Thursday, October 28, 2010

Data Retention Status Quo in Slovakia

On the 4th of October, European Information Society Institute filled a complaint (in Slovak bellow) to General Prosecution of the Slovak Republic (Generálna prokuratúra SR) concerning unconstitutionality of the data retention law in Slovakia. It has now two months to scrutinize the complaint and thoroughly assess whether to file a complaint to the Constitutional Court of Slovak republic or not. Unlike Czech republic where members of parliament objected respective data retention provisions on 26th of March 2010 before the Constitutional Court of Czech republic (the case was attached with number Pl. ÚS 24/10 receiving an excellent rapporteur, Justice Eliška Wagnerová), in Slovakia there is no corresponding case pending before Constitutional Court so far. For those less familiar, data retention law is one of the worst and most privacy invading laws ever. The law, which is not that far from George Orwell´s 1984. It comes from data retention directive which unfortunately, happen to be still valid. Yet in 2006 Ireland supported by Slovakia objected legal basis of this directive. Back in 2009 the Court of Justice supported directive in terms of legal basis in the primary law (C-301/06). Since this time there have been three infringement proceedings against members states not implementing the data retention law. So far there are three important European rulings on this matter, Romanian (decision 1258), German (1 BvR 256/08 , 1 BvR 263/08 , 1 BvR 586/08, report in English) and Bulgarian one (here). Hence EISI is trying to bring the case in the attention of Slovak authorities, most ideally the Constitutional Court (direct complaint seeking invalidation of the respective provisions is not possible).

Interestingly, there is a Slovak case dealing with the storage of personal data, however not on the basis of data retention directive, but wiretapping law (PL ÚS 23/06). In addition it is not the case about privacy, but shift of the costs of wiretapping onto providers. In essence it is case similar to German case (1 BvL 7/08) and Austrian case (G 37/02 ua, V 42/02 ua), inclining to Austrian one. The Constitutional Court of Slovak republic held in this case that provisions that impose 81% of wiretapping costs onto providers are in breach of right to the peaceful enjoyment of possessions according to art. 1 of the first protocol to the European Convention on Human Rights. The court explicitly says (part IV) that this decision annuls only respective "wiretapping costs provisions" as provision concerning data retention costs have not been part of the complaint (Huťko wonders why..).

Podanie Na Generalnu Prokuraturu

PS: Is Court´s of Justice number for Irish data retention reference known to any of Huťko´s readers? He would be grateful.

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