Bulgaria’s Constitutional Court scraps data retention provisions

Written by on March 12, 2015 in Bulgaria - Comments Off on Bulgaria’s Constitutional Court scraps data retention provisions
Photo: Clive Leviev-Sawyer

Bulgaria’s Constitutional Court ruled on March 12 to declare provisions in the Electronic Communications Act mandating the bulk collection of telecommunications data as unconstitutional.

The court did not give further details on its reasoning, saying that the full text of the decision would be published at a later time. Three of 12 judges on the court signed a special opinion, the court’s statement said.

The formal challenge against the data retention provisions came from Ombudsman Konstantin Penchev in April 2014, only a week after the European Court of Justice (ECJ) ruled to declare the 2006 EU directive that authorised such bulk collection as invalid.

The provisions targeted by Penchev were passed by Bulgaria’s Parliament in 2010 to implement the EU directive – specifically, requiring telecommunication services providers to save all traffic data for a period of one year, which can be extended by a further six months at the request of law enforcement.

The ECJ ruled that the directive’s “wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data” was in breach of the EU Charter of Fundamental Rights.

As a result of the court’s decision to declare the EU Directive 2006/24/EC as invalid, the Bulgarian regulations that transposed the directive’s provision into law breached the constitution, namely article 5, paragraph 4, which states that international treaties ratified by Bulgaria (including all EU treaties and directives) “have primacy over any conflicting provision of the domestic legislation.”

Additionally, the provisions also breached the constitutional rights of privacy and the freedom and confidentiality of correspondence and all other communications, Penchev said.

The Ombudsman echoed the conclusions drawn by the ECJ, which said that bulk telecommunications data may provide very precise information on the private lives of the persons whose data are retained.

Even though the objective of the data retention directive was one of public interest (namely the prevention, investigation, detection and prosecution of serious crime), it was “un-proportional and unjustified interference in the rights of citizens,” Penchev said at the time.

(Photo: Clive Leviev-Sawyer)

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