The Constitutional Court found No. 43 / 2012 Coll.

Paragraph 88a of Act No. 141 / 1961 Coll., on Criminal Procedure of the Court (Criminal Code), as amended, is hereby repealed with effect from 30 September 2012.

1. On 27 May 2011, the Constitutional Court received a request from the District Court for Prague 6 (hereinafter "the appellant '), accompanied by a letter dated 1 July 2011, to repeal Article 88a of Act No. 141 / 1961 Coll., on Criminal Procedure of the Court (the Code of Criminal Procedure), as amended (hereinafter" the contested provision').

(2) The appellant, before which proceedings are pending on a proposal from the Military Police to issue an order for communication of information on the telecommunications operation carried out under Paragraph 88a of the Penal Code, considers that he cannot decide on such a proposal because of a breach of that provision with the constitutional order. In this context, it refers to the legal conclusions contained in the Constitutional Court's finding of 22 March 2011, sp. zn. It considers that this provision does not comply with the fundamental right to protect the secrets of messages submitted by telephone, telegraph or other similar devices within the meaning of Article 13 of the Charter of Fundamental Rights (hereinafter referred to as the Charter), since, in the case of a regulation, the communication of telecommunications traffic data in order to clarify the facts relevant to criminal proceedings, it does not contain sufficient guarantees of the rights of users of electronic communications services, which would be comparable to those envisaged in the case of the regulation of wiretaping and recording of telecommunications traffic by the provisions of Section 88 of the Criminal Code. In the case of both institutes, the procedural procedure is fundamentally dissociated, without it being clear for what reason the legislator has consistently followed the procedure laid down in Paragraph 88 of the Code of Criminal Procedure, whereas the procedural procedure under the contested provision has taken a significant benevolence. In doing so, it is known from official activity that this benevolence causes inflation in the proposals for the procedure in question, in particular by the Police of the Czech Republic, the Customs Directorate, the Military Police, which makes it difficult for the Court to act as a guarantor and guardian of the rights of persons guaranteed by constitutional order in criminal proceedings.

3. Within the meaning of Article 42 (4) and Article 69 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court), the Constitutional Court sent the application in question to the parties for annulment of the contested provision.

4. In its observations of 29 July 2011, signed by its President Milan Štěm, the Senate briefly summarised the course of the legislative process. The contested provision became part of the Code of Criminal Procedure on the basis of its amendment by Act No. 265 / 2001 Coll., amending Act No. 141 / 1961 Coll., on Criminal Procedure (Criminal Code), as amended, Act No. 140 / 1961 Coll., the Criminal Act, as amended, and some other laws which were the subject of significant reform of criminal proceedings. The Senate debate of the amendment did not affect this provision, but it was noted that it was added to the government bill on the basis of one of the two amendments by various committees. However, despite the fact that the government supported one of them with the argument about the constitutional suitability, the Chamber of Deputies preferred the other, as a condition of the regulation of the communication of data on telecommunications traffic, which did not specify the gravity of the criminal offence for which criminal proceedings are being conducted. Finally, the Senate stated that at the time of the adoption of the contested provision, Paragraph 88a of the Penal Code referred to a somewhat more uniform range of operational and localisation data used, which was still defined by Act No 151 / 2000 Coll., on Telecommunications and on the amendment of other laws.

5. The Chamber of Deputies of 1 August 2011, signed by its President Miroslava Nemcová, also briefly summarised the course of the legislative process, adding that, in response to the finding of the Sp. Pl. ÚS 24 / 10, the Ministry of the Interior, in cooperation with the Ministry of Justice and the Ministry of Industry and Trade, is preparing a draft amendment to the Act on Electronic Communications and the Criminal Code. It can therefore be assumed that the relevant government proposal will be discussed by the Chamber of Deputies in the autumn of this year.

6. All parties to the proceedings have given their assent to the abandonment of oral proceedings. As the Constitutional Court did not expect further clarification of the case from this hearing, it waived it under Paragraph 44 (2) of the Constitutional Court Act.

7. The subject of an assessment of compliance with the constitutional order is the provision of Section 88a of the Code of Criminal Procedure, which reads as follows:

"(1) If, in order to clarify the facts relevant to criminal proceedings, it is necessary to establish the data relating to telecommunications operations carried out which are the subject of telecommunications secrecy or which are covered by the protection of personal and intermediate data, the President of the Chamber and, in the preparatory proceedings, the Judge shall inform him or her of the legal or natural persons carrying out the telecommunications activity and of the latter, either to the prosecutor or to the police authority. An order for the detection of telecommunications data shall be issued in writing and justified.

(2) The order referred to in paragraph 1 shall not be required if the communication equipment user to whom the telecommunications traffic data is to be related has given his consent. ';

8. Pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') and Article 64 (3) of the Law on the Constitutional Court, the court is entitled to file an application for annulment of the law or its individual provisions to be applied in the context of its decision-making activities if it concludes that they are contrary to the constitutional order.

9. The District Court for Prague 6 has filed a motion for the annulment of § 88a of the Code of Criminal Procedure in connection with the decision on the request of the Military Police to issue an order for the communication of data on the telecom operation carried out in respect of a reasonable suspicion of a criminal offence, classified information pursuant to § 317 (1) of Act No. 40 / 2009 Coll., Criminal Code. The procedure for this application shall be conducted before the appellant under point 37 NT 2309 / 2011. Since the contested provision provides for the power of the President of the Chamber, or in the preparatory proceedings of the Judge, as well as the conditions on the basis of which the order for communication of the information may be issued, it is clear that it is to be applied in the case in question. At the same time, this court's active legitimacy is given to file a motion for its annulment.

10. In proceedings for the annulment of laws or other legislation, the Constitutional Court, pursuant to Article 68 (2) of the Law on the Constitutional Court, assesses whether a law or other law has been adopted and issued within the limits of the Constitution, whether it has been adopted in a constitutionally prescribed manner and whether its content is in accordance with constitutional law and, in the case of other legislation, with the law.

11. As already mentioned in the Senate's observations, the contested provision was added to the Code of Criminal Procedure by Act No. 265 / 2001 Coll., after the Law became applicable, and was not subject to any further amendments or additions. Whereas, in the present case, it is beyond doubt that Parliament of the Czech Republic had, within the meaning of Article 15 (1): The Constitution's competence to adopt this law has been assessed by the Constitutional Court as to whether its adoption took place in a constitutionally prescribed manner. It was based on the observations of the parties as well as on the shorthand reports of the Chamber of Deputies and the Senate and other publicly available documents relating to the legislative process.

12. The contested provision became part of a government bill sent to Members as House Press No. 785 / 0 (Chamber of Deputies, 3rd Election, 1998- 2002) on the basis of an amendment to the Defence and Security Committee. The draft law, as amended by this amendment, was approved by the Chamber of Deputies at its third reading on 25 May 2001 at its 36th session, with 169 of the 174 Members voting for it, none of them opposed, and five abstentions. The Senate discussed and approved a bill sent to the Senators as Senate Press No. 66 / 1 (Senate, 3rd term, 2000- 2002) at its 8th meeting on 29 June 2001. Of the 60 senators present, 58 voted in favour, two abstained. The Act was served on 2 July 2001 to the President of the Republic, who signed it on 11 July 2001. On 31 July 2001 the Act was published in the Collection of Laws of 102 under the number 265 / 2001 Coll., with effect from 1 January 2002.

13. Those findings were considered sufficient by the Constitutional Court to conclude that the contested provision was added to the Code of Criminal Procedure by a law adopted in a constitutional manner. It also took into account that the appellant did not in any way question the constitutionality of the adoption and publication of this law in its proposal. For this reason, it has made a substantive assessment of the contested provision.

14. At the outset of its own assessment, it should be pointed out that the Constitutional Court has already partially expressed its views on the compliance of the contested provision with the constitutional order in its finding, on the basis of section Pl. Those provisions laid down the obligation for natural and legal persons providing a public communications network or providing a publicly available electronic communications service to retain, for a certain period of time, established and processed operational and localisation data. Although the contested provision was not the subject of proceedings in the case at hand, the Constitutional Court could not, however, overlook its substantive link to the legislation at issue at the time, since it was determined by it, albeit not exclusively, the purpose of the obligation in question and the conditions under which these data could be used. From this point of view, all of the provisions in question thus provided for a comprehensive regulation on the retention of the data in question for the purposes of criminal proceedings, which is why the Constitutional Court had to consider it as a whole in its assessment.

15. The legal conclusions contained in that finding may also be drawn in the present case, not only in the light of the definition of general grounds for examining the contested provision but also its own assessment. In line with the appellant, the Constitutional Court considers Article 13 of the Charter to be relevant to the review of the contested provision, since, as it finds in its established case-law, the protection provided by the secrets of the reports submitted by the telephone, telegraph or other similar devices does not only concern their own content, but also other data registered in the registration of telecommunications traffic in relation to specific persons [cf. ÚS 536 / 2000 (N 29 / 21 SbNU 251); the finding of 27 August 2001 SbNU 78 / 01 (N 123 / 23 SbNU 197); the finding of 13 September 2006 sp. However, from the point of view of the system of fundamental rights guaranteed by constitutional order, it is necessary to assess the contested provision in a broader context, namely in the light of the right of users of electronic communications services to respect for private life, the guarantee of which can be imported from Articles 7 (1), 10, 12 and 13 of the Charter, as well as from Article 8 of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention '). The fact that the Charter defines this fundamental right in several places does not mean that it should not be seen as a whole in the interpretation. Given the close interdependence of the requirements for respect for and protection of privacy with the development of technical and technological possibilities, which increase freedom threatening the potential of the State, it is also necessary to respect the purpose of the generally understood and dynamically evolving right to privacy as such and to consider it in its period integrity (cf.

16. The latter found that "the primary function of the right to respect for private life is to provide space for the development and self-evaluation of individual personality. In addition to the traditional definition of privacy in its spatial dimension (protection of dwellings in the wider sense of the word) and in the context of autonomous existence and public power, the creation of social relations (in marriage, family, society), the right to respect for private life includes a guarantee of self-determination in the sense of the fundamental decision-making of the individual himself. In other words, the right to privacy also guarantees the right of an individual to decide at his or her discretion whether, or to what extent, the facts and information of his or her personal privacy are to be made available to other bodies. '(paragraph 29). That aspect of that right finds its express expression in Article 10 (3) of the Charter, according to which everyone has the right to protection against unauthorised collection, disclosure or other misuse of data on his or her person. In this way, a defined fundamental right, which, in conjunction with Article 13 of the Charter, can be referred to briefly as the right to information self-determination [to this concept, see the finding of 17 July 2007 sp. zn. IV. ÚS 23 / 05 (N 111 / 46 CollNU 41), paragraphs 34 and 35; the finding of 1 December 2008 sp. zn. I. ÚS 705 / 06 (N 207 / 51 CollNU 577), paragraph 27; the finding of sp. (Pl. ÚS 24 / 10, paragraphs 29 to 35), together with the freedom of personal, freedom in the spatial dimension (home), the freedom of communication and other constitutionally guaranteed fundamental rights of the individual, whose individual integrity is, as a fully necessary, and the development of human life, must be respected and consistently (paragraph 31). If individuals are not guaranteed the possibility to monitor and control the content and extent of the personal data and information provided by them to be published, stored or used for purposes other than the original, and thus he will not be able to recognise and evaluate the credibility of his potential communication partner and, where appropriate, to adapt his actions, there is necessarily a limitation to the suppression of his rights and freedoms which is not acceptable in a free and democratic society (cf. also the decision of the German Federal Constitutional Court of 15 December 1983, BVerfGE 65, 1 - Volkszählungsurteil, paragraph 154).

17. That concept of the right to information self-determination is also compatible with the conclusions of the European Court of Human Rights, which provided its protection from the right to respect for private and family life under Article 8 of the Convention. That court pointed out in a number of its decisions that the collection and retention of personal data falls within the scope of that article, since the term "private life 'must not be interpreted strictly. In so doing, he identified as interference in the privacy of individuals, inter alia, interference in the form of data checks, mail content, telephone calls (e.g. decision of 6 September 1978 in the case of complaint No 5029 / 71 - Klass and others against Germany, paragraph 41; decision of 2 August 1984 in the case of complaint No 8691 / 79 - Malone against the United Kingdom, paragraph 64; decision of 24 April 1990 in the case of complaint No 11801 / 85 - Kruslin against France, paragraph 26; decision of 25 March 1998 in the case No 23224 / 94 - Kopp against Switzerland, paragraph 50) or determination of data on telephone connections (e.g. decision of 25 September 2001 in the case No 44787 / 98 - P. G. and J. H. against the United Kingdom, paragraph 42; decision of 16 February 2000 in Case No 27798 - Ann v Switzerland).

18. The Constitutional Court recalls that those general bases on the right to respect for private life in the form of the right to information self-determination, including the relevant case-law of the European Court of Human Rights or of foreign courts, set out in detail in points 26 to 35 of the finding of sp. zn.

19. The contested provision empowers law enforcement authorities to obtain from electronic communications service operators, which are otherwise the subject of telecommunications secrecy or the protection of personal and intermediary data, in order to clarify the facts relevant to criminal proceedings. It is clear that the access of public authorities to these data without the consent of users of these services, given the possibility to derive information on the location, time, participants and the way in which they communicate, directly and materially affects their right to information self-determination, by depriving them of the possibility to decide whether to make such information available to other persons. While this does not preclude the admissibility of such intervention, the conditions arising from the constitutional order must be fulfilled. It is particularly important that the restriction in question is established on the basis of the law and that its legislation meets the requirement of certainty arising from the principle of the rule of law, namely to be precise and clear in its wording and at the same time predictable in order to provide the potentially affected individuals with sufficient information on the conditions under which the limitation of their fundamental right may take place (cf. sp. zl. ÚS 24 / 10, paragraph 37; for example, Malone's decision against the United Kingdom, paragraph 67; decision of 4 May 2000 in Case No 28341 / 95 - Rotor v Romania, paragraphs 55 to 57). At the same time, restrictions on the right to information self-determination must monitor the constitutionally and discussed purpose of protecting another fundamental right or a public good, while assessing the conflict between these values must take into account the imperative of minimising interference in fundamental rights and freedoms, taking into account their substance and meaning. Thus, the intervention in this fundamental law must be sustained from the point of view of proportionality, the assessment of which (in the wider sense) consists of three steps, according to the settled case law of the Constitutional Court. In the first step, the eligibility of a specific measure to fulfil its purpose (or its suitability) is assessed, which means whether it is in any way capable of achieving the legitimate objective pursued, which is to protect another fundamental right or public good. Furthermore, it is examined whether the most respectful of the basic law was used in the selection of funds. Finally, in the third and final steps, its proportionality is assessed in a narrower sense, i.e. whether the damage to fundamental law is disproportionate in relation to the intended objective. This means that measures limiting fundamental human rights and freedoms must not exceed, if they are related to a collision of fundamental rights or freedoms with public interest, their negative consequences, the positives which constitute a public interest in those measures [cf., for example, the finding of 12 October 1994 sp. zn. Pl. ÚS 4 / 94 (N 46 / 2 SbNU 57, 214 / 1994 Coll.); the finding of 13 August 2002 sp. zn. Pl. Pl. Pl. ÚS 3 / 02 (N 105 / 27 SbNU 177, 405 / 2002 Coll.); the finding of 28 January 2004 sp.

20. The prosecution of, or the prevention, detection and investigation of, offences, as well as the fair punishment of their perpetrators, can undoubtedly be described as a constitutionally challenged public interest, or a purpose which generally justifies the intervention in that law [cf., the finding of 23 May 2007 sp. zn. II. ÚS 615 / 06 (N 88 / 45 CollNU 291), in particular point 16; the finding of sp. zn. II. ÚS 789 / 06, paragraphs 15 to 22; the finding of 29 February 2008 sp. Its purpose is to penalise the most serious violations of fundamental rights and freedoms, or cases of damage to the constitutional order or legal protected public goods by the State, thereby providing legal protection in the wider sense. The public interest in question will also stand up as a purpose addressed by Article 8 (2) of the Convention, which allows, if necessary in a democratic society, to intervene in the right to respect for private life in order to protect the rights and freedoms of others, national and public security, the country's economic well-being, the prevention of unrest and crime or the protection of health and morale. It also envisages harmonising the obligations of electronic communications service providers to store certain data and to ensure their availability under 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 public communications networks and amending Directive 2002 / 58 / EC ("the Data Retention Directive '). As is apparent from Article 1 (1) of the Directive, the purpose of retention of certain data by the provider of the services in question under this Directive is to ensure the availability of such data for the purposes of investigating, detecting and prosecuting serious offences, as defined by each Member State in its national legislation.

21. In the light of the above criteria, it is not disputed that any interference with the fundamental right to information self-determination as a result of the regulation of the communication of data on the telecommunications operation of a person has a legal basis in the contested provision. It can also be concluded without further ado that such a measure is capable of achieving the objective pursued and thus will be able to withstand the first step of the proportionality test. The Constitutional Court has therefore taken his second step in assessing his need.

22. The Constitutional Court considers, in the present case, the contested provision in the specific control of constitutionality, that is to say, on a proposal from the Court, which primarily pursues it, that the proceedings before it or its decision do not infringe the constitutional order. However, its assessment cannot be limited to the question whether, in view of the circumstances of the case and the gravity of the offence, the criminal offence to which the law enforcement authorities have a reasonable suspicion allows, in a particular case, the communication of data on the telecommunications operation carried out to be ordered to respect the limitations arising from the principle of proportionality. The appellant would undoubtedly be entitled to such an assessment even without the decision of the Constitutional Court, since the contested provision does not require it to issue the order in question. Therefore, if it came to the conclusion that it was disproportionate in terms of the right to information self-determination, it would not be prevented from complying with the request of the law enforcement authority.

23. However, the contested provision has a wider scope in the abstract, as it constitutes a complete regulation for the detection of data on telecommunications traffic in criminal proceedings and thus defines not only what is the subject of the applicable legislation but also that something is not the subject of it. The proposed deficiencies are capable of being reflected negatively in the fundamental rights and freedoms of users of electronic communications services, as they may be affected by them not only by the communication of the data in question to law enforcement authorities but also by their other disposition with them, for example by making them available to others or by using them for other purposes. The question is, therefore, whether the contested provision provides, in the light of the fundamental right to information self-determination, sufficient guarantees against the misuse of the data in question throughout the entire duration of the criminal proceedings. Such guarantees should be understood both to determine the conditions under which the competent authorities are to have access to the data relating to telecommunications operations carried out and to ensure that they are effectively monitored. In this context, the Constitutional Court has already stated in the past that "if the criminal law allows the pursuit of public interest in the prosecution of crime by means of robust instruments, the use of which results in a serious restriction of the individual's personal integrity and fundamental rights and freedoms, constitutional limits must be respected when applying them. Thus, the limitation of the personal integrity and privacy of persons (i.e. the breach of respect for them) can only exceptionally occur on the part of the public authority if this is acceptable from the point of view of the legal existence and compliance with effective and specific safeguards against the libel." [cf. sp. zn. Pl. ÚS 24 / 10, paragraph 36; also the finding of 7 November 2006 sp. zn. I. ÚS 631 / 05 (N 205 / 43 SbNU 289), paragraph 26. The need to have such safeguards becomes more urgent for individuals at this time, when thousands, even millions of data, data and information, which also interfere in the private sphere of each individual, although he knowingly did not want anyone to enter it (cf. sp. zn. Pl. ÚS 24 / 10, paragraph 50), are recorded, collected and made available by each individual every minute.

24. It follows from the classification of the contested provision that the Regulation explicitly makes the communication of information on the telecommunications operation carried out conditional only on such a measure having to pursue the purpose of "clarifying the facts relevant to criminal proceedings'. The Constitutional Court considers that, in this way, the adjusted limits of the fundamental right to information self-determination are formulated in a very broad and uncertain manner and in essence allow the data concerned to be requested and used by law enforcement authorities whenever it is possible to give them any connection to ongoing criminal proceedings. It is aware of the obligation of public authorities to apply sub-constitutional legislation in accordance with constitutional rules, which in the present case also implies their duty to examine in any particular case whether the determination of data on the telecommunications operation of a person is not, because of the gravity of the offence, the possibility of achieving the purpose of criminal proceedings otherwise or for other reasons disproportionate to its fundamental right. It also considers it important that the protection of fundamental rights and freedoms is subject, on a case-by-case basis, to scrutiny by an independent and impartial court, since the decision to issue the order in question confers the contested provision on the President of the Chamber, or in preparatory proceedings, of a Judge, which must be given in writing and justified. However, these are guarantees which, while allowing protection against undue interference with the right to information self-determination in the light of the facts of a particular case, cannot eliminate the insecurity and excessive generality of the contested legislation by replacing, on a general basis, the legislator's consideration of the intensity of a certain public interest in limiting the fundamental right or freedom in the case of individual offences and the manner in which (i.e. in a specific form) that restriction, including the abovementioned subsequent guarantees, with the relevant information, which is within the limits laid down by the constitutional order of a political decision, with its own detailed abstract reasoning. Nor would Article 4 (2) of the Charter, according to which the limits of fundamental rights and freedoms can be established only by law, since only the legislator is constitutionally legitimate to grant, on the basis of his discretion, the principle of proportionality by imposing a certain obligation of priority on the constitutional order and the public interest to the fundamental right in a type-defined legal relationship. Moreover, leaving the determination of constitutionally consistent limits only to the decision-making practice of the courts would not be compatible with the requirement of legal certainty, since any interference with the fundamental right to information self-determination is not foreseeable to the extent that the current legislation is uncertain to the extent that it corresponds to the seriousness of any negative consequences for its privacy. It can therefore be concluded that this uncertainty is the main lack of the legislation under appeal with regard to its constitutional review.

25. Where the legislator has provided as the sole condition for the determination of the data on telecommunications traffic carried out that it must lead to clarification of the facts relevant to criminal proceedings, it has thus established a basis for limiting the fundamental right to information self-determination to an extent which completely ignores the requirement for such intervention to be necessary in the light of the objective pursued by it (cf. Cf. Cf. Cf. Cf. CUS 789 / 06, paragraph 16). The authorisation of law enforcement authorities to identify with whom and how often a person communicates and from which place and by what means he does so cannot be regarded as a normal or routine means of preventing and detecting crime, given the intensity with which he interferes with that fundamental law, but can only be used if there is no other way and in relation to that fundamental law more generally. In fact, the possibility of getting to know information about a person's communication and movement without his or her consent means limiting his or her right to have information about his or her privacy, regardless of whether or not they are relevant to criminal proceedings.

26. The Constitutional Court points out that the risk of overuse (and abuse thereof) of this measure as a normal or routine means is not only based on an abstract level, but is also indicative of relevant statistical data. As already stated in his finding in sp. zn. Pl. ÚS 24 / 10 (paragraph 49), according to the report on the situation in the field of internal security and public order in the Czech Republic in 2008, drawn up by the Ministry of Interior, a total of 343 799 offences were detected in the Czech Republic in that year, of which 127 906 offences were clarified. In the same period, the number of requests for the provision of data on telecommunications, respectively traffic and location data was number 131 560 [cf. the Commission report to the Council and the European Parliament of 18 April 2011 entitled "Evaluation report on the Data Storage Directive (Directive 2006 / 24 / EU) ', accessible to the euro. europa.eu.int, CELEX: 52011DC0225; the official data concerned were requested by the European Commission from the Czech Party]. According to a similar report prepared by the Ministry of the Interior for 2009, a total of 332 829 offences were detected in that year, explained by 127 604. However, according to the European Commission report, the number of requests for data was up to 280 271, i.e. more than twice the number of the previous year. These data suggest that the instrument in the form of request and use of stored data (including data on calls not made, to which the contested provision does not remember at all) is used to a significant extent by law enforcement authorities, including for the purpose of investigations into ordinary, i.e. minor, criminal activities.

27. In addition to the requirement of necessity in a democratic society, the contested legislation should include the handling of such data by law enforcement authorities. It should include clear and detailed rules containing minimum security requirements for stored data to ensure that they are not used for purposes other than the statutory ones. In particular, it is about preventing third parties' access and laying down procedures for the protection of their integrity and confidentiality, as well as procedures for their destruction (Sp. zl. ÚS 24 / 10, paragraph 50). Effective protection against unlawful interference with the fundamental rights and freedoms of the persons concerned should be guaranteed through the obligation to provide additional information to the user of electronic communications services, if known, on the communication to the law enforcement authorities concerning operational and localisation data. At the same time, that person should have the legal means to obtain judicial review of their procedure for obtaining and handling the data in question. An exemption from this obligation could only be granted for legally determined reasons where it outweighs the interest in maintaining the confidentiality of this information. In these cases, however, the legislature must guarantee that the assessment of the competent authorities whether the reasons for the disclosure are not arbitrary but is subject to compulsory judicial control (see also similar conclusions contained in the decision of the German Federal Constitutional Court of 2 March 2010 sp. zn. 1 BvR 256 / 08, 1 BvR 263 / 08, 1 BvR 586 / 08, in particular paragraphs 281 and 282). In this context, the Constitutional Court adds that it does not see the reason for which the scope of the legal guarantees in relation to the regulation of the communication of information on the telecommunications operation carried out should be different from that of its content, unless such a distinction is made from the nature of the case, from the guarantees provided for in relation to the regulation of the wiretap and recording of telecommunications traffic, regardless of the current legislation, since in both cases the intensity of interference in the right to privacy is comparable.

28. Last but not least, the legislator should consider the effectiveness of laying down more detailed rules on the content of the injunction for the communication of data on the telecommunications operation carried out and, where appropriate, laying down certain formalities for the application itself by law enforcement authorities of such a measure. In view of the annual number of requests for regulations for the communication of the data in question, which even exceeded a quarter of a million in 2009, it would undoubtedly be illusory to assume that in practice these requests are not limited only to the communication of the most necessary data and a brief justification. For this reason, it can be imagined that these necessary content elements should be defined directly at the level of the law. Their purpose would be to ensure that when deciding, the judge will have all the necessary information available to law enforcement authorities with no greater difficulty, such as information about the user or user address or device owner, if such data can be obtained from the relevant electronic communications service operator without compromising the purpose of the criminal proceedings. It should be added that, as of today, some of the content of the order is the subject of a generally accepted interpretation of the contested provision (cf. Šámal, P. et al. The Code of Criminal Procedure. Comment. Episode I. Issue 6. Prague: C. H. Beck, 2008, p. 748), and their non-respect may lead, regardless of their absence of legal regulation, to a breach of the fundamental right of the individuals concerned to information self-determination. In this context, the Constitutional Court underlines the requirement of consistency and effectiveness of judicial control, in particular in view of the nature of the procedure in question, which does not foresee the participation of the counterparty before the court's decision. The role of the court is thus also to "balance 'the procedural situation, and it is not acceptable for the court to be a mere" helper' of the public action, since it must always be impartial (page II of the ÚS 789 / 06, paragraph 17).

29. The facts set out above justify the conclusion that the contested provision will not stand in the second step of the proportionality test, since the detection of data on telecommunications traffic carried out by law enforcement authorities does not make it necessary and does not provide for effective means of control to be applied in order to effectively protect the fundamental right of information users concerned throughout the period when those authorities have the relevant data. For the sake of completeness, however, it should be noted that it would not have passed in its third and final step, which is the essence of the assessment of proportionality in the narrower sense. The contested provision attaches no importance to the nature and gravity of the offence for which the criminal prosecution is being prosecuted, despite the fact that these facts are already of general importance to the outcome of the conflict of fundamental right to information self-determination and public interest in preventing and penalising criminal offences. In other words, this public interest cannot be given priority in the collision at any time, even if the abovementioned conditions are met. On the contrary, it is always necessary to consider whether, given the importance of the object of a particular crime to be committed, the interest in prosecuting it outweighs the right of the individual to decide for himself whether and to whom to access his personal data. It is up to the legislator to determine in the case of which offences the public interest prevails, taking into account the seriousness of the offences in its decision, similar to, for example, the setting of criminal rates. It remains to be added that the same principles are based on the limitation of the possibility of issuing a wiretap order and the recording of telecommunications traffic pursuant to Paragraph 88 (1) of the Criminal Code only on criminal proceedings for a particularly serious crime or for any other intentional offence which the declared international treaty obliges to prosecute, even if the legislator could have defined that list of offences in another way. Similarly, the data retention regulation under the Data Retention Directive provides that its aim is to ensure the availability of such data for the purposes of investigating, detecting and prosecuting serious offences, which must be stressed that, in this finding, the requirements in relation to the legislator do not in any way prevent adequate transposition of the Directive, but are in full compliance with its purpose.

30. It can be summarised that, although Section 88a of the Code of Criminal Procedure contains a complete regulation of the access of law enforcement authorities to data on telecommunications traffic, it expressly makes that approach conditional only on the fact that the data in question allows it to be established exclusively to clarify the facts relevant to criminal proceedings. The assessment of compliance with this condition confers on the President of the Chamber, or in the preparatory proceedings, on the Judge who decides on the regulation of the communication of these data, its very general and uncertain definition in the absence of any further modification of the subsequent disposition of such data, but, in view of the fact that the communication of the data in question constitutes an interference with their fundamental right of privacy in the form of an information self-determination right within the meaning of Articles 10 (3) and 13 of the Charter and Article 8 of the Convention, it cannot be considered sufficient. In particular, the legislature did not in any way reflect the requirement for proportionality to intervene in the fundamental right in the light of the purpose pursued, since access to the data in question was adapted essentially as a normal means of providing evidence for criminal proceedings, even for any criminal offence. Such a restriction, given the gravity of the intervention in the private sphere of an individual, will only be sustained if it respects the conditions arising from the principle of proportionality. This means that the access of law enforcement authorities to data on telecommunications operations is only considered if the purpose of the criminal proceedings cannot be otherwise achieved, that the legislation contains sufficient guarantees to prevent the use of such data for a purpose other than the legal purpose envisaged, and that the limitation of the right of an individual to information self-determination is not an undue interference with regard to the importance of specific social relations, interests or values which are the object of the criminal offence for which the criminal proceedings are conducted. Such restrictions do not respect the contested provision, and this deficiency cannot be remedied by the judicial control provided for by it. While the courts may, in their decision on the regulation of the communication of the data concerned, provide protection for the fundamental right to information self-determination in the light of the facts of a particular case, they cannot, by their caselaw, replace the absence of sufficiently certain legal rules, which, within the meaning of Article 4 (2) of the Charter, is a prerequisite for limiting fundamental rights and freedoms in general.

31. On the basis of the above arguments, the Constitutional Court notes that the contested provision is contrary to the fundamental right to respect for private life in the form of the right to information self-determination pursuant to Articles 10 (3) and 13 of the Charter, as well as Article 8 (2) of the Convention, since it allows law enforcement authorities to intervene in order to prevent and prosecute criminal offences in a manner which is not proportionate to the requirement of proportionality to its restriction, arising from the rule of law, as expressed in Article 1 (1) of the Constitution. It also adds, for the sake of completeness, that, although the fact is not affected in substance by Article 88a (2) of the Code of Criminal Procedure, the Constitutional Court has, however, accepted its annulment since, by complying only with the application in relation to paragraph 1 of the contested provision, it would still be obsolent.

32. In conclusion, the Constitutional Court notes that those depositions cannot be interpreted as meaning that the application of the contested provision itself has always resulted in a breach of their fundamental right to privacy for the users of electronic communications services concerned. Even so far, the contested provision has allowed the court to assess the proportionality of the regulation on the communication of data on telecommunications traffic in respect of the fundamental right to information self-determination and to reject the request of a criminal authority in unfounded cases. It cannot therefore be concluded that any decision taken pursuant to Paragraph 88a of the Code of Criminal Procedure prior to the publication of this finding in the Collection of Laws has infringed the fundamental right or the freedom of the user of the electronic communications services concerned. Nor is this finding given any reason that would in general prevent the use of the data obtained to date on telecommunications traffic in the context of evidence in criminal proceedings. The right of the General Court to examine, in the course of its decision-making activities, whether there has been a breach of fundamental rights or freedoms by the criminal authorities concerned is without prejudice to these conclusions. At the same time, the Constitutional Court is convinced that the deficiencies referred to above provide a significant margin for undue or arbitrary action by law enforcement authorities in the detection and handling of the data in question, which, in view of the possible future negative effects, makes it impossible to maintain the contested provision in force for longer than the minimum necessary transitional period. Therefore, even in the light of the preparation of the new legislation, the Constitutional Court postponed the effectiveness of the derogatory statement in relation to the contested legal provision only until 30 September 2012, which it considers sufficient to complete the new legislative process.

33. For all these reasons, the Constitutional Court decided under Paragraph 70 (1) of the Constitutional Court Act as set out in the operative part of this finding.