Slovenia: Information Commissioner challenges the data retention law
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Deutsch: Slowenien: Datenschutzbeauftragter stellt Vorratsdatenspeicherung in F...
The Information Commissioner of the Republic of Slovenia challenged on 19 March 2013 the national implementation of data retention directive before the Constitutional Court.
The Information Commissioner holds that the data retention provisions of the Act on Electronic Communications (ZEKom-1), which came into force on 15 January 2013, do not respect the principle of proportionality and that they have been transposed into the national law in contrast with the provisions of the Data Retention Directive 2006/24/EC.
Data retention has been in force in Slovenia since 2007 (telephone data) and 2009 (internet related data) with retention periods of 14 and 8 months respectively (in 2009 retention periods were shortened from previously 24 months). In the new Act on Electronic Communications, adopted to transpose the provisions of the amended telecommunications package, the legislator did not amend the provisions on data retention.
The Information Commissioner reasons that huge amounts of data are stored in advance about the electronic communications of each individual, regardless of whether he or she has fully obeyed the law or not. Whereas the principle of legality was respected, the principle of proportionality was completely neglected by the legislator. Processing of personal data is regulated in a manner that is not compatible with the rule of law since it does not respect the conditions allowing encroachments of human rights. Having taken an absolutist approach to the retention of data, the legislator also affected other rights such as the right to secrecy of communications, freedom of speech and movement. It did so without providing any evidence or analysis that such a measure is necessary and is reflected in a greater (if any) impact on the prosecution of criminal offences. In fact, the government has failed to provide any regulatory impact analysis after years of data retention that would justify its existence.
The aim of Directive 2006/24/EC was to establish mandatory data retention of electronic communications in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law. The purposes of data retention under ZEKom-1 however differ significantly – not only did the legislator broaden the scope by not limiting data retention only to serious criminal offences and extending it to all criminal offences, but the data may also be used for the purposes of ensuring national security and the constitutional order, and the security, political and economic interests of the state, as stipulated by the law governing the Slovenian Intelligence-Security Agency, and for the purposes of national defence as stipulated by the law governing the defence of the state. The Commissioner’s inspections also revealed that the retained data were also used in civil litigations, labour law disputes and misdemeanour procedures.
The Information Commissioner therefore decided to file a request to the Constitutional Court of the Republic of Slovenia to assess the constitutionality of data retention provisions. It also proposed that the request be given preferential treatment and that data retention provisions be temporarily suspended.
The Constitutional Court of the Republic of Slovenia may temporarily suspend the enforcement of the act in part or fully if the enforcement of the act would result in damaging and possibly irremediable consequences. There is no deadline in which the Court should decide - proposals for temporary suspensions are however usually dealt with in three months. If the Court upholds the proposal for temporary suspension, the decision of the Court takes effect the next day after the decision is published in the official gazette.
The Court’s decision regarding the preferential treatment of the case is based on an analysis on whether the case carries an important legal question. The request itself is assessed in a closed session. Should the Court agree with the reasoning of the Information Commissioner, the case is given preferential treatment, meaning that it will be dealt with, regardless of when it was submitted. It is difficult to estimate when this could happen (depending on the number of pending cases), but according to previous experiences it would most probably take more than a year.
Request to the Constitutional Court (only in Slovenian)
Electronic Communication Act (ZEKom-1) (only in Slovenian)
Information Commissioner of the Republic of Slovenia
Information Commissioner of the Republic of Slovenia challenges data
retention before Constitutional Court (19.03.2012)
(Contribution by Mr. Andrej Tomšič - Deputy Information Commissioner, Republic of Slovenia)