Scrutiny Information

Scrutiny date: 17/04/2012

Subsidiarity Concern:

No Important information to exchange

No Veto

Information on parliamentary scrutiny

Passed on to the Committee on Justice, Public Administration and local-Self Government. The document has been discussed at its 3rd extraordinary meeting of 20 March 2012.

 

And at its 12th meeting of 23 March 2012 the Committee on EU Affairs of the National Assembly of the Republic of Slovenia adopted the following Position:

 

The Republic of Slovenia welcomes the efforts of the European Commission to reform the data protection legal framework in the fields of police and criminal justice and the execution of criminal penalties as provided by the discussed Proposal for a directive on the protection of individuals with regard to the processing of personal data which the competent authorities process for the purposes of investigation, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data. It notes that the Proposal suggests fairly important and useful solutions pertaining to the field of protection of human rights to information privacy with regard to the activities of the police and criminal justice, the privacy in general such as observing the differences between different individuals to whom personal data refer to, observing different degrees of accuracy and reliability of personal data, determining in principle a general restriction of processing sensitive personal data, prohibiting profiling, the traceability of personal data processing, the duty of the controller of personal data to notify the personal data breach to the supervisory authority for the protection of personal data, etc.

 

The Republic of Slovenia notes that in this case the European Commission chose to use a directive and not a regulation as the appropriate legal act to comprehensively regulate the renewal within the scope of the police and criminal justice.

 

However, a certain doubt needs to be expressed as to whether it is indeed appropriate to adopt - only three years after the adoption of the Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (OJ L 350, 30/12/2008), which also regulates the above areas yet only in the cases of cross-border exchange of personal data among the Member States – a new comprehensive legal framework that will regulate the areas stated above, although not only for cross-border exchange of personal data but also for "domestic" or internal processing of personal data for the purposes of the activities of the police and criminal justice.

 

Also, particular attention in the legislative procedure regarding the Proposal needs to be given to the interpretation or impacts of Article 276 of the Treaty on the Functioning of the European Union, depriving the Court of Justice of the European Union of the competence to check the validity or proportionality of actions of the police or other law enforcement authorities of a Member State, or to decide on the fulfilment of Member States' obligations to maintain public order and safeguard internal security. The said provision could lead to the conclusion that the legal basis for regulating personal data protection in the fields of police and criminal justice is more a competence of the Member States when it comes to "internal procedures", and that from the viewpoint of the Member States the possibility to regulate is rather optional (voluntary), which means that a considerable number of provisions of the Proposal should probably be of a "dispositive nature".

 

The provisions on delegated and implementing acts in the Proposal are rather unclear, allowing no assessment as to what competence will be given to the European Commission and whether such competence might excessively interfere with the legislative power of the Slovenian legislature.

 

Likewise, the Proposal is to a certain extent disputable in terms of its impact on pre-trial and criminal proceedings in the Republic of Slovenia, since it might affect the collection of information from the citizens, the individuals' rights in police interrogations (the "Miranda warning"), as well as criminal justice procedures (State Prosecutor's Office and criminal justice) as regard the legality or illegality of obtained evidence. Also possible is a negative impact on the efficiency of the above proceedings, unexpected, in terms of non-transparency and non-relatedness of EU and national regulations in the area of the essential institutions of pre-trial and criminal proceedings.

 

Therefore, the Republic of Slovenia is making a scrutiny and parliamentary reservation since at this point – pending the acquisition of detailed explanations from the European Commission under the legislative procedure, and in particular the definition of the impact of Article 276 of the Treaty on the Functioning of the European Union and of the added value of the legal act – it must protect the public interest of the Republic of Slovenia, including both the effective identification of perpetrators and detection of criminal offences and the effective prosecution of perpetrators of criminal offences, as well as the rights of individuals to information privacy and other specific procedural rights (providing information to the police in the status of "citizen"). The linguistic reservation is a matter of principle and is only temporary – the translation of the text of the Proposal has not yet been sufficiently examined.

 

Considering the positions of the Republic of Slovenia, the main purpose of the legislative procedure must be to avoid overregulation of the work of the police and criminal justice at the level of the European Union which would excessively depart from the provisions of the Council Framework Decision 2008/977/JHA; the possibility of regulating the interventions of EU law into "internal procedures" that are not related to cross-border exchange of personal data, should be adequately restricted.

 

During negotiations in the framework of the legislative procedure, the Republic of Slovenia will also strive to achieve that possible compromises do not lead to unjustifiable decline in the standards concerning personal data protection which would be lower than the comparable indicator, i.e. the "Council Framework Decision 2008/977/JHA", although – given the substantive ambition of the proposed legal act of the European Commission – there is a doubt that such could eventually occur.


Contact points for EU matters

IPEX Correspondents:
Phone: 00 386 4789920  Email Mrs. Aleksandra-Saša Lavrič Phone: 00 386 4789822  Email Ms. Polona Klemenčič
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