from the United Party]. According to similar reports

drawn up by the Ministry of the Interior for the year 2009 was this year found

a total of 332 829 offences, and explained there were 127 604.

Number of requests for the provision of the data, however, according to the report, the

The European Commission has reached up to 280 271 numbers, more than twice the number of

from the previous year. These data suggest the conclusion that tool in the form of

request, and the use of retained data (including data on

abandoned calls, on which the contested provision at all

does not remember) is a law enforcement authorities used in a significant

the scope of, even for the purposes of the investigation of the normal, i.e.. less serious criminal


27. In addition to the expression of the requirement of necessity in a democratic society would

the contested legislation should also contain the following particulars of the management

by authorities active in criminal proceedings. Part of it should be

clear and detailed rules with the minimum security requirements

the stored data, guaranteeing that they will not use them for

other than the intended purposes. In particular, prevent access

of third parties and the determination of the procedures leading to the protection of their integrity

and confidentiality, as well as the procedures for their destruction (find SP. zn. Pl. ÚS

24/10, paragraph 50). Effective protection against unlawful interference in the basic

the rights and freedoms of the persons concerned should be ensured through the

the obligation to inform the person of the user additional services

communication, if this person is known, about how she related to the operating

and location data have been communicated to law enforcement authorities.

At the same time, this person should have a legal remedy, in whose

basis would demand her judicial review of their progress in obtaining and

the management of the data. An exception from this requirement should be

can be accepted only from the grounds laid down by law, which shall prevail

interest in maintaining the confidentiality of this information. Even in these cases, but

the legislature must guarantee that the assessment of the competent authorities, whether they are

reasons for the confidentiality of this information, it was not arbitrary, but were subject to the

compulsory judicial review (see also similar findings contained in the decision

the German Federal Constitutional Court of 2 July. March 2010 SP. zn. 1

BvR 256/07, 1 BvR 263/07, 1 BvR 591/08, in particular paragraphs 281 and 282). In this

the context of the Constitutional Court adds that he sees no reason for which would be

the scope of the guarantee provided for by law in relation to the regulation of the communications

keeping the telecommunications operation had in terms of their content

distinguish, if such differentiation does not follow from the nature of things, from the guarantee

laid down in relation to the regulation of the interception and recording of telecommunications

traffic, regardless of the current legislation, as in both

cases, the intensity of the interference with the right to privacy.

28. Finally, the legislator should consider the effectiveness of the determination of the

more detailed rules on the content of the command to the communication of data on the

keeping the telecommunications operation, or the setting of certain

formal requirements for the request by the institutions operating in the

criminal proceedings in such action. Due to the annual number of applications for

Regulation of the data communication in 2009 even surpasses

a quarter of a million, it would be undoubtedly an illusion to assume that these

application in practice are not limited merely to the minimum information and communication

short justification. Because of this, you can imagine that these

the necessary content requirements have been defined at the level of the law.

Their purpose would be to ensure that the judge will be in your

deciding to obtain all the necessary information for

authorities active in criminal proceedings without much difficulty available, eg.

information about the user or the owner of the address of the user or device,

If such information can be obtained from the appropriate service provider

electronic communications, without jeopardising the purpose of the criminal

control. To do this, you must add that today is some content

the elements of the command General of the acclaimed interpretation of the contested

provisions (cf. Šámal, p. et al. The criminal procedure code. Comment. I. part. 6.

release. Prague: c. h. Beck, 2008, p. 748), while their non-observance

can result regardless of the absence of their legal provisions, breach of the

the basic rights of individuals to information self-determination. In this

the context of the Constitutional Court emphasises the requirement of consistency and efficiency

judicial control, in particular with regard to the nature of the proceedings, which

the participation of the counterparty is not expected before the Court decision. The role of the Court as

is in the "balancing" the procedural situation, and is not permitted to

the Court got into the position of a mere "helper" public action, because

must always be impartial (find SP. zn. II. TC 789/06, paragraph 17).

29. Already above, justify the conclusion that the contested provision

not stand in the second step of the proportionality test, since the collection of data

about telecommunication traffic by the institutions operating in the

criminal proceedings does not make the requirement of necessity and for its application

does not provide for effective means of control, which would enable the effective protection

the fundamental right to information self-determination of the users in the course of

around the period when these authorities have the information. For completeness

However, it should be noted that would have failed even in his third and at the same time

the final step, whose essence is the assessment of proportionality in the strict

the meaning of. The contested provision had not given any meaning to the nature and

the seriousness of the offence for which the criminal proceedings shall be conducted,

Despite the fact that these facts are already in General, significant

for the result of weighing in the collision standing fundamental right to

Informational self-determination and the public interest in preventing and sanctioning

criminal offences. In other words, the public interest or for the

the fulfilment of the above conditions the need to grant priority in the

a collision every time. On the contrary, it is always necessary to consider whether, given the importance

the object of a specific criminal offence, which was to be committed, outweighs the interest in the

his prosecution of the individual to make decisions himself above the law about whether and to whom

make available your personal data. It is for the legislature to determine in the case of

which crimes the public interest prevails, while in your

the decision shall, mutatis mutandis, for example. in the case of the determination of the amount of the criminal

rates, take into account their seriousness. It remains to add that the same principles of

It is based on and limit the possibility to issue the order to wiretap and record

telecommunications pursuant to § 88 para. 1 code of criminal procedure only on

criminal proceedings for a particularly serious crime or for another intentional crime

Act, to which the prosecution agrees to a renowned international treaty, though

the legislature could have referred to the enumeration of offences defined in other ways.

Similarly, the data retention legislation in accordance with the directive on data retention

States that its aim is to ensure the availability of such data for the purposes of

investigation, detection and prosecution of serious crime, which is

should be noted that this finding of the specified requirements in relation to

No they do not render adequate transposition by legislators of this directive,

but on the contrary, are fully in accordance with its defined purpose as follows.


The conclusion of the

30. In summary, that, although section 88a of the criminal procedure code contains the full legal

Edit the access of law enforcement data

keeping the telecommunications operation, this approach explicitly makes

only by pertinent data enables you to determine solely to clarify the

the facts important for criminal proceedings. Assessment of the compliance with this

terms confers on the President of the Senate, of the basic law with regard to

the purpose pursued, since access to such data, edited by in essence

as a regular means of providing evidence for the purpose of criminal proceedings, and

It even maintained for any crime. While such restrictions

given the seriousness of the interference with the private sphere of the individual

will stand only if it respected the conditions resulting from the

the principle of proportionality. This means that the access of law

criminal proceedings, to information about telecommunication operation

applicable only under the assumption that the purpose of criminal proceedings cannot be

to achieve otherwise, that the legislation contains sufficient guarantees to

avoid the use of these data for other than the intended by law

purpose, and that restrictions to the right of the individual to information self-determination is not

disproportionate interference having regard to the importance of specific social

relationships, interests, and values, which are the object of the offence, for which

It is guided by the criminal proceedings in question. This limitation of the contested provision

does not respect, while this lack cannot be deleted or

through the laid down judicial control. The courts in its

deciding on the regulation of the data communication may provide

the protection of the fundamental right to information self-determination with regard to the factual

the circumstances of the particular case, its case-law, however, cannot substitute

the absence of sufficiently specific statutory legislation, which is in the meaning of article 87(1). 4

paragraph. 2 of the Charter a prerequisite limitations of fundamental rights and freedoms in General


31. Based on the above reasoning, the Constitutional Court notes that

the contested provision is contrary to the fundamental right to respect for

private life in the form of the right to Informational self-determination according to art. 10

paragraph. 3 and article. 13 of the Charter, as well as the article. 8 (2). 2 of the Convention, as it allows

law enforcement authorities interfere with him in order to prevent and

prosecution of criminal offences in the manner of noncompliant request

the proportionality of the restriction arising from the principle of the rule of law

expressed in the article. 1 (1). 1 of the Constitution. For completeness, it also adds that

referred to derogatory, although content does not touch the reason and section 88a of paragraph 1. 2

Code of criminal procedure, the Constitutional Court, however, went up to its abolition, as

meeting a proposal only in relation to paragraph 1 of the contested provisions would

He became obsoletním.

32. In conclusion, the Constitutional Court notes that that derogation reasons cannot be

interpreted in such a way that the application of the contested provisions should in

the case of the users of electronic communications services every time a

result in a violation of their fundamental right to privacy. The contested

the provisions of the permit to the Court in a particular case

the adequacy of the regulation, the communication of data about telecommunications

the operation in terms of the fundamental right to Informational self-determination and the application

law enforcement authority in unjustified cases dismissed.

Therefore, you cannot make an a priori conclusion that every decision issued by the

under section 88a of the criminal procedure code prior to the publication of this finding in the collection

laws in violation of the fundamental right or freedom of

users of electronic communications services. Also, this finding is not

no reason, that would generally defended the use of the information obtained so far

by telecommunication operation in the context of the taking of evidence in the criminal

control. Permission of general courts to assess as part of their decision-making

activities, whether the procedure bodies active in criminal proceedings

There has been a breach of fundamental rights or freedoms, these conclusions is not

without prejudice to the. At the same time the Constitutional Court believes that the above deficiencies

create significant scope for disproportionate or arbitrary procedure bodies

law enforcement in detecting and dealing with the

the information that due to possible future negative effects makes it impossible to

leaving the contested provisions in effect on more than just the minimum

the necessary transitional period. The Constitutional Court therefore-even when consciousness training

the new legislation-put down the effectiveness of derogačního opinion in relation to

the contested legal provisions applicable only for a period of up to 30. September 2012

shall be considered sufficient for the completion of the new legislative process.

33. For all these reasons, the Constitutional Court had decided, pursuant to section 70 para. 1

the law on the Constitutional Court, as is stated in the operative part of the award.

The President of the Constitutional Court:

JUDr. Rychetský in r.

Different opinion referred to in section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, adopted the decision of the full Court Judge Ivana