The President of the Union of Prosecutors said this Monday that with the decision of the Constitutional Court (CC) on metadata adopted this Monday, the difficulties in the investigation of criminal cases caused by the previous decision of the Constitutional Court from 2022 will continue.
Speaking to the Lusa agency about the TC’s decision this Monday, Adau Carvalho said that “in essence, the TC continues to hold that the retention of traffic data (metadata) of any citizen, even for a shorter period of time (…) violates the Constitution of people’s private lives.
This Monday, the CU declared unconstitutional a parliamentary resolution that regulates access to communication metadata for the purposes of criminal investigations for exceeding “the limits of proportionality in restricting fundamental rights.”
The rule, which was declared unconstitutional this Monday, stipulated that traffic and location data would be retained in aggregate form “for a period of three months from the date of completion of the communication, which period shall be deemed to be extended to six months.” unless its owner objects.”
According to Judge Palacio Ratton, the proposal goes beyond “the limits of proportionality in limiting the fundamental rights of informational self-determination and preserving the intimacy of private life.”
According to Adao Carvalho, given the decision of the TC this Monday, “difficulties in the investigation remain and will continue,” noting that “there is no possibility of finding a solution to the problem” of the metadata.
However, the leader of the Union of Magistrates of Parliament noted that the impact of this decision will be less and less, since the previous statement about the unconstitutionality of the CU on metadata has already had an impact on the ongoing processes.
While acknowledging that with this TC decision, difficulties in criminal investigation remain, Adan Carvalho understands that a change in metadata law can only happen “at the level of a new European Union (EU) directive” that brings new guidelines in this area.
The union leader stressed that this was possible, especially because of the “tendency of the EU” to want to offer “a solution to this problem.”
The decree, defeated this Monday by the TC, was approved by the Assembly of the Republic in a final global vote on October 13 with votes in favor of PS, PSD and Chega and votes against IL, PCP, BE and Livre and was subsequently sent by the President of the Republic to the TC to monitor its compliance with the main law.
The rule, declared unconstitutional by the IC, provided that traffic and location data would be retained on an aggregate basis “for a period of three months from the date of completion of the communication, which period shall be deemed to be extended to six months unless objected to by the owner.”
On the other hand, the TC judges found that the other two norms, the assessment of which the President of the Republic requested, were not unconstitutional.
This decree, developed jointly by the PS and PSD, was a way for MPs to try to circumvent the declaration of unconstitutionality that had already been declared by the TC regarding the so-called metadata law on April 12, 2022.
This 2008 law transposed into the national legal system the 2006 European Directive, which the Court of Justice of the European Union declared invalid in 2014. Citing the primacy of European law and the Constitution, the National Data Protection Commission (CNPD) decided in 2017 to “repeal this law in situations brought before it.”
The April 2022 ruling of the Constitutional Court was issued in response to a request by the Ombudsman, Maria Lucia Amaral, to declare the unconstitutionality of articles 4, 6 and 9 of this law.
The court considered that the rules in question violate the principles enshrined in the Constitution, such as the right to preserve private and family life and the prohibition of access to personal data of third parties, except in exceptional cases, noting that “the legislator has not prescribed the need since the storage of data takes place on the territory of the European Union.” Union”.