Abstract:

The data retention regulatory framework has been one of the most pressing issues in the European Union for the past few years. The main challenge for the EU and its Member States has been to strike a balance between security requirements by taking measures against terrorism and organized crime, and ensuring the protection of human rights and fundamental freedoms. Following the terrorist attacks in the United States and Europe at the beginning of the last decade, the need for introducing the obligation to collect and retain electronic communications data has been identified for the purpose of more effective suppression of terrorism and serious criminal offences. Legislative initiatives at the EU level have resulted in the adoption of regulations setting out a framework for data retention. It is indisputable that data retention is a very useful and effective means for preventing, detecting, investigating and prosecuting criminal offenses. However, at the same time it represents an extremely "invasive" interference with the fundamental rights and freedoms. In particular, it concerns the right to privacy and the right to freedom of expression, guaranteed by the Charter of Fundamental Rights. The European Court of Justice in its judgments Digital Rights and Tele2 pointed out a violation of fundamental rights in the EU and Member States data retention legislation. The paper analyses the scope and impact of the judgments in question on the national legislation and analyses the key human rights standards regarding data retention that the European Court of Justice has identified in its decisions. After the ECJ judgment, the EU member states, including the Republic of Croatia, have faced a major challenge in improving the legal framework for data retention. In this respect, an analysis of the relevant domestic legal framework is provided, as well as the need to review certain solutions for the purpose of full compliance with the requirements and criteria set by the ECJ.

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