Bulgaria Ombudsman asks Constitutional Court to scrap data retention provisions

Bulgaria’s Ombudsman Konstantin Penchev said on April 15 that he has asked the country’s Constitutional Court to scrap the provisions in the Electronic Communications Act that mandate the bulk collection of telecommunications data.

The formal challenge from Penchev comes 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.

The Constitutional Court will have to decide whether Penchev’s challenge is admissible and, if so, will open a new case, giving all interested stakeholders the opportunity to present their opinions before issuing a ruling. Such proceedings usually take several months, with the length of deliberations often depending on the amount of outside opinions presented to the court.

(Photo: Clive Leviev-Sawyer) 



The Sofia Globe staff

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