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Czech data retention judgement in English language (31 Mar 2011) Print E-mail

Today the Czech Constitutional Court annulled the Czech data retention law for violating human rights. We are publishing an extract in English.

55. Taking the form of an obiter dictum only, the Constitutional Court maintains that it is aware of the fact that owing to the development of modern information technologies and communication means, new and more sophisticated ways of commitment of crime occur, which need to be addressed accordingly. Nonetheless, the Constitutional Court expresses its doubts whether the very instrument of global and preventive retention of location and traffic data on almost all electronic communications may be deemed necessary and adequate from the perspective of the intensity of the intervention to the private sphere of an indefinite number of participants to electronic communications. Within the European context, such opinion is not at all rare, since the Data Retention Directive has faced substantial criticism since its coming into force, both from the Member States (e.g. the governments of Ireland, the Netherlands, Austria or Sweden have been hesitating to implement it or have not implemented it yet, whereas the latter two have done so despite a publicly announced warning of the Commission to initiate proceedings with the European Court of Justice), and from legislators in the European Parliament, the European Data Protection Supervisor (see the data retention conference conclusions held by the Commission in Brussels on 3 December 2010, available on, or the Data Protection Working Group established in accordance with Article 29 of Directive 95/46/EC (cf. its statements available on, as well as from non-governmental organisations (such as Statewatch, European Digital Rights or Arbeitskreis Vorratsdatenspeicherung - AK Vorrat). All the bodies mentioned above have sought to put the location and traffic data with more adequate instruments (e.g. so-called data freezing allowing the monitoring and retention of necessary and certain data relating to the specific participant to communication selected in advance, provided certain conditions are met), or they have sought its amendments, mainly in the form of providing the individuals affected with sufficient guarantees and means of protection, as well as applying more restrictions on retained data security against threats of third-party leaks and misuse.

56. Similarly, the Constitutional Court expressed its doubts when also examining whether the instrument of global and preventive retention of traffic and location data may be deemed, from the perspective of the original purpose (i.e. protection against security threats and prevention of serious crime) as an effective tool, mainly due to the existence of so-called anonymous SIM cards, which are beyond the extent of retained location and traffic data as anticipated within the contested legislation and which, according to reports of the Police of the Czech Republic, are used for the purposes of commitment of criminal offences up to a level of 70% (cf. “Czech Police in bid to ban anonymous SIMs, operators protest”,, 18 March 2010). In this respect, it is possible to refer to the analysis of the Federal Investigation Bureau of Germany, dated 26 January 2011, which - on the basis of comparing data before and after adopting the legal regulation in question - concluded that using the instrument of global and preventive retention of location and traffic data produced only negligible effect in reducing the number of serious crimes or the level of their detection (the analysis and the specific statistic data are available on,de/). Similar conclusions may also be drawn when glancing at the statistic summaries of crimes committed in the territory of the Czech Republic, e.g. the comparison of statistic data in the period of 2008 - 2010 (available on

57. Last but not least, the Constitutional Court would like to express its doubts whether it is at all desirable that private persons (service providers in the area of the Internet, telephone and mobile communication, i.e. in particular, mobile operators and commercial enterprises providing Internet access) should be entitled to retain all data on the communication provided by them, as well as on customers to whom services are provided (i.e. data going beyond the extent of data which they are obliged to retain in accordance with the contested legislation), or that they should be allowed to dispose of them freely for the purposes of collecting debts or developing their business or marketing activities. The Constitutional Court perceives such a situation as undesirable mainly due to the fact that the Electronic Communications Act or any other legal regulations do not specify or define this competence and its purpose in further detail; the rights and duties have not been defined in a sufficient and precise manner, as well as the extent of retained data, the length and manner of retention, and the requirements concerning the data security or review mechanisms have not been specified in further detail, either.

58. With respect to the above, the Constitutional Court held, in accordance with Section 70 para. 1 of the Constitutional Court Act that the contested provisions of Section 97, para. 3 and 4 of Act No. 127/2005 Coll., on Electronic Communications and on Amendments to Certain Related Acts (Electronic Communications Act), as amended, and the contested Decree No. 485/2005 Coll., on the extent of traffic and location data, time of its storage and the form and method of its disclosure to the bodies authorised to use it, should be abolished on the day of publishing the Judgment hereof in the Collection of Laws (Section 58, para 1. of the Constitutional Court Act).

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