Relevant Aspects regarding Personal Data Protection in the Romanian Constitutional Case-Law

  • Crina Mihaela VERGA Lecturer Ph.D., “George Bacovia” University, Bacau, Romania
Keywords: personal data, Constitutional Court, Romania

Abstract

The topic addressed is of particular importance given that IT crime (cybercrime) is steadily increasing and it is difficult to control it due to the rapid expansion of the developments in the field. In this paper, we, firstly, define the notions of "cybercrime" and "personal data". Then, we extensively present some relevant decisions, delivered by the Constitutional Court of Romania, on issues related to the IT field. The interesting aspects of the Constitutional Court's vision on this area, which is the topic of this research, are highlighted in the presentation. The subject under analysis is very topical, because, by two decisions of the Constitutional Court, Law no.289/2008 and Law no.82/2012 were declared entirely unconstitutional and, until the time of the study, they have not been replaced with adequate legislation

References

[1] Florescu V, Florescu G. Analysis of computer crimes incriminated in the legislation in force and from the perspective of the new Criminal Code. The Romanian Journal of Informatics and Automation 2012, 22(2): 21-38.
[2] Convention for the protection of individuals with regard to automatic processing of personal data, adopted in Strasbourg on 28 January 1981, ratified by Law no.682 of 28 November 2001 on the ratification of the Convention for the protection of individuals with regard to automatic processing of personal data, Official Journal of Romania, Part I, no.830 of 21 December 2001.
[3] Law no.677/2001 on the protection of individuals with regard to the processing of personal data and the free movement of such data, Romanian Official Journal, Part I, no.790 of 12 December 2001, as subsequently amended and supplemented.
[4] Council of Europe Convention on Cybercrime, adopted in Budapest on 23 November 2001, ratified by Law no.64/2004, the Official Journal of Romania, Part I, no.343 of 20 April 2004.
[5] Directive 2002/58/EC of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector, the Official Journal of the European Union no. L 201 of 31 July 2002.
[6] Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC, the Official Journal of the European Union no. L 105, Special issue, 13/vol.53.
[7] Judgment of the Court (Grand Chamber) of 8 April 2014 (requests for a preliminary ruling from the High Court of Ireland (Ireland) and the Verfassungsgerichtshof (Austria)) — Digital Rights Ireland Ltd (C-293/12) v Minister for Communications, Marine and Natural Resources, Minister for Justice, Equality and Law Reform, The Commissioner of the Garda Síochána, Ireland and the Attorney General, and Kärntner Landesregierung, Michael Seitlinger, Christof Tschohl and Others (C-594/12), the Official Journal of the European Union no. C 175/6 of 10 June 2014.
[8] Law no.677/2001 on the protection of individuals with regard to the processing of personal data and the free movement of such data, the Official Journal, Part I, no.790 of 12 December 2001, as subsequently amended and supplemented.
[9] Law no.506/2004 on the processing of personal data and the protection of privacy in the electronic communications sector, the Official Journal, Part I, no.1101 of 25 November 2004, as subsequently amended and supplemented.
[10] Constitutional Court’s Decision no.962 of 25 June 2009, the Official Journal, Part I, no.563 of 13 August 2009.
[11] Constitutional Court’s Decision no.1258 of 8 October 2009 regarding the unconstitutional exception of the Law no.298/2008 on the retention of the data generated or processed by the providers of publicly available electronic communications services and of public communications networks as well as for amending the Law no.506/2004 on the processing of personal data and the protection of private life in the electronic communications sector, the Official Journal, Part I, no.798 of 23 November 2009.
[12] Law no.298/2008 on the retention of the data generated or processed by the providers of publicly available electronic communications services and of public communications networks as well as for amending the Law no.506/2004 on the processing of personal data and the protection of private life in the electronic communications sector, the Official Journal, Part I, no.780 of 21 November 2008
[13] Constitutional Court’s Decision no.440 of 8 July 2014 regarding the exception of unconstitutionality of Law no.82/2012 on the retention of the data generated or processed by the providers of public communications networks and providers of publicly available electronic communications services, as well as for amending and supplementing the Law no.506/2004 on the processing of personal data and the protection of private life in the electronic communications sector and Art.152 of the Criminal Procedure Code, published in the Official Journal Part I, no.653 of 4 September 2014.
[14] Law no. 82/2012 on the retention of the data generated or processed by the providers of public communications networks and providers of publicly available electronic communications services, as well as for amending and supplementing the Law no.506/2004 on the processing of personal data and the protection of private life in the electronic communications sector, the Official Journal, Part I, no.406 of 18 June 2012.
[15] Constitutional Court’s Decision no.461 of 16 September 2014 regarding the unconstitutionality’s objection of the Law amending and supplementing Government Emergency Ordinance no.111/2011 on electronic communications, the Official Journal, Part I, no.775 of 24 October 2014.
[16] Revised Romanian Constitution, the Official Journal, Part I, no.767 of 31 October 2003
[17] Art.8 of Law no.51/1991 on the National Security of Romania, republished in the Official Journal, Part I, no.190 of 18 March 2014.
[18] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC, the Official Journal of the European Union L 119/1 on 4 May 2016 .
[19] Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of the infractions or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, the Official Journal of the European Union L 119/89 on 4 May 2016.
Published
2017-08-18
How to Cite
VERGA, C. (2017). Relevant Aspects regarding Personal Data Protection in the Romanian Constitutional Case-Law. LUMEN Proceedings, 1, 977-991. https://doi.org/10.18662/lumproc.rsacvp2017.89