New Tensions from Supreme Court on Telecommunications – Block on Device Content Access

Following the Supreme Court’s ruling last October, which by majority deemed the retention of telecommunications data by providers illegal, emphasizing that Law 183(I)/2007 violates the regulations of the European Convention and applicable EU jurisprudence, a new decision now intensifies issues for the Police and Legal Service regarding recorded conversations found on suspects’ mobile devices.

In the case involving 84 kilograms in Limassol, and armed with the Supreme Court’s telecommunications data ruling, the defense sought a prerogative writ of certiorari from the Supreme Court to annul the decree that granted access and/or disclosure of telecommunications data and/or private communication issued by the Limassol Court. The Attorney General challenged the validity of this application.

In the objection filed on behalf of the Attorney General, five reasons were presented for rejecting the application, asserting that the decree’s legal basis lies in the Law on the Protection of the Privacy of Private Communication (Law 92(I)/1996), and not in Law 183(I)/2007.

The Legal Service’s lawyer argued similarly, stating that the decree concerned a specific device for a specific suspect, clearly detailing both the alleged offenses and the suspect’s identity. He argued that unlike Law 183(I)/2007, Law 92(I)/96 allows access to telecommunications data of a specific communication in a targeted manner.

Defense: Laws Are Interrelated

Representing the applicant, the law firm Dimitriou & Dimitriou LLC argued for the legality of their request, referencing EU Directives 2009/136/EC and 2002/58/EC, and the EU Charter of Fundamental Rights. Article 8 of the Charter protects the right to privacy, home, and correspondence. They pointed to Article 52(1) which allows restrictions only when necessary and proportionate.

The defense stressed that while public interest might justify some measures, any restrictions must be the least intrusive means possible. The European Court of Justice (ECJ) applies a strict necessity test, stating that deviations must not exceed what is absolutely necessary. Even if a restriction is necessary, it must still be proportionate.

The defense held that both Laws are relevant and interconnected in terms of their legal consequences.

Supreme Court’s Decision Escalates Legal Debate

After hearing both sides, the Supreme Court referred to the laws governing privacy in private communications and cited the Plenary decision declaring Law 183(I)/2007 unconstitutional for breaching EU Directive 2002/58/EC and Union law. It noted that the law exceeds the proportionality principle.

The court also highlighted a critical omission: no timeline was provided for data retention, nor for when the recorded conversations occurred relative to the suspicion raised against the applicant.

Importantly, the Court noted: “The validity of a measure affecting rights must be assessed in light of proportionality. The measure must not exceed what is strictly necessary to achieve the legislation’s lawful aim. Targeted data retention appears to serve this purpose.”

Ultimately, the Supreme Court ruled that despite the Legal Service’s argument, the legal foundation for the contested decree was based on both Law 183(I)/2007 and Law 92(I)/96. The reference to Law 183(I)/2007 was not merely interpretive but defined the sought data, the method of its retention, and the provider’s obligations—retention deemed contrary to EU law.

The ruling further stated that the interrelation of the two laws was evident in the documentation itself, which included telecommunications data gathered under Law 183(I)/2007, matching data from the suspect’s phone.

Final Ruling

The Supreme Court annulled the decree under which the suspect’s phone data had been collected. It emphasized that the Plenary’s earlier ruling against mass data retention is binding and decisive for this case.

This decision caused discontent in the Legal Service, which is expected to appeal. In the drug case, evidence linked to telecommunications data will now be withdrawn.