On 2th of March 2021, The Court of Justice of the European Union delivered a judgment in Case C-746/18 H.K v Prokuratuur; regarding the accession to personal data. Before the issue referred to the Court, the case followed as; due to the theft, use of another person's bank card, and violence against that person concluded as criminal proceedings were brought against the offender in Estonia. The first instance court of Estonia imposed a custodial sentence which was later upheld on appeal. The Supreme Court of Estonia (Riigikohus) expressed doubts by requesting a preliminary ruling under Article 267 of Treaty on the Functioning of the European Union, concerning the basis of personal data generated in the context of the provision of e-communication services and the investigating authority, the Estonian public prosecutor's office, had access to those data continuing whether Directive 2009/136/EC (directive on privacy and electronic communications) is compatible with the case before the court.
According to the judgment delivered by Grand Chamber, the Directive must be analyzed in the light of the Charter of Fundamental Rights of the European Union and regarding the issue of which law will prevail; Charter would be the one to prevail and precludes the national legislation that permits public authorities to have access to traffic or location data. This effects of providing information regarding both e-communications made by the user and the detection of the current locations of certain individuals by using the location data of the device or equipment that individual's disposal for prevention, investigation, detection, and prosecution of criminal offenses, without such access being confined to procedures and proceedings to battle serious crime or prevent the serious threats to public security. While conducting a criminal investigation, only the objectives of battling serious crime or preventing serious threats to public security are capable of justifying public authorities having access to a set of traffic or location data and liable in terms of other factors relating to the proportionality of a request for access, length of the period and in relation with specified objective regarding the justification of such access.
Court specifically marks that its Member State's discretion to create such law to determine the conditions under which providers of e-communications services must grant the competent national authorities accession to data which they possess. Nevertheless, to satisfy the requirement of proportionality which Member States are obliged by the Charter and general principles of EU law, such legislation must lay down clear and precise rules of the application of measures.
The prior review of personal data; should be carried out either by a court or by an independent administrative body which must hold a status enabling it to act objectively and impartially when carrying out its duties so in that regard must be free from any external influence by stating that authority must be a third party concerning which requests access to the personal data. The authority that conducts the prior review must not be involved in the conduct of the criminal investigation and has a neutral stance vis-a-vis the parties to the criminal proceedings. In the status of the Estonian public prosecutor's office; since the investigation and bringing of public prosecution been directed by the office, according to the Court, the public prosecutor's office is not in a position to carry out the prior review.
Accession and usage of personal data in various processes is a delicate topic that should be handle with care even if the actors are public authorities and the objective is establishing justice. Once access is performed to personal data, one must take into consideration that the fundamental rights to privacy and protection of this data of the individuals concerned. To access performed smoothly; measures must be appropriate, strictly proportionate to the intended purpose and this option must obtain in cases of necessity with subject to adequate safeguards.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.