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Determining the catalogue of information on the individual, gathered by technical means in operational activities; rules for deleting obtained data K 23/11

At the hearings on 1, 2 and 3 April as well as on 30 July 2014, the Constitutional Tribunal (full bench) considered joined applications, submitted by the Polish Ombudsman and the Public Prosecutor-General, with regard to determining the catalogue of information on the individual, gathered by technical means in operational activities, as well as rules for deleting obtained data.

In its judgment of 30 July 2014, the Constitutional Tribunal adjudicated that:

1)

a) Article 19(1)(8) of the Act of 6 April 1990 on the Police,

b) Article 9e(1)(7) of the Act of 12 October 1990 on the Border Guard,

c) Article 36c(1)(5) of the Act of 28 September 1991 on Tax Audit,

d) Article 31(1)(17) of the Act of 24 August 2001 on the Military Police and military authorities responsible for maintaining order and discipline,

– construed as concerning offences specified in the Polish penal law which were prosecuted on the basis of ratified international agreements upon consent expressed by statute, were consistent with Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution of the Republic of Poland as well as Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950, as amended by Protocols Nos 3, 5 and 8 as well as supplemented by Protocol No. 2,

2) Article 27(1), in conjunction with Article 5(1)(2)(b), of the Act of 24 May 2002 on the Internal Security Agency and the Foreign Intelligence Agency was inconsistent with Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution,

3)

a) Article 27(1), in conjunction with Article 5(1)(2)(a), of the Act on the Internal Security Agency and the Foreign Intelligence Agency, insofar as it comprised the wording: “and other offences that are against national security”,

b) Article 27(1), in conjunction with Article 5(1)(2)(c), of the Act on the Internal Security Agency and the Foreign Intelligence Agency,

c) Article 31(1), in conjunction with Article 5(1)(1)(a), of the Act of 9 June 2006 on the Military Counter-Intelligence Service and the Military Intelligence Service, insofar as it comprised the wording “as well as other statutes and international agreements”

were consistent with Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution as well as Article 8(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms,

4)

a) Article 19(6)(3) of the Act on the Police,

b) Article 9e(7)(3) of the Act on the Border Guard,

c) Article 36c(4)(3) of the Act on Tax Audit,

d) Article 31(7)(3) of the Act on the Military Police and military authorities responsible for maintaining order and discipline,

e) Article 27(6)(3) of the Act on the Internal Security Agency and the Foreign Intelligence Agency,

f) Article 31(4)(3) of the Act on the Military Counter-Intelligence Service and the Military Intelligence Service,

g) Article 17(5)(3) of the Act of 9 June 2006 on the Central Anti-Corruption Bureau

– construed in such a way that a competent authority ordering operational surveillance indicated the type of technical means for obtaining information and evidence as well as for storing them in a given case, were consistent with Article 2 and Article 47 in conjunction with Article 31(3) of the Constitution,

5)

a) Article 20c(1) of the Act on the Police,

b) Article 10b(1) of the Act on the Border Guard

c) Article 36b(1)(1) of the Act on Tax Audit,

d) Article 30(1) of the Act on the Military Police and military authorities responsible for maintaining order and discipline,

e) Article 28(1)(1) of the Act on the Internal Security Agency and the Foreign Intelligence Agency,

f) Article 32(1)(1) of the Act on the Military Counter-Intelligence Service and the Military Intelligence Service,

g) Article 18(1)(1) of the Act on the Central Anti-Corruption Bureau

h) Article 75d(1) of the Act of 27 August 2009 on the Customs Service

– insofar as they did not provide for independent supervision over disclosing communications data referred to in Article 180c and Article 180d of the Act of 16 July 2004 – the Telecommunications Law, were inconsistent with Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution,

6)

a) Article 19 of the Act on the Police,

b) Article 9e of the Act on the Border Guard

c) Article 36c of the Act on Tax Audit,

d) Article 31 of the Act on the Military Police and military authorities responsible for maintaining order and discipline,

e) Article 27 of the Act on the Internal Security Agency and the Foreign Intelligence Agency,

f) Article 31 of the Act on the Military Counter-Intelligence Service and the Military Intelligence Service,

g) Article 17 of the Act on the Central Anti-Corruption Bureau

– insofar as they did not provide for a guarantee that materials which contained information that was prohibited from being evidence should be subject to immediate, witnessed and recorded destruction, in the case where the court had not lifted professional confidentiality requirement, were inconsistent with Article 42(2), Article 47, Article 49, Article 51(2) and Article 54(1) in conjunction with Article 31(3) of the Constitution,

7) Article 36b(5) of the Act on Tax Audit was consistent with Article 51(2) in conjunction with Article 31(3) of the Constitution,

8)

a) Article 28 of the Act on the Internal Security Agency and the Foreign Intelligence Agency,

b) Article 32 of the Act on the Military Counter-Intelligence Service and the Military Intelligence Service,

c) Article 18 of the Act on the Central Anti-Corruption Bureau

– insofar as they did not provide for the deletion of data that were irrelevant for the conduct of investigative proceedings, were inconsistent with Article 51(2) in conjunction with Article 31(3) of the Constitution,

9) Article 75d(5) of the Act on Customs Service, insofar as it allowed for retaining other materials than those that contained information which was relevant for proceedings in cases on tax misdemeanours or offences specified in chapter 9 of the Act of 10 September 1999 ‑ the Penal Fiscal Code, was inconsistent with Article 51(4) of the Constitution.

The provisions enumerated in points 2, 5, 6 and 8, within the scope indicated therein, would cease to have effect after the lapse of eighteen months from the date of the publication of the judgment in the Journal of Laws.

As to the remainder, the Tribunal discontinued the review proceedings.

Dissenting opinions to the judgment were submitted by the following judges of the Constitutional Tribunal: Wojciech Hermeliński and Marek Zubik.

1. On 30 July 2014, the Constitutional Tribunal issued a judgment with regard to seven joined applications submitted by the Polish Ombudsman and the Public Prosecutor-General. The said applications concerned provisions on carrying out operational surveillance activities and disclosing communications data to the Police, the Border Guard, the Military Police, authorities responsible for tax audits, the Internal Security Agency, the Military Counter-Intelligence Service, the Central Anti-Corruption Bureau as well as – and that only regarded disclosing communications data – the Customs Service.

2. The Constitutional Tribunal extensively presented its previous findings as regards the constitutionally protected scope of privacy (Article 47) and the privacy of communication (Article 49 of the Constitution), as well as what requirements should be met by provisions on the confidential acquisition of information about individuals.

2.1. Privacy constitutes a freedom that is constitutionally protected, with all the consequences of such protection. This above all implies that individuals are at liberty to act within the scope of that freedom as long as a relevant statute does not delineate its scope. Only an unambiguous statutory regulation may impose restrictions within the scope of undertaking certain actions that fall within the limits of a specific freedom. However, not every regulation is admissible in the light of constitutional norms, principles and values.

2.2. Constitutional protection arising from Article 47, Article 49 and Article 51(1) of the Constitution comprises all ways of transferring information in every form of communication, regardless of means used (e.g. conversations in person and on the phone, written correspondence, fax, SMS and MMS messages, email, exchanging messages via Internet portals). The said protection pertains not only to the content of a communication but also to the circumstances of the communication.

The scope of the constitutionally guaranteed freedom of the individual and his/her informational self-determination comprises protection against the secret monitoring of individuals and conversations held by them even in places that are public and generally accessible. It is irrelevant whether a given exchange of information concerns strictly private life or professional life, including economic activity carried out by interlocutors. Indeed, there is no such area of personal life which would not be subject to constitutional protection, or where the said protection would be restricted.

2.3. The Tribunal pointed out the significance of the Internet and other modern forms of communication used by individuals. It explained that the protection of constitutional freedoms and rights related to the use of the Internet and other electronic means of long-distance communication does not differ from protection guaranteed to the traditional forms of communication or to any other activity.

2.4. When assessing the challenged provisions on operational and surveillance activities, the Constitutional Tribunal made reference to its own previous jurisprudence as well as the well-established jurisprudence of the ECHR, the CJEU and constitutional courts in certain EU Member States.

3. In point 1 of the operative part of the judgment, the Constitutional Tribunal stated that Article 19(1)(8) of the Act on the Police, Article 9e(1)(7) of the Act on the Border Guard, Article 36c(1)(5) of the Act on Tax Audit, Article 31(1)(17) of the Act on the Military Police ‑ construed as concerning offences specified in the Polish penal law which were prosecuted on the basis of ratified international agreements upon consent expressed by statute, were consistent with Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution of the Republic of Poland as well as Article 8 of the European Convention on Human Rights

3.1. The provisions challenged within that group regulate the scope ratione materiae of operational surveillance. The legislator provided the possibility of conducting operational surveillance to prevent, detect and determine perpetrators as well as to obtain and enhance evidence of “offences prosecuted on the basis of international agreements or arrangements”. The legislator did not indicate in which particular international agreements or arrangements offences were to be specified, what types of offences were meant or what legal interests they could threaten.

3.2. The Tribunal recognised doubts regarding interpretation that had arisen in the context of a linguistic interpretation of those provisions. However, it deemed that it was possible to assume an interpretation that would be consistent with the Constitution. Since the said provisions provide for authorisation for secret interference in the constitutional rights and freedoms of individuals which consists in carrying out surveillance, and thus obtaining information on private life or information subject to the protection of the privacy of communication, then ‑ in the light of Article 31(3) of the Constitution ‑ specifying the circumstances in which such interference will be constitutionally admissible may take place solely in normative acts that are at least equivalent to a statute. Given that operational surveillance concerns the constitutional rights and freedoms of individuals, and that at the same time it requires statutory regulation (see Article 89(1)(2) and Article 89(1)(5) of the Constitution), the said requirement will be fulfilled solely by international agreements ratified upon prior consent granted by statute.

3.3. Offences prosecuted on the basis of currently binding international agreements which belong to the category of agreements ratified upon prior consent granted by statute may at the same time be regarded as offences that are sufficiently serious for operational surveillance to be carried out. Thus, they do not lead to disproportionate interference in the right to the protection of privacy and in the privacy of communication, which are guaranteed by Articles 47 and 49 of the Constitution as well as by Article 8 of the European Convention on Human Rights.

4. In point 2 of the operative part of the judgment, the Constitutional Tribunal ruled that Article 27(1), in conjunction with Article 5(1)(2)(b), of the Act on the Internal Security Agency was inconsistent with Article 2, Article 47 and Article 49 of the Constitution in conjunction with Article 31(3) of the Constitution.

4.1. In the Ombudsman’s opinion, the challenged provisions were not sufficient to determine in which cases it was admissible to order operational surveillance, and that entailed that it was permissible to secretly obtain information on persons.

4.2. The Constitutional Tribunal agreed with the allegations put forward by the Ombudsman as to the unconstitutionality of Article 27(1) in conjunction with Article 5(1)(2)(b) of the Act on the Internal Security Agency. It also maintained its stance presented in the decision issued in the case S 4/10, in which it required that the legislator should precisely specify the types of offences against the essential economic interests of the state. As the legislator had used an imprecise term referring to unspecified “offences against the essential economic interests of the state”, the actual boundaries of secret interference in human rights and freedoms had not been set out in a way that was sufficiently specified by the legislator, and actually by the organs of public authority which were responsible for applying the law. The term included in the challenged provision had not occurred in the legal system. Thus, there were no possibilities – at least by reference to an analogical interpretation – as regards determining precisely which acts were meant in that context.

5. In point 3(a) of the operative part of the judgment, the Constitutional Tribunal stated that Article 27(1) in conjunction with Article 5(1)(2)(a) of the Act on the Internal Security Agency, insofar as it comprised the wording “and other offences that are against national security”, was consistent with Article 2, 47 and 49 of the Constitution in conjunction with Article 31(3) of the Constitution as well as Article 8 of the European Convention on Human Rights.

In the applicants’ opinion, the said provision made it possible to carry out operational surveillance with regard to unspecified offences that were against national security.

In in the view of the Constitutional Tribunal, the phrase ‘offences that are against national security’ had existed in the Polish legal system (inter alia in Article 112(1)(1) of the Penal Code). Also, it did not raise excessive difficulties as regards interpretation. Thus, an interest that was safeguarded by law had been specified, and consequently – also the nature of an offence with regard to which operational surveillance might be applied. Hence, there had been the fulfilment of minimum requirements which might be expected in the context of the provision that provided for the application of operational surveillance.

6. In point 3(b) of the operative part of the judgment, the Tribunal stated that Article 27(1) in conjunction with Article 5(1)(2)(c) of the Act on the Internal Security Agency was consistent with Articles 2, 47 and 49 of the Constitution in conjunction with Article 31(3) of the Constitution as well as with Article 8 of the European Convention on Human Rights.

The said provision authorised the application of operational surveillance for the purpose of examining, preventing or prosecuting the offences of corruption committed by public officials indicated in the said provision if the said acts might be against national security.

The Constitutional Tribunal did not agree with the allegations raised by the Ombudsman with regard to the said provision. The legislator sufficiently precisely specified the type of the offence – both in terms of the scope ratione personae and ratione materiae – with regard to which operational surveillance might be carried out. The term ‘corruption’ had been known in Polish legislation, and hence it did not raise any excessive interpretative difficulties.

7. In point 3(c) of the operative part of the judgment, the Tribunal deemed that Article 31(1) in conjunction with Article 5(1)(1)(a) of the Act on the Military Counter-Intelligence Service, insofar as it comprised the wording “as well as other statutes and international agreements”, was consistent with Articles 2, 47 and 49 of the Constitution in conjunction with Article 31(3) of the Constitution as well as with Article 8 of the European Convention on Human Rights.

The Constitutional Tribunal disagreed with the arguments presented by the Public Prosecutor-General, who had argued for the unconstitutionality of that provision.

 The legislator specified the scope ratione personae and ratione materiae of offences the detection and prosecution of which justified the ordering of operational surveillance. He specified in particular that the said offences were against specific legally protected interests, namely: offences against peace, offences against humanity and war offences. Specifying which prohibited acts fell under that category should not pose an excessive difficulty for citizens.

Offences against peace, offences against humanity and war offences posed the most serious threats to interests that were recognised in the Constitution. Hence, it was difficult to determine that the application of operational surveillance in that case constituted disproportionate interference in the rights and freedoms guaranteed  in Articles 47 and 49 of the Constitution. Also, the Tribunal did not see any arguments for the infringement of Article 8 of the European Convention on Human Rights.

8. In point 4 of the operative part of the judgment, the Tribunal adjudicated that Article 19(6)(3) of the Act on the Police, Article 9e(7)(3) of the Act on the Border Guard, Article 36c(4)(3) of the Act on Tax Audit, Article 31(7)(3) of the Act on the Military Police, Article 27(6)(3) of the Act on the Internal Security Agency, Article 17(5)(3) of the Act on the Central Anti-Corruption Bureau and Article 31(4)(3) of the Act on the Military Counter-Intelligence Service, construed in the way that an appropriate authority ordering surveillance indicated a technical means specified by law for obtaining information and evidence as well as for storing them in a given case, were consistent with Articles 2 and 47 in conjunction with Article 31(3) of the Constitution.

8.1. The challenged provisions regulated a way of carrying out operational surveillance by “technical means”. The Ombudsman raised the allegation that the statute did not specify what technical means might be applied and what kind of information on the individual might be obtained.

8.2. According to the Constitutional Tribunal, in the light of the principle of specificity of law and the principle that restrictions might be imposed on rights and freedoms only by statute, it was not absolutely necessary to regulate a closed catalogue of technical means of operational surveillance in a statute. In some cases, that might actually be detrimental to the efficiency and effectiveness of operational activities of given authorities, especially that the forms of transferring information were increasingly sophisticated. However, it was necessary that legal provisions should specify the types of technical means and an organ of public authority ordering operational surveillance should indicate which particular technical means might be applied in a given case.

At the same time, the Tribunal agreed with the argumentation presented by the Marshal of the Sejm as to the existence of sufficient guarantees that safeguarded against the arbitrary application of operational surveillance.

9. In point 5 of the operative part of the judgment, the Tribunal held that Article 20c(1) of the Act on the Police, Article 10b(1) of the Act on the Border Guard, Article 36b(1)(1) of the Act on Tax Audit, Article 30(1) of the Act on the Military Police, Article 28(1)(1) of the Act on the Internal Security Agency, Article 18(1)(1) of the Act on the Central Anti-Corruption Bureau, Article 32(1)(1) of the Act on the Military Counter-Intelligence Service and Article 75d(1) of the Act on Customs Service – insofar as they did not provide for independent supervision over granting access to communications data referred to in Article 180c and 180d of the Act of 16 July 2004 – Telecommunications Law (Journal of Laws ‑ Dz. U. of 2014, item 243, as amended) were inconsistent with Articles 47 and 49 in conjunction with Article 31(3) of the Constitution.

9.1. The said provisions regulated how communications data retained by telecommunications providers were obtained by police forces and state security services. The said forces might be granted access to the following three kinds of data: the identification of the subscriber, billing data and location data.

9.2. First of all, the Tribunal addressed the allegation of insufficient procedural guarantees related to the lack of external supervision over the process of disclosing communications data. Indeed, the said allegation remained the same with regard to all the provisions that had been challenged within that group.

9.3. Since the said data were obtained confidentially, without any knowledge or involvement of persons about whom the information was gathered, and with limited social supervision, the lack of independent supervision over that process posed a risk of abuse. The lack of such supervision may not only contribute to unjustified interference in the rights and freedoms of persons, but it may also pose a threat to the democratic mechanisms of the exercise of state authority.

The Constitutional Tribunal did not determine what procedure should be appropriate for gaining access to communications data, and in particular whether it was necessary to obtain authorisation for disclosure in the case of every kind of retained data referred to in Article 180c and Article 180d of the Telecommunications Law. Not all data of the same type trigger the same intensity of interference in human rights and freedoms. Also, the Tribunal did not determine whether, in every case, it was necessary to provide a priori supervision or if it was sufficient to carry out a posteriori supervision. However, in the current Polish legal order, there is no supervision whatsoever over the acquisition of data. Thus, the current provisions do not contain even minimal guarantees required by the Constitution.

Ruling that those provisions were unconstitutional made it redundant to refer to the other allegations related to the admissibility of the acquisition of data also for the purpose of preventing and prosecuting offences that would be socially detrimental to a relatively small extent; it resulted in the lack of the premiss of subsidiarity.

 10. In point 7 of the operative part of the judgment, the Tribunal deemed that Article 19 of the Act on the Police, Article 9e of the Act on the Border Guard, Article 36c of the Act on Tax Audit, Article 31 of the Act on the Military Police, Article 27 of the Act on the Internal Security Agency, Article 17 of the Act on Central Anti-Corruption Bureau as well as Article 31 of the Act on the Military Counter-Intelligence Service ‑ insofar as they did not provide for a guarantee that materials which contained information that was prohibited from being evidence should be subject to immediate, witnessed and recorded destruction, in the case where the court had not lifted professional confidentiality requirement – were inconsistent with Article 42(2), Article 47, Article 49, Article 51(2) and Article 54(1) in conjunction with Article 31(3) of the Constitution.

10.1. Making reference to the allegations raised by the Public Prosecutor-General, the Tribunal found no justification for singling out a category of persons, in an unconditional way, as regards the admissibility of operational and surveillance activities, including the acquisition of information in accordance with the procedure for operational supervision. Indeed, the Constitution did not provide for any exclusion within the scope ratione personae. However, that did not at all entail that obtaining information in accordance with such a procedure, from all persons to the same extent, and on the same terms was permissible. In the opinion of the Constitutional Tribunal, higher standards for assessing the constitutionality of the regulation on obtaining information about individuals pertained to messages provided within the scope of duties of persons with professions in which the public reposed confidence.

Thus, the legislator is obliged to much more intensely safeguard the confidentiality of messages provided to persons with professions in which the public repose confidence than this is the case with information transferred among individuals. Nevertheless, it is not entirely ruled out to enable police forces and state security services to obtain confidential information provided to persons with professions in which the public repose confidence. The exclusion of information which is subject to the confidentiality requirement as information that is absolutely inadmissible to be accessed in the course of operational surveillance would lead to considerable difficulties in collecting evidence for some types of offences, committed, for instance, with the use of the latest technology. Such differentiation may be carried out in a given case, by taking account of the circumstances of a specific case.

10.2.  In the Tribunal’s opinion, the statute was to ensure that procedural guarantees would be in place to eliminate unauthorised access to information by police forces and state security services; the said information should be safeguarded by the law, due to its content and the circumstances in which it was transferred. A certain model solution exists in the criminal procedure, as set out in Article 180(2) of the Polish Code of Criminal Procedure. The said provision authorises a court to lift the requirement of professional confidentiality, if this is necessary for the benefit of the administration of justice, whereas a given circumstance may not be indicated in a different way, i.e. without compromising professional confidentiality. A similar mechanism could be in place with regard to operational surveillance. At present, such mechanism does not exist. The legislator did not provide for an obligation to verify – under the supervision of a given court – data gathered in the course of operational surveillance that may contain information falling within the scope of professional confidentiality.

11. In point 7 of the operative part of the judgment, the Constitutional Tribunal deemed that Article 36b(5) of the Act on Tax Audit was consistent with Article 51(2) in conjunction with Article 31(3) of the Constitution.

In the Ombudsman’s opinion, in that provision the legislator specified grounds for deleting communications data that were obtained within a scope that proved to be too narrow by the tax intelligence service.

The assessment of the constitutionality of Article 36b(5) of the Act on Tax Audit may not be conducted in isolation from the entirety of regulations on obtaining and storing communications data by the tax intelligence service, and in particular from Article 36d(3) of the said Act. As it was aptly pointed out by the Marshal of the Sejm, the Act on Tax Audit contained a provision that required the deletion of redundant materials (Article 36d(3)). Thus, the mechanism which the Ombudsman regarded as non-existent did exist in the Polish legal system. Considering the scope of the allegations, the Tribunal could not assess in the case under examination whether it was constitutionally admissible to store data obtained for the purpose of other proceedings than those where the data had been acquired.

12. In point 8 of the operative part of the judgment, the Tribunal stated that Article 28 of the Act on the Internal Security Agency, Article 18 of the Act on the Central Anti-Corruption Bureau as well as Article 32 of the Act on the Military Counter-Intelligence, insofar as it did not provide for the deletion of data that were of no relevance to on-going proceedings, were inconsistent with Article 51(2) in conjunction with Article 31(3) of the Constitution.

The Constitutional Tribunal agreed with the allegations raised by the Ombudsman in the context of Article 28 of the Act on the Internal Security Agency, Article 18 of the Act on the Anti-Corruption Bureau as well as Article 32 of the Act on the Military Counter-Intelligence Service. A requirement for obtaining information about persons, including their communications data, is to device a procedure for immediate selection and deletion of materials that are redundant and inadmissible. Such a solution was to prevent the unauthorised use of information obtained legally by the organs of public authority and the storage thereof just in case if there happened to be a need to use it for other purposes in the future.

13. In point 9 of the operative part of the judgment, the Constitutional Tribunal stated that Article 75d(5) of the Act on the Border Guard, insofar as it permitted for retaining materials other than those containing information which was significant for proceedings in cases concerning tax misdemeanours or offences specified in chapter 9 of the Act of 10 September 1999 – the Penal Fiscal Code (Journal of Laws ‑ Dz. U. of 2013 item 186, as amended), was inconsistent with Article 51(4) of the Constitution.

13.1. Challenged Article 75d(5) of the Act on Customs Service obliges the Customs Service to delete communications data which are useful in proceedings conducted by the Customs Service. Yet, the Ombudsman argued that grounds for retaining obtained materials are defined too generally. Only those materials are destroyed which do not contain information that is significant for proceedings in cases concerning tax misdemeanours or offences.

13.2. The Constitutional Tribunal agreed with the Ombudsman’s reservations as regards Article 75d(5) of the Act on the Customs Service, although it assessed the constitutional issue slightly differently in the light of the higher-level norm indicated by the applicant, i.e. Article 51(4) of the Constitution. The provision of Article 75d(5) of the Act on the Customs Service, which regulated grounds for destroying materials which are unnecessary for carrying out proceedings, does not merely have a procedural character, but – to some degree – is also substantive in character. Indeed, it specifies statutory conditions for retaining information on individuals such as communications data. Only after taking account of Article 75d(1) and (5) can one evaluate whether certain information has been “obtained in a way that is contrary to statute”; and thus whether – the right expressed in Article 51(4) of the Constitution is applicable in that context. In other words, the assessment of legality of information gathered by the Customs Service in the light of the higher-level norm for the review indicated by the applicant may not be limited to the original purpose of gathering data (Article 75d(1)). It must also take account of the statutory grounds for data storage, regulated in Article 75d(5) of the Act on Customs Service.

Still, the Tribunal did not determine whether the use of obtained communications data for the prevention or detection of any tax misdemeanours or offences for which penalties were set out in the Penal Fiscal Code might be regarded as proportionate in the context of the mass and general character of gathered communications data. Indeed, the applicant did not present such an allegation, but limited himself to challenging procedural aspects. In particular, he did not indicate Article 31(3) of the Constitution as a higher-level norm for the review.

14. The Constitutional Tribunal recognised various grounds for discontinuing the review proceedings within the scope of other allegations.

First of all, this was necessary due to the partial withdrawal of an application by the Public  Prosecutor-General (with regard to Article 46(1) of the Press Law, indicated in the application of 21 June 2012, as a provision that should be read in conjunction).

Secondly, the Tribunal decided to discontinue the review proceedings as within the scope of the examination of the conformity of the following provisions: Article 31(1) in conjunction with Article 5(1)(1)(g) of the Act on the Military Counter-Intelligence Service and Article 31(1) in conjunction with Article 5(1)(9) of the Act on the Military Counter-Intelligence Service to Articles 2, 47, and 49 in conjunction with Article 31(3) of the Constitution as well as Article 8 of the European Convention on Human Rights. Within that scope, the Tribunal stated that the applicant had not presented justification for the allegation about the non-conformity of the said provisions with the indicated higher-level norms for the review.

Thirdly, the Tribunal discontinued the review proceedings on the grounds that issuing a judgment in that case was useless in the case of provisions which it had ruled to be inconsistent with at least one of the indicated higher-level norms for the review.

15. In point II of the operative part of the judgment, the Constitutional Tribunal decided to defer the date on which the unconstitutional provisions indicated in points 2, 5, 6 and 8 of the operative part of the judgment would cease to have effect. Those were the provisions on: operational surveillance in the Act on the Internal Security Agency with regard to ‘offences that were against the essential economic interests of the state’ (point 2), the obtaining of communications data (point 5), the protection of professional confidentiality in the course of operational surveillance (point 6) and the deletion of redundant communications data from the Act on the Internal Security Agency, the Act on the Military Counter-Intelligence and the Act on the Central Anti-Corruption Bureau (point 8).

This means – and is also confirmed by the previous jurisprudence of the Constitutional Tribunal – that during the period of deferral, the said provisions will still remain part of the legal system and may be applied by the organs of public authority. The further application thereof must take account of the fact that with regard to those provisions the presumption of constitutionality has been overruled.

Such a solution was selected due to the necessity to minimise the risk that there would be no effective mechanisms for fighting dangers, which would result in an increase in offences or at least in undermining the possibilities to prevent or detect them.

The hearing was presided over by the President of the Constitutional Tribunal, Judge Andrzej Rzepliński, and the Judge Rapporteur was Judge Marek Zubik.