Access by public authorities to electronic data that allows the identification of the holders of SIM cards activated with a stolen mobile phone: not limited to serious crimes as it is a non-serious interference with fundamental rights.
On February 16, 2015, Mr. Hernández Sierra filed a complaint with the Spanish Police for a robbery with violence, during which he was injured and his wallet and mobile phone were stolen. On May 5, 2015, the Investigative Court denied the request made by the Judicial Police to order various providers of electronic communications services to transmit the activated telephone numbers, from February 16 to February 27. of 2015, with the IMEI code of the stolen mobile phone, as well as the personal data or affiliation of the owners or users of the telephone numbers corresponding to the SIM cards activated with said code, such as your name, surname and, where applicable, address.
The Public Prosecutor's Office appealed the denial of said proceedings, invoking the ruling of the Supreme Court of July 26, 2010 in a similar case. The Provincial Court of Tarragona decided to suspend the procedure, recalling the modification of the Criminal Procedure Law (operated by Organic Law 13/2015, of October 5, for the strengthening of procedural guarantees and the regulation of technological research measures) and raised Two issues preliminary rulings before the CJEU:
1.- Is the seriousness of the crimes sufficient as a criterion that justifies interference in the fundamental rights recognized in the Articles 7 and 8 of the EU Charter of Fundamental Rights Can it be identified solely in response to the penalty that may be imposed for the crime being investigated or is it also necessary to identify particular levels of harm to individual and/or collective legal rights in the criminal conduct?
2.- Where appropriate, if it complies with the constitutional principles of the Union, used by the CJEU in its ruling of April 8, 2014 [Digital Rights Ireland and others, C‑293/12 and C‑594/12, EU:C:2014:238] as strict control standards of the Directive, the determination of the seriousness of the crime based only on the impossible penalty. What should that minimum threshold be? Would it be compatible with a general provision of a limit of three years in prison?
The CJEU resolves both issues in its ruling of October 2, 2018 (case C-207 / 16).
In this ruling it is declared that, in accordance with the principle of proportionality, in the field of prevention, investigation, discovery and prosecution of crimes, only the objective of fighting crime that is also classified as serious can justify serious interference. However, when the interference implied by such access is not serious, it may be justified by the objective of preventing, investigating, discovering and prosecuting crimes in general.
The data requested by the Spanish Police only allows linking, for a certain period, the SIM card or cards activated with the stolen mobile phone and the personal or affiliation data of the holders of these SIM cards. Without a comparison with the data relating to the communications made with these SIM cards and the location, these data do not make it possible to know the date, time, duration or recipients of the communications made with the SIM cards in question, nor the places where that these communications took place, nor the frequency of these with certain people during a specific period. Therefore, These data do not allow us to draw precise conclusions about people's private lives. whose data is affected, and cannot be classified as serious interference in the fundamental rights of those individuals.
The interference that access to said data entails may be justified by the objective of preventing, investigating, discovering and prosecuting crimes in general, referred to in Article 15, paragraph 1, first sentence, of the Directive 2002/58, without it being necessary for said crimes to be classified as serious.
In consecuense, It is declared that access by public authorities to data that allows identification of SIM card holders activated with a stolen mobile phone, such as the names, surnames and, where applicable, the addresses of said owners, constitutes an interference in fundamental rights of these, enshrined in the aforementioned articles of the Charter, but it is not serious such that said access must be limited to the fight against serious crime in the field of prevention, investigation, discovery and prosecution of crimes in general.
We hope that this ruling will contribute to clearing up the reluctance of our Courts when it comes to preventing, investigating, discovering and prosecuting any type of crime in which the adoption of technological investigative measures is required, weighing the different interests at stake but without frustrating the real possibilities of clarifying the facts.
Author Juan José Caselles
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