Personal data protection in criminal procedure International collaboration and principle of proportionality LEFIS ROVANIEMI MEETING 19TH 20TH JANUARY 2007 PRIVACY Nicolás Cabezudo Rodríguez Universidad de Valladolid Spain

MATTER OF FACT A important part of the ordinary acts of our life implies the cession of personal data, that are incorporated in interconnected date bases. A important part of the ordinary acts of our life implies the cession of 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 Spanish Constitution, and Constitutional Court decisions, SSTC 254/1993 y 292/2000; and Art Spanish Constitution, and Constitutional Court decisions, SSTC 254/1993 y 292/2000; and 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 the free movement of such data, Directive 2002/58/EC, concerning the processing of personal data and the protection of privacy in the electronic communications, EU Charter of Fundamental Rights of 7 December 2000,… 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 the free movement of such data, Directive 2002/58/EC, concerning the processing of personal data and the protection of privacy in the electronic communications, EU Charter of Fundamental Rights of 7 December 2000,… Criminal procedure requires the obtaining and management of an enormous volume of personal data, but neither criminal persecution, generically considered, nor the prevention of the crime could justify per se the limitation of this right. Criminal procedure requires the obtaining and management of an enormous volume of personal data, but neither criminal persecution, generically considered, nor the prevention of the crime could justify per se the limitation of this right. Nowadays, the exchange of this information between national agencies is easier than never. Nowadays, the exchange of this information between national agencies is easier than never. Personal data protection has been losing relative weight in favour of “supposedly” pragmatic reasons of criminal politics. Personal data protection has been losing relative weight in favour of “supposedly” pragmatic reasons of criminal politics.

PROPOSAL Removing pragmatism of this matter and returning to the legality, recognizing something as obvious as that of our target, as well as the governmental aim, must be to strike a fair balance between persecution and prevention imperatives and the safeguarding of fundamental rights. Removing pragmatism of this matter and returning to the legality, recognizing something as obvious as that of our target, as well as the governmental aim, must be to strike a fair balance between persecution and prevention imperatives and the safeguarding of fundamental rights. The most adequate and indisputable criterion to reach that fair balance comes from the principle of proportionality, which has to inform both the regulatory scheme and its practical application: BUT, IS IT ENOUGH? The most adequate and indisputable criterion to reach that fair balance comes from the principle of proportionality, which has to inform both the regulatory scheme and its practical application: BUT, IS IT ENOUGH?

PROPORTIONALITY (Concept) Protection mechanism of the freedom of the individuals and of the groups facing the state power. Protection mechanism of the freedom of the individuals and of the groups facing the state power. Components: Components: Suitability.-The community must pursue a legitimate aim and the means must be suitable to achieve it. Suitability.-The community must pursue a legitimate aim and the means must be suitable to achieve it. Necessity.-The means must have the least restrictive effect on colliding interests as regards other alternative means. Necessity.-The means must have the least restrictive effect on colliding interests as regards other alternative means. Proportionality in its narrower sense.- Balancing of the importance of the attainment of Community’s aim on the one hand and colliding interests on the other hand. Proportionality in its narrower sense.- Balancing of the importance of the attainment of Community’s aim on the one hand and colliding interests on the other hand.

PROPORTIONALITY AND PERSONAL DATA PROTECTION (I) Particularly relevant in determining whether a restriction under Article 8.2 of European Convention of Human Rights is "necessary in a democratic society“ (ECHR). Particularly relevant in determining whether a restriction under Article 8.2 of European Convention of Human Rights is "necessary in a democratic society“ (ECHR). Limited utility of European Court because of his case by case approach and the state’s margin of appreciation doctrine Limited utility of European Court because of his case by case approach and the state’s margin of appreciation doctrine In the abstract, capture of personal data can be a necessary, adequate measure and, besides, the persecution of the crime can be considered a predominant goal, a "relevant and sufficient reason", on the freedom to enjoy this right. In the abstract, capture of personal data can be a necessary, adequate measure and, besides, the persecution of the crime can be considered a predominant goal, a "relevant and sufficient reason", on the freedom to enjoy this right. In fact, EU often uses no more than this abstract view of proportionality and the mutual recognition of national standards in order to make easy the approbation of enacted Conventions. In fact, EU often uses no more than this abstract view of proportionality and the mutual recognition of national standards in order to make easy the approbation of enacted Conventions.

PROPORTIONALITY AND PERSONAL DATA 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 obtained without respecting the minimal requests that are recognized in the national legislation: It mustn’t be acceptable at domestic level the results which are obtained without respecting the minimal requests that are recognized in the national legislation: Convention on Mutual Assistance in Criminal Matters (29 May 2000): Requesting State can ask the receiving State to comply with national formalities or procedural requirements which are essential. Convention on Mutual Assistance in Criminal Matters (29 May 2000): Requesting State can ask the receiving State to comply with national formalities or procedural requirements which are essential. General framework v. national options: Is there any reason for that?. General framework v. national options: Is there any reason for that?. EU Member States have agreed to approximate the definition of offences and the level of sanctions for certain type of offences, in particular when they imply transnational aspects (EC Document, Prosecuting criminals and guaranteeing individuals' rights more effectively in free movement Europe). EU Member States have agreed to approximate the definition of offences and the level of sanctions for certain type of offences, in particular when they imply transnational aspects (EC Document, Prosecuting criminals and guaranteeing individuals' rights more effectively in free movement Europe). But in fact, how many differences among our systems do it exist?, Are They so important?. But in fact, how many differences among our systems do it exist?, Are They so important?.

PROVISIONAL CONCLUSIONS MATER OF FACT: MATER OF FACT: Investigation of the crimes needs the securing and management of a enormous volume of personal information. Investigation of the crimes needs the securing and management of a enormous volume of personal information. Transference of information between national agencies neither can nor must be carried out without bearing in mind the protection that the national and international legal systems recognize. Transference of information between national agencies neither can nor must be carried out without bearing in mind the protection that the national and 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 a common regulation stricter than a common policy such as proportionality. 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. WILL WE ABLE TO GIVE THE NECESSARY NEXT STEP?

Personal data protection in criminal procedure International collaboration and principle of proportionality THANK YOU © Nicolás Cabezudo Rodríguez Universidad de Valladolid SPAIN