There are two new decisions of the Court of Justice of the European Union that deal with the Access to Documents Regulation. Both decisions repeal earlier decisions of the General Court (former Court of First Instance), and are more restrictive in their understanding of the right of access to documents.
The first decision – on Case T-194/04 Bavarian Lager v Commission, deals with personal data. The Court points out that where a request based on the Access to Documents Regulation seeks to obtain access to documents including personal data, the provisions of the Data Protection Regulation become applicable in their entirety. This means that the recipient of personal data has to establish the need for the disclosure of the personal data, and the subject in question has the right to object at any time, on compelling legitimate grounds relating to his or her particular situation, to the processing of data relating to him or her.
In the second decision – on Case T-237/02 Technische Glaswerke Ilmenau v Commission, the Court examines the specifics of the state aid procedure. According to the Court interested parties other than the Member State responsible for granting the aid do not have a right under those procedures to consult the documents on the Commission’s administrative file.
The Bulgarian Electronic Communications Act is about to be amended. The amendment will provide unlimited, direct access to the personal data of Bulgarian users of Internet and telecommunication services for the Ministry of Interior. This data will be supposedly used for investigating criminal activities and organized crime groups (OCGs).
On face value it would appear that this is a normal step in efforts to fight criminal activities that can otherwise benefit from the opportunities provided by the Internet and modern telecommunications. If one reads the motives of the Bulgarian government for the proposed amendment, one may as well say that there are enough procedural guarantees for the privacy of communications of Bulgarian citizens.
So why do I think this amendment is dangerous?
One reason only – institutional capacity. As we have seen during the last few years, both the Bulgarian Ministry of Interior and the State Agency “National Security” have misused their powers of access to special investigative techniques (SIT). In France, which has a population of nearly 60 million people, there are about 5 000 authorizations per year for the use of SIT, while in Bulgaria, with a population of 7.6 million, the authorizations are 10 000 per year. The collected data has “leaked” in numerous cases in the media. Many times the SITs have been used against political rivals or journalists.
The uncontrolled use of SITs threatens not only the human rights of individuals, but the political process as well. I should remind here that Bulgaria is still monitored under the Cooperation and Verification Mechanism specifically due to the lack of institutional capacity of the law enforcement institutions.
Giving more powers to these institutions and the Ministry of the Interior in particular without a comprehensive reform will only exacerbate existing problems. I should probably remind the Government that even today the low-end corruption in the traffic police is still a major issue of huge proportions. How are we supposed to believe that our data are safe with the Ministry of Interior when we are witnessing acts of corruption on the streets every day?
The limitations of human rights are sometimes justified to maintain the public order. But the current approach (widespread use of SITs, higher sanctions for various crimes) is not functionally justified. It will not deliver measurable results and it will not improve the law enforcement success record.
The good news is that an impartial body – the European Commission, will continue to evaluate the Bulgarian efforts in fighting crime and may suggest corrections of policy should these be needed.
Posted in Bulgaria, Human Rights, Institutional Affairs, Justice and Internal Affairs, Procedural Law, Telecommunications
Tagged abuse, institutional capacity, interface, Internet, law enforcement, Ministry of Interior, organized crime groups, personal data, Telecommunications, unlimited access