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Bulgarian Court annuls a vague article of the data retention law

17 December, 2008
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(Dieser Artikel ist auch in deutscher Sprache verfügbar)

On 11 December 2008, the Bulgarian Supreme Administrative Court (SAC) annulled article 5 of the national legislation that implements the Data retention Directive, following a lawsuit initiated by Access to Information Program(AIP).

Article 5 of the Bulgarian Regulation # 40 that was issued by the State Agency on Information Technologies and Communication and the Ministry of Interior provided for a "passive access through a computer terminal" by the Ministry of Interior, as well as access without court permission by security services and other law enforcement bodies, to all retained data by Internet and mobile communication providers.

A five-member panel of the SAC annulled the article, considering that the provision did not set any limitations with regard to the data access by a computer terminal and did not provide for any guarantees for the protection of the right to privacy stipulated by Art. 32, Para. 1 of the Bulgarian Constitution. No mechanism was established for the respect of the constitutionally granted right of protection against unlawful interference in one's private or family affairs and against encroachments on one's honour, dignity and reputation.

The court also found that the text of Art. 5 of the Regulation providing that the investigative bodies, prosecutor's office and the court shall be granted access to retained data "for the needs of the criminal process," the security services - "for the needs of the national security", does not provide limits against violations of constitutionally granted rights of the citizens. Reference to specialized laws - such as Penal Procedure Code, Special Surveillance Means Act, Personal Data Protection Act, which specify conditions under which access to personal data shall be granted, was not provided either.

Furthermore, according to the court, Art. 5 of the Regulation contradicts the provision of Art. 8 of the European Convention on Human Rights.

The court emphasises that national legal norms shall comply with the established principle and shall introduce comprehensible and well formulated grounds for both access to the personal data of citizens and the procedures for their retention. Article 5 of the Regulation lacks clarity in terms of protection of the right to private and family life which contradicts the provision of Art. 8 of the ECHR, the texts of the Directive 2006/24/EC, and Art. 32 and 34 of the Bulgarian Constitution.

The decision or this court comes after an initial rejection of the demand by a first court panel on 17 July 2008. This is final and can't be appealled to higher competent courts of justice.

The Bulgarian Supreme Administrative Court (SAC) repealed a provision of the Data Retention in the Internet Regulation (11.12.2008)
http://www.aip-bg.org/documents/data_retention_campaign_11122008eng.ht...

Data Retention on the Internet - Legal Action by Access to Information Programme in Bulgaria - 2008
http://www.aip-bg.org/documents/data_retention_campaign_eng.htm

Supreme Administrative Court issues a good decision for the Bulgarian Internet (11.12.2008)
http://blog.veni.com/?p=990

(Thanks to Veni Markovski - EDRi-member ISOC Bulgaria)

 

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