The decision of the Romanian Constitutional Court (CCR) against the data retention law was finally published in the Official Monitor on 23 November 2009.
The motivation of the court, which was made public only with a few days before its publication in the Official Monitor, shows an interesting argument from a Court with no prior jurisprudence in the field of privacy protection. Thus, the court not only criticizes several aspects of the text of the law, but declares the whole law as unconstitutional because it breaches the right to corespondence and to privacy.
Even though only several articles were mentioned in the motion of unconstitutionality, the Court went further and examined art 20 of the law that could have been interpreted as an open door for the secret services to access the retain data under any circumstances and without a judicial approval, an issue that was raised by EDRi-member APTI starting with the public consultations in 2007.
CCR notes that the principle of limited collection of personal data is emptied through this new regulation that obliges a continuos retention of traffic data for 6 month."The legal obligation that foresees the continuous retention of personal data transforms though the exception from the principle of effective protection of privacy right and freedom of expression, into an absolute rule. The right appears as being regulated in a negative manner, its positive role losing its prevailing character."
CCR also makes a comparison with article 91^1 of the Penal Procedure Court (CPP) dealing with audio and video interceptions in crime cases, that was considered constitutional in an earlier ruling. The text of the CPP allows the video interception only in a specific case and person, only with judicial supervision, only for the future and for a period that may not exceed 120 days under any circumstances . The Court concludes that basically, this data retention law deletes the right to privacy in terms of electronic communications: "Therefore, the regulation of a positive obligation that foresees the continuous limitation of the privacy right and secrecy of correspondence makes the essence of the right disappear by removing the safeguards regarding its execution."
The court is underlining the fact, already pointed out by European civil organizations even during the adoption of the data retention directive, that the law considers all citizens as potential criminals: "This (data retention) equally addresses all the law subjects, regardless of whether they have committed penal crimes or not or whether they are the subject of a penal investigation or not, which is likely to overturn the presumption of innocence and to transform a priori all users of electronic communication services or public communication networks into people susceptible of committing terrorism crimes or other serious crimes."
Finally, the court quotes the ECHR case of Klass and others vs Germany (1978) considering that "taking surveillance measures without adequate and sufficient safeguards can lead to 'destroying democracy on the ground of defending it .'"
According to art 147 of the Romanian Constitution, the legal provisions on data retention are now suspended. The Government and Parliament have 45 days to "fix" the unconstitutional provisions. But taking into consideration the CCR reasoning, there are little chances that any text that would ask for a six month blanket data retention would be considered as constitutional in Romania. Moreover, there is currently only an interim government and a new one is unlikely to appear in the next weeks (at least not until the second round of presidential election, which is scheduled for 6 December).
Constitutional Court Decision no 1258 of 8 October 2009 (unofficial English translation, 23.11.2009)
Constitutional Court Decision no 1258 of 8 October 2009 (only in Romanian, 23.11.2009)
APTI's comments on draft data retention law (only in Romanian, 9.05.2007)
Romania: Data retention law declared unconstitutional (21.10.2009)
Art 147 of the Romanian Constitution