Personal data protection in criminal Personal data protection in criminal procedureprocedure

International collaboration and principle of International collaboration and principle of proportionalityproportionality

LEFIS ROVANIEMI MEETINGLEFIS ROVANIEMI MEETING19TH 20TH JANUARY 200719TH 20TH JANUARY 2007

PRIVACYPRIVACY

Nicolás Cabezudo RodríguezNicolás Cabezudo RodríguezUniversidad de ValladolidUniversidad de Valladolid

SpainSpain

MATTER OF FACTMATTER OF FACT

A important part of the ordinary acts of our life implies the cession of A important part of the ordinary acts of our life implies the cession of personal data, that are incorporated in interconnected date bases.personal data, that are incorporated in interconnected date bases.

Personal information is protected for national and international law:Personal information is protected for national and international law:

Art. 18.4 Spanish Constitution, and Constitutional Court decisions, Art. 18.4 Spanish Constitution, and Constitutional Court decisions, SSTC 254/1993 y 292/2000; andSSTC 254/1993 y 292/2000; and

Art. 8 ECHR, art. 6 TEU, Directive 95/46/EC, on the protection of Art. 8 ECHR, art. 6 TEU, Directive 95/46/EC, on the protection of individuals with regard to the processing of personal data and on individuals with regard to the processing of personal data and on the free movement of such data, Directive 2002/58/EC, concerning the free movement of such data, Directive 2002/58/EC, concerning the processing of personal data and the protection of privacy in the the processing of personal data and the protection of privacy in the electronic communications, EU Charter of Fundamental Rights of 7 electronic communications, EU Charter of Fundamental Rights of 7 December 2000,…December 2000,…

Criminal procedure requires the obtaining and management of an Criminal procedure requires the obtaining and management of an enormous volume of personal data, but neither criminal persecution, enormous volume of personal data, but neither criminal persecution, generically considered, nor the prevention of the crime could justify generically considered, nor the prevention of the crime could justify per se per se the limitation of this rightthe limitation of this right ..

Nowadays, the exchange of this information between national Nowadays, the exchange of this information between national agencies is easier than never.agencies is easier than never.

Personal data protection has been losing relative weight in favour of Personal data protection has been losing relative weight in favour of “supposedly” pragmatic reasons of criminal politics.“supposedly” pragmatic reasons of criminal politics.

PROPOSALPROPOSAL

Removing pragmatism of this matter and Removing pragmatism of this matter and returning to the legality, recognizing something as returning to the legality, recognizing something as obvious as that of our target, as well as the obvious as that of our target, as well as the governmental aim, must be to strike a fair balance governmental aim, must be to strike a fair balance between persecution and prevention imperatives between persecution and prevention imperatives and the safeguarding of fundamental rights.and the safeguarding of fundamental rights.

The most adequate and indisputable criterion to The most adequate and indisputable criterion to reach that fair balance comes from the principle of reach that fair balance comes from the principle of proportionality, which has to inform both the proportionality, which has to inform both the regulatory scheme and its practical application: regulatory scheme and its practical application: BUT, IS IT ENOUGH?BUT, IS IT ENOUGH?

PROPORTIONALITYPROPORTIONALITY((ConceptConcept))

Protection mechanism of the freedom of the individuals and Protection mechanism of the freedom of the individuals and of the groups facing the state power.of the groups facing the state power.

Components:Components:

Suitability.-The community must pursue a legitimate aim Suitability.-The community must pursue a legitimate aim and the means must be suitable to achieve it.and the means must be suitable to achieve it.

Necessity.-The means must have the least restrictive Necessity.-The means must have the least restrictive effect on colliding interests as regards other alternative effect on colliding interests as regards other alternative meansmeans..

Proportionality in its narrower sense.- Balancing of the Proportionality in its narrower sense.- Balancing of the importance of the attainment of Community’s aim on importance of the attainment of Community’s aim on the one hand and colliding interests on the other handthe one hand and colliding interests on the other hand..

PROPORTIONALITY AND PERSONAL DATA PROPORTIONALITY AND PERSONAL DATA PROTECTION (I)PROTECTION (I)

Particularly relevant in determining whether a restriction Particularly relevant in determining whether a restriction under Article 8.2 of European Convention of Human Rights is under Article 8.2 of European Convention of Human Rights is ""necessary in a democratic societynecessary in a democratic society“ (ECHR).“ (ECHR).

Limited utility of European Court because of his case by case Limited utility of European Court because of his case by case approach and the state’s margin of appreciation doctrineapproach and the state’s margin of appreciation doctrine

In the abstract,In the abstract, capture of personal data can be a necessary, capture of personal data can be a necessary, adequate measure and, besides, the persecution of the adequate measure and, besides, the persecution of the crime can be considered a predominant goal, a "crime can be considered a predominant goal, a "relevant and relevant and sufficient reasonsufficient reason", on the freedom to enjoy this right.", on the freedom to enjoy this right.

In fact, EU often uses no more than this abstract view of In fact, EU often uses no more than this abstract view of proportionality and the mutual recognition of national proportionality and the mutual recognition of national standards in order to make easy the approbation of enacted standards in order to make easy the approbation of enacted Conventions.Conventions.

PROPORTIONALITY AND PERSONAL DATA PROPORTIONALITY AND PERSONAL DATA PROTECTION (II)PROTECTION (II)

But, What happens beyond this point?:But, What happens beyond this point?:

Lack of uniformity in the regulatory scheme:Lack of uniformity in the regulatory scheme:

It mustn’t be acceptable at domestic level the results which are It mustn’t be acceptable at domestic level the results which are obtained without respecting the minimal requests that are obtained without respecting the minimal requests that are recognized in the national legislation:recognized in the national legislation:

Convention on Mutual Assistance in Criminal Matters (29 May 2000): Convention on Mutual Assistance in Criminal Matters (29 May 2000): Requesting State can ask the receiving State to comply with national Requesting State can ask the receiving State to comply with national formalities or procedural requirements which are essential. formalities or procedural requirements which are essential.

General framework v. national options: Is there any reason for General framework v. national options: Is there any reason for that?. that?.

EU Member States have agreed to approximate the definition of EU Member States have agreed to approximate the definition of offences and the level of sanctions for certain type of offences, in offences and the level of sanctions for certain type of offences, in particular when they imply transnational aspects (EC Document, particular when they imply transnational aspects (EC Document, Prosecuting criminals and guaranteeing individuals' rights more Prosecuting criminals and guaranteeing individuals' rights more effectively in free movement Europeeffectively in free movement Europe). ).

But in fact, how But in fact, how many differences among our systems do it exist?, many differences among our systems do it exist?, Are They so important?.Are They so important?.

PROVISIONAL CONCLUSIONSPROVISIONAL CONCLUSIONS

MATER OF FACT:MATER OF FACT:

Investigation of the crimes needs the securing and management of a enormous Investigation of the crimes needs the securing and management of a enormous volume of personal information.volume of personal information.

Transference of information between national agencies neither can nor must be Transference of information between national agencies neither can nor must be carried out without bearing in mind the protection that the national and carried out without bearing in mind the protection that the national and international legal systems recognize.international legal systems recognize.

FIRST STEP:FIRST STEP:

The principle of proportionality is an excellent starting point.The principle of proportionality is an excellent starting point.

However, his inherent relativity limits enormously its effectiveness.However, his inherent relativity limits enormously its effectiveness.

SECOND STEP:SECOND STEP:

To obtain a just balance between the interests in conflict it is necessary to adopt To obtain a just balance between the interests in conflict it is necessary to adopt a common regulation stricter than a common policy such as proportionality.a common regulation stricter than a common policy such as proportionality.

WILL WE ABLE TO GIVE THE NECESSARY NEXT STEP?WILL WE ABLE TO GIVE THE NECESSARY NEXT STEP?

Personal data protection in criminal Personal data protection in criminal procedureprocedure

International collaboration and principle of International collaboration and principle of proportionalityproportionality

THANK YOUTHANK YOU

© Nicolás Cabezudo Rodríguez© Nicolás Cabezudo Rodríguez

Universidad de ValladolidUniversidad de Valladolid

SPAINSPAIN