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Slovak Constitutional Court cancels mass surveillance of citizens (eisionline.org)
282 points by sinak 938 days ago | hide | past | web | favorite | 55 comments

This is related to "Data Retention Directive" [1] which was declared invalid by EU Court of Justice for violating EU Charter of Fundamental Rights.

It means member EU states must update their legislation which will prohibit metadata retention by communication operators (including ISPs) to absolute minimum (generally only what's required for invoicing).

That's why this ruling by Slovak Constitutional Court seems a bit pointless. Slovak parliament would prohibit mass surveillance sooner or later anyway as a result of EU Court of Justice ruling.

[1]: http://en.wikipedia.org/wiki/Data_Retention_Directive

The ECJ declared the data retention directive invalid, which means that member states are not required to implement it in their legislature. However, that decision does not remove the DRD from effect in the countries that already implemented it and it does not ban countries from implementing their own version of it.

It sounds like the slovak government was trying to implement its own version despite the europe-wide law being struck down.

> It sounds like the slovak government was trying to implement its own version despite the europe-wide law being struck down.

EU countries first decided to create the directive, and then implemented this while it was in force. There was no big bad EU imposing it on reluctant states. And now most countries are in no hurry to dismantle the their national legislation implementing the directive.

So how exactly does this "Charter of Fundamental Rights of the European Union" work? Wikipedia says

> European Union must act and legislate consistently with the Charter and the EU's courts will strike down legislation adopted by the EU's institutions that contravenes it.

So somehow it constrains EU institutions, but not EU member states, somewhat like the US Bill of Rights before the 14th amendment?

I wonder why politicians that enact unconstitutional laws don't get punished. They breached the rules. Everybody else except bankers and the police get punished for that.

Leaders who do unconstitutional things might be. If you trample on your citizens sufficiently, you might live to see the inside of the Hague.

But it would be completely ridiculous to imprison someone for passing a law. The process here did exactly what it's supposed to do. Politicians make a law. People are unhappy with said law and challenge it. People win in court. Law is no longer in force and the people get their redress.

Also, politicians might enact an unconstitutional law with popular support. And even if that doesn't happen, it is far from obvious what is constitutional and what is not. Should John McCain go to prison because of Citizens United? Should local politicians be incarcerated after the city lost McDonald v Chicago? That would be ridiculous.

Lastly it would mean punishing people for something that doesn't have an enumerated punishment. We don't do that in the modern world.

Intentionally violating the constitution is a violation of the privileges of office. If it can be proven, they should be forced out of office.

As for the "punishment", it should clearly correspond to the actual law having been passed, and in what manner it infringed on the constitutional rights of citizens.

Popular support does not make this any better, as minorities are usually the ones who end up hurt.

Politicians can be forced out of office for anything. It's called elections. Most countries also have some kind of impeachment process.

Are you saying politicians shouldn't attempt to do what their constituents sent them to do, under the penalty of imprisonment? Minorities are protected not by politics, rather by judicial review, which worked great in this case.

Are you suggesting that elections should give people a status that puts them beyond the countries constitution?

Remember that these principles are so general, they must apply equally to Western politicians pushing security policies, as to e.g. Muslim politicians in Egypt or other ME countries pushing for Sharia-inspired policies.

What their constituents want is a nice idea until this violates the most basic rights of citizens spelled out clearly for this purpose, i.e. to guide and limit any future laws.

That being said, there is always the possibility of revising the constitution. Even if that is not a good idea. But for good reason, that is a lot more difficult to accomplish.

I don't know the specifics here, but as far as I know it is fairly rare for constitutions to have language that specifically make it illegal for their politicians to pass a law. The US is a strange outlier there with its use of phrases like "Congress shall make no law (...)".

The issue is not that elections give people a status that puts them beyond the constitution, but that the constitutions rarely make it a crime to pass unconstitutional laws at all:

In most cases of unconstitutional laws, the laws tend to be unconstitutional not because it is against the law to pass them, but because the rules they add can't be reconciled with portions of the constitution in question, and so are found to be invalid or similar.

Even in the case of the US - or any other countries with similar language - note that even in those cases constitutions specifically does not (at least not in any case I know about) follow the pattern of a criminal code: It does not set criteria for punishment. So even if you were to get a court to assign blame and e.g. "convict" Congress, there would be no consequence.

If you want politicians to be punished for passing such laws, then that in itself would require a massive constitutional change.

Generally you should assume that this is intentional, given that the judiciary is explicitly separate and independent, and so one can rarely assume that individual politicians can know whether or not any given law will at some future date be found to conflict with the constitution. Especially given that interpretations of constitutional law, as any other, tends to evolve over time. Sure - there might be the odd really blatant attempt at passing something silly - but those really blatant attempts are also the least dangerous and least important, as they will be struck down quickly.

The dangerous ones are exactly the ones that are sneakily enough formulated that they stand a chance to escape unscathed. But then, those are also the ones where it is unreasonable to assume that the people voting for it had reason to believe it would be unconstitutional.

Contrarily I would expect a clause prohibiting unconstitutional laws in pretty much every single constitution ever written.

As you say however, constitutions rarely define crimes, and so making the passing of unconstitutional laws a crime would be an unexpected outlier. This is not however what I am talking about.

In passing a law that knowingly violates the constitution, the politicians are acting to _enable_ crimes, or rather, actions considered crimes under existing legislation. This action takes place before the new (later to be hopefully struck down) law is passed, and should be considered a criminal act.

As far as knowing what they are doing affecting their conviction or punishment, I fully agree that not understanding that their actions will lead to "necessarily criminal" consequences, should be considered a mitigating factor.

> Contrarily I would expect a clause prohibiting unconstitutional laws in pretty much every single constitution ever written.

That would be very strange. Not even the US constitution has that because it would be legally redundant. Of course a law that is inconsistent with the constitution is invalid. There's no need to state that.

What the US constitution does is in itself unusual when it specifically calls out what types of laws Congress can't pass rather than setting out principles that would render these laws invalid because they'd conflict.

E.g. Norway's constitution used to have a clause that states a "right to work" rather than stating that parliament can not pass laws that have the effect of restricting peoples right to work. The effect is the same, and the former approach is to my knowledge far more common in constitutional law.

> In passing a law that knowingly violates the constitution, the politicians are acting to _enable_ crimes, or rather, actions considered crimes under existing legislation.

A major part of a parliaments function is to alter what is considered crimes under existing legislation. If they can not do this without fear of criminal prosecution if one of these laws are found to conflict with the constitution... Well, that constitution would be amended very quickly after it becomes obvious no laws gets passed anymore once politicians fear the whims of a constitutional court which can change with every new appointment.

You might be right about this. I found no mention of this at all in the Norwegian constitution, and I found various clauses explicitly giving immunity for votes cast during their tenure in several other constitutions I looked at. This presumably also applies to laws later ruled unconstitutional.

It is not what I would have expected, and strikes me as an oversight. Moreover, it reeks of entitlement.

There should never be any necessity to pass laws that even come close to violating a constitution, so no, I do not believe it would slow down the legislative process.

Instead, it would provide an incentive to avoid passing laws which will hopefully soon be struck down again, some 2-10 years later, but may cause damage to society in the meantime.

If politicians need to be afraid of the constitutional court for passing a specific bill, they should not pass it. There is also usually a way to demand an opinion from the court before a bill is passed, which might absolve them in this regard.

Surely the incentives should be set up to avoid unconstitutional laws from ever being passed in the first place, and not to only be active for "short" periods at a time?

Do you punish the guy who drafted the initial proposal? The guy who added the amendment that made it unconstitutional? Everybody who voted aye when it went to the floor?

Yes. While you can perhaps forgive any single individual for thinking a law might not violate the Constitution when it actually does, the deterrent effect should be that laws of questionable constitutionality should deter anyone who suspects such unconstitutionality that it would bar them from voting on it.

If the law doesn't get enough votes to be passed, then nobody gets in trouble.

I honestly don't know that it solves the problem of laws living up to the letter of the Constitution while failing to live up to the spirit, but it'd be a start.

I love this idea, but I fear it's unworkable in practice.

In the first place, it's lawmakers at the end of the day who have to approve this thing (even if you manage to swing a constitutional convention, and that's scary all on its own) - and I think you'd be hard pressed to get the requisite number of someones to pass a law that can only make their own lives worse.

It would require a revolution, basically - the entrenched system (and my apologies for that eye-rolling cliché) would never allow it. It would take the same fresh look and honest forward thinking that led to the constitution's drafting in the first place

A Constitution with zero teeth is sure to be perpetually shat upon, which is our current reality.

That said, I agree that it's unworkable, for exactly the reasons you stated. Beyond that, the ship has sailed. With our current interpretations of the Constitution, there's hardly any law that could be presumed unconstitutional by any common man.

Any such fix would require either a revolution or a time machine.

"Mr. President," one aide in the meeting said. "There is a valid case that the provisions in this law undermine the Constitution."

"Stop throwing the Constitution in my face," Bush screamed back. "It's just a goddamned piece of paper!"[1]

1. http://www.dailykos.com/story/2005/12/11/171129/-Bush-on-the...

> that in itself would require a massive constitutional change.

I'm not seeing that. There is no inherent, nor implied right to immunity. You can legislate it away (however unlikely that might be) and there is no recourse to the constitution.

The US constitution binds the Government ( Politicians ) ... not the people.

Point being? I fail to see the relevance.

It's not putting them above a constitution. There is a process in place to resolve constitutional issues. In this case it worked perfectly.

Punishing people merely for passing a law would itself be unconstitutional. There is no enumerated punishment nor is there any reasonable way to assert culpability.

> It's not putting them above a constitution. There is a process in place to resolve constitutional issues. In this case it worked perfectly.

If transient violations that might take many years to resolve, and often present a slippery slope, do not face any censure, then they are practically above the constitution, even if there is a theoretical process.

While you point out that it worked in this case, that is nothing but an anecdote. I could equally list many cases where the exact opposite is the case. Consider for example the difficulty faced in bringing security policies before the courts in the U.S., due to the government claiming that the very discussion of the details of the implementations of these policies would harm national security.

> Punishing people merely for passing a law would itself be unconstitutional. There is no enumerated punishment nor is there any reasonable way to assert culpability.

I'm sorry if I was unclear, but I tried to address both of these points in my first reply. Let me try again to put it more clearly.

First, they should lose their office for abusing its privileges. This has nothing to do with the fact that they violated, or worked against the constitution specifically, but that they violated the oaths of their offices, which happen to preclude that.

Secondly, the punishment does not require newly introduced 'ex post facto' laws, as you seem to be implying, but should be in keeping with the facilitation of the violation of actual existing laws, which prevented the unconstitutional actions from taken place before the new laws were passed.

In other words, a politician that facilitates a law that unconstitutionally provides exceptions to previous existing laws, should be liable as an accessory to the crimes specified by that pre-existing law.

As far as determing their complicity is concerned, I believe that the fact that most everything is on record makes that fairly trivial.

> Lastly it would mean punishing people for something that doesn't have an enumerated punishment. We don't do that in the modern world.

We shouldn't do that in the modern world, but we do http://en.wikipedia.org/wiki/Anti-social_behaviour_order

I dunno, maybe we oughta make it that way. Wouldn't it be nice if there was a chilling effect around passing laws that may step on someone's rights.

Because there isn't a law against enacting unconstitutional laws. Actions are legal by default.

I suspect that if you try to write a coherent rule set that would punish those who vote to enact unconstitutional laws, you might find the solution worse than the problem. For instance, think about the relationship between punishable votes and secret elections.

So if Justice Roberts was feeling slightly different one morning, we should have punished Obama for trying to pass an unconstitutional law?

I agree that we shouldn't prosecute politicians for this kind of thing, but note that Justice Roberts feeling different one morning can mean the difference between punishment and not for ordinary people when the law in question is unsettled. (Morse v. Frederick comes to mind.)

Sure, then we'll lock up developers who write insecure software. I think we'll need some bigger jails.

European directives are often ignored by national governments, until they are challenged in court (often in the European courts) and actually forced to implement them. So any efforts by the various national courts and legislatures are very welcome and hardly pointless.

I expect some small EU countries, probably East-European, have governments that are agile/smart enough to pull serious datacenter biz into their borders by passing sensible legislation and backing it up with actual (non-)action.

They are in many ways more sovereign then the larger and/or more economically developed EU nations. And they still have politicians that are concerned with (democratic) principles, instead of the two-faced puppets of plutocracy that we find waaaay to often in high public positions.

Go Slovakia!

Clearly you don't live in the region. Since I've lived in both Central Europe and the UK and US, I can guarantee you that corruption blossoms (at least as judged by the public) everywhere the same.

P.S.: Slovakia is in Central, not Eastern Europe, and things get generally worse as you go East.

It's a bit funny you should say that, because right now there is this huge case about the government tunneling a private corporation which was supposed to build highways in the country all around the news in Slovakia :)

Transparency International publishes this thing so we don't need to go by gut feelings re. corruption as judged by the public:


Spoiler: Big differences across Europe

I love how Greenland's, like, some sort of anti-corruption candle on that map.

Also, I'm surprised that New Zealand, of all places, ranks higher than all but Denmark in cleanliness (and not surprised that North Korea and Somalia are tied in corruption).

I want to note that this is corruption as judged by business people. So it may not be much better,

Rest of the EU: Please follow this example.

It's already shut/shot down in multiple EU countries. E.g. in The Netherlands in March and in Germany in 2010.

There seems to be a complete overview here:


Yes but some have no intention of annulling it. Sweden, for instance.

Germany will get it again, with a newspeak rebranding.

The data in the link is incorrect/outdated/incomplete. I have found at least two inaccuracies.

I want to see more and more countries adopt a similar measure publicly, because as more countries pass such laws, the more it bluntly highlights that the "Land of the Free" can only live up to that maxim if it too passes laws canceling mass surveillance of its citizens.

Are you saying if more countries adopt things US will too?

Cause we all know that is just not true.

Does the "Data Retention Directive" [1] also apply to UK?

[1] http://en.wikipedia.org/wiki/Data_Retention_Directive

If it wouldn't have been challenged in the CJEU and thus made invalid everywhere, yes it would.

If only enough other countries did this same thing... that there was enormous enough pressure on the usual suspects (US, UK, NZ, CA, AU) to do this too.

I'm afraid we're long past the point of that happening, though, and it makes me sad.

Wow I wish we had Slovakian jurists here in USA.

No, you don't. (-; As we say in Slovak, one swallow does not make summer. Good decisions like this one are massively outnumbered by "process errors" (or whatever it is called on English) covering the asses of mafia backed by our elected government officials.

Not exactly a slovak saying, comes from greece

From wikitionary

An allusion to the return of migrating swallows at the start of the summer season. From a remark by Aristotle (384 BCE - 322 BCE): "One swallow does not a summer make, nor one fine day; similarly one day or brief time of happiness does not make a person entirely happy."

I don't recall claiming that this saying originates from Slovakia, only that it's one that is relatively common there. I have also heard it used in Czech, but I don't think I've ever heard it in English, hence the remark.

Haha I thought we were talking about beer. Presumably "swallow" is not a homonym in Slovak or Greek.

EU countries decided to create the directive, and then implemented this while it was in force. It is slovak government

I cannot find any source in Slovakian language (I can understand it). Does anyone have that?


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