International review of criminal policy - Nos. 43 and 44/Specific problems with personal data


 * C. Specific problems with personal data

166. Potentially coercive powers for collecting evidence in the field of information technology, as analysed above, cover both personal and non-personal data. With respect to personal data, however, there are additional legal problems that mainly concern gathering, storing and linking personal data in the course of criminal proceedings. In this field of "privacy protection in criminal matters", legal requirements vary considerably among countries. Differences between various legal systems are found not only in substantive law requirements but also in the constitutional background, legal context and legislative technique of the relevant provisions.

167. An extensive discussion of the underlying constitutional implications regarding the gathering, storing and linking of personal data exists in only a few countries. For example, in the Federal Republic of Germany, the Federal Constitutional Court, in its famous "census decision", recognized that the State's storage of personal data, especially in computer systems, could influence citizen's behaviour and endanger their general liberty of action and must therefore be considered as a violation of civil liberties ("right of informational self-determination"), which requires an express and precise legal basis. This legal balance must balance the interests of the individual and the right to privacy, on the one hand, and the interests of society in the suppression of criminal offences and the maintenance of public order, on the other hand. The new Constitution of Spain of 1978, the new revised Constitution of Portugal of 1982, the Constitution of the Netherlands of 1983 and the new Constitution of Brazil of 1988 even contain specific safeguards protecting their citizens' privacy against the incursions of modern computer technology. However, in many other countries the gathering and storing of personal date are not (yet) considered to be of constitutional relevance and are dealt with by the legislature in ordinary statutory (non-constitutional) law on a voluntary basis.

168. In regulating the legality of gathering, storing and linking personal data (either on a constitutional, compulsory basis or on an ordinary, voluntary legal basis), various legal systems place the relevant provisions in different contexts and laws. A few countries, such as Germany, intend to place most of the respective provisions within the purview of their criminal procedural law.. This legislative technique has the advantage that the criminal procedural code retains its monopoly over the application of criminal law and thus retains the exclusive enumeration of powers regulating the infringement of civil liberties in the course of criminal prosecution. However, most countries (uniquely or in part) regulate the legality of police files within their general data protection acts; in most cases the relevant provisions are applicable both to the enforcement activity of the police (prosecution of crimes) and to its preventive action (maintenance of public order). Some countries exclude police files, completely or partly, from their general data protection laws and/or create specific acts or decrees for all types of (law enforcement or preventive) police data. In a number of countries, additional specific laws concerning criminal records exist. However, there are also legal systems without any statutory legal provisions regulating the general use of personal data in the police sector.

169. Apart from these questions of placement and context of the relevant statutes, the legislative technique, content and control mechanisms of the relevant laws also vary. With respect to legislative technique, some countries, such as Germany, consider a more detailed and precise regulation necessary; other countries resort to more or less general clauses.

170. As far as the contents of the various laws are concerned, serious limitations rarely seem to be applicable to police files. In many countries, far-reaching and precise regulations concerning the deletion of entries exist only with respect to registers of criminal convictions.