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Anjum Shabbir
21st January 2020
Data, Tech & IP Human Rights

AG Pitruzzella: Data retention and criminal proceedings – national authorities need to strike a balance

In today’s Opinion, Advocate General Pitruzzella advises the Court to refine its case-law on data retention in the specific case of access to data for criminal investigations by public prosecutors.

In H.K./Projuratuur (C-746/18), a preliminary reference made by the Estonian Supreme Court, the Advocate General considers two issues.

First, the duration of the period in which an investigating authority has access to personal data, and second, whether the Estonian public prosecutor’s office is an ‘independent’ administrative authority within the meaning of the Court’s case law.

To the first question, the Advocate General proposes that Directive 2002/58, on personal data and the protection of privacy in the electronic communications sector, must be interpreted as meaning that (i) the categories of data concerned and (ii) the duration of the period in respect of which access is sought, should be included in the assessment criteria. That assessment is of the seriousness of the interference with fundamental rights that is associated with access by competent national authorities to the personal data that providers of electronic communications services are obliged to retain under national legislation.

Regarding the role of the public prosecutor’s office, the Advocate General, taking into account both Directive 2002/58 and the Charter of Fundamental Rights, suggested that the Court no longer consider public prosecutors as ‘independent administrative authorities’, if they are responsible for directing the pre-trial procedure, whilst also being likely to represent the public prosecution in judicial proceedings.

The full text of the Opinion is available here.


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