Abstract
Until 2008, there was no legal provision on the retention of traffic and location data for law enforcement agencies in Romania. Like all other Member States of the European Union, Romania had to also transpose Directive 2006/24/EC, but the law was shortly repealed. Thus, the Romanian Constitutional Court is among the first courts in Europe that declared the national legal provisions on data retention as contrary to the Constitution. Furthermore, it may be the only court that has done so twice—first in 2009 and again in 2014. The reasoning behind those decisions is similar to that of the Court of Justice of the European Union (CJEU), in the judgment of the CJEU that invalidated Directive 2006/24/EC based on the lack of adequate safeguards for the right to privacy, confidentiality of correspondence, and freedom of expression. As a result of the decisions in 2014, the Romanian lawmaker ceased trying to enact another similar law.
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Notes
- 1.
Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC, OJ L 105, 13.4.2006.
- 2.
Official Journal of Romania, Part I, No. 780 of 21.11.2008.
- 3.
Official Journal of Romania, Part I, No. 798 of 23.11.2009.
- 4.
Official Journal of Romania, Part I, No. 406 of 18.6.2012.
- 5.
Official Journal of Romania, Part I, No. 653 of 4.9.2014.
- 6.
Judgment of the Court (Grand Chamber), 8 April 2014, Joined Cases C-293/12 and C-594/12, ECLI:EU:C:2014:238.
- 7.
Campbell and Connor (1986), p. 12.
- 8.
Decision of the German Federal Constitutional Tribunal of 15 December 1983, BVerfGE 65, 1 BvR 209.
- 9.
The full text of the current Constitution is available in English at http://www.cdep.ro/pls/dic/site.page?den=act2_2&par1=1#t1c0s0sba1.
- 10.
Article 26: (1) The public authorities shall respect and protect the intimate, family and private life. (2) Any natural person has the right to freely dispose of himself unless by this he infringes on the rights and freedoms of others, on public order or morals.
- 11.
Article 27: (1) The domicile and the residence are inviolable. No one shall enter or remain in the domicile or residence of a person without his consent. (2) An exemption from the provisions of paragraph (1) can operate, according to the law, for the following instances: (a) carrying into execution a warrant for arrest or a court decree; (b) removing a risk to someone’s life, physical integrity, or a person’s assets; (c) defending national security or public order; (d) preventing the spread of an epidemic. (3) Searches shall only be ordered by a judge and carried out under the terms and forms stipulated by the law. (4) Searches during the night shall be forbidden, except for crimes in flagrante delicto.
- 12.
Article 28: Secrecy of the letters, telegrams and other postal communications, of telephone conversations, and of any other legal means of communication is inviolable.
- 13.
Official Journal of Romania, Part I, No. 790 of 12.12.2001, no longer in force. As of the 25 May 2018, the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance) is fully applicable in Romania; OJ L 119, 4.5.2016, pp. 1–88.
- 14.
Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ L 281, 23.11.1995.
- 15.
Official Journal of Romania, Part I, No. 1101 of 25.11.2004.
- 16.
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), OJ L 201, 31.7.2002.
- 17.
Official Journal of Romania, Part I, No. 767 of 14.10.2015.
- 18.
- 19.
There are two main proceedings for declaring a law unconstitutional: by way of an objection and by way of an exception. In the first case, it is about a draft law adopted by the Parliament but not yet promulgated by the Republic’s President; in this case, the Constitutional Court may be notified by the President of Romania, one of the presidents of the two Chambers, the Government, the High Court of Cassation and Justice, the Advocate of the People, and a number of at least 50 deputies or at least 25 senators. In the second case, the Constitutional Court decides on exceptions as to the unconstitutionality of laws and Government ordinances, brought up before courts of law or commercial arbitration; the exception may also be brought up directly by the Advocate of the People (the Ombudsman).
- 20.
Law 47/1992 on the organisation and functioning of the Constitutional Court (Official Journal of Romania 101/22.05.1992), further amended and supplemented.
- 21.
Details of the case and an extract of the judgment are available in Romanian at: http://portal.just.ro/3/SitePages/Dosar.aspx?id_dosar=300000000252673&id_inst=3 and http://rolii.ro/hotarari/59a7789fe49009882e0000c6.
- 22.
Case C-144/04, Judgment of the Court (Grand Chamber) of 22 November 2005, Werner Mangold v. Rüdiger Helm, ECLI:EU:C:2005:709.
- 23.
Article 148(2): As a result of the accession, the provisions of the constituent treaties of the European Union, as well as the other mandatory community regulations shall take precedence over the opposite provisions of the national laws, in compliance with the provisions of the accession act.
- 24.
For this paper, an English version of this decision is referred to, available at http://www.legi-internet.ro/fileadmin/editor_folder/pdf/decision-constitutional-court-romania-data-retention.pdf (unofficial translation).
- 25.
Article 53: (1) The exercise of certain rights or freedoms may only be restricted by law, and only if necessary, as the case may be, for: the defence of national security, of public order, health, or morals, of the citizens’ rights and freedoms; conducting a criminal investigation; preventing the consequences of a natural calamity, disaster, or an extremely severe catastrophe. (2) Such restriction shall only be ordered if necessary in a democratic society. The measure shall be proportional to the situation having caused it, applied without discrimination, and without infringing on the existence of such right or freedom.
- 26.
In this context, the Constitutional Court cited the relevant jurisprudence of the European Court of Human Rights, such as: Klass and Others v. Germany, application No. 5029/71, judgment of 6 September 1978; Dumitru Popescu v. Romania, application No. 71525/01, judgment of 26 April 2007.
- 27.
Citations were made from the ECHR cases Rotaru (Rotaru v. Romania, application No. 28341/95, judgment of 4 May 2000) and Sunday Times (The Sunday Times v. The United Kingdom, application No. 6538/74, judgment of 26 April 1979).
- 28.
Article 20: For the prevention and counteracting the threats to national security, the state institutions with attributions in this field may have access, under the conditions established by the normative acts that regulate the activity of national security, to the retained data held by the electronic communication services and public networks providers.
- 29.
Prince Hans-Adam II of Liechtenstein v. Germany, application No. 4252798, judgment of 12 July 2001.
- 30.
For a critical analysis of this law, see Şandru (2012), pp. 468–475.
- 31.
There is no other public information concerning the judicial files where the exception was introduced.
- 32.
Official Journal of Romania, Part I, No. 775 of 24.10.2014.
- 33.
Official Journal of Romania, Part I, No. 79 of 30.1.2015.
- 34.
The former head of the Romanian Intelligence Service made a public statement after the last decision, in 2015, in which he declared the following: “I would like to warn very seriously about the responsability and the moral of the State, about the national security of Romanian citizens (…) and at the moment when a catastrophic event will happen, I shall know who to point my finger on.” See http://www.hotnews.ro/stiri-esential-19192755-george-maior-seful-sri-noi-critici-pntru-curtea-constitutionala-exista-raspundere-morala-undeva-stat-legatura-securitatea-cetatenilor-sper-nu-opune-sri-ului-curtea-constitutionala-considerat-exista-an.htm.
- 35.
This law was also challenged before the Constitutional Court, but the exception was rejected as inadmissible, the judges considering that the ordinary courts which introduced the exception ex officio had no procedural interest, since they already dismissed the requests for access to data (Decision 621/2016, Official Journal of Romania, Part I, No. 973 of 5.12.2016.
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Şandru, S. (2021). Data Retention in Romania. In: Zubik, M., Podkowik, J., Rybski, R. (eds) European Constitutional Courts towards Data Retention Laws. Law, Governance and Technology Series(), vol 45. Springer, Cham. https://doi.org/10.1007/978-3-030-57189-4_12
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