Catalogue of data on the individual, collected via electronic means in the course of operational surveillance; data destruction requirements K 23/11
80/7/A/2014
JUDGMENT
of 30 July 2014
Ref. No. K 23/11*
In the Name of the Republic of Poland
The Constitutional Tribunal, in a bench composed of:
Andrzej Rzepliński – Presiding Judge, 2nd Judge Rapporteur
Stanisław Biernat
Maria Gintowt-Jankowicz
Mirosław Granat
Wojciech Hermeliński
Leon Kieres
Marek Kotlinowski
Teresa Liszcz
Małgorzata Pyziak-Szafnicka
Stanisław Rymar
Piotr Tuleja
Sławomira Wronkowska-Jaśkiewicz
Andrzej Wróbel
Marek Zubik – 1st Judge Rapporteur,
Grażyna Szałygo, Krzysztof Zalecki – Recording Clerks,
having considered – at the hearings on 1, 2 and 3 April as well as 30 July 2014, in the presence of the applicants, the Sejm and the Public Prosecutor-General – the following joined applications:
1) the application of 29 June 2011 submitted by the Polish Ombudsman to determine the conformity of:
a) Article 19(6)(3) of the Act of 6 April 1990 on the Police (Journal of Laws ‑ Dz. U. of 2007 No. 43, item 277, as amended);
b) Article 9e(7)(3) of the Act of 12 October 1990 on the Border Guard (Journal of Laws ‑ Dz. U. of 2011 No. 116, item 675);
c) Article 36c(4)(3) of the Act of 28 September 1991 on Fiscal Supervision (Journal of Laws ‑ Dz. U. of 2011 No. 41, item 214);
d) Article 31(7)(3) of the Act of 24 August 2001 on the Military Police and military security forces (Journal of Laws ‑ Dz. U. No. 123, item 1353, as amended);
e) Article 27(6)(3) of the Act of 24 May 2002 on the Internal Security Agency and the Foreign Intelligence Agency (Journal of Laws ‑ Dz. U. of 2010 No. 29, item 154, as amended);
f) Article 17(5)(3) of the Act of 9 June 2006 on the Central Anti-Corruption Bureau (Journal of Laws ‑ Dz. U. No. 104, item 708, as amended);
g) Article 31(4)(3) of the Act of 9 June 2006 on the Military Counter-Intelligence Service and the Military Intelligence Service (Journal of Laws ‑ Dz. U. No. 104, item 709, as amended);
– to Article 2 and Article 47 in conjunction with Article 31(3) of the Constitution;
2) the application of 1 August 2011 submitted by the Polish Ombudsman to determine the conformity of:
a) 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 Fiscal Supervision, Article 30(1) of the Act on the Military Police and military security forces, Article 28(1)(1) of the Act on the Internal Security Agency and the Foreign Intelligence Agency, Article 18(1)(1) of the Central Anti-Corruption Bureau Act as well as Article 32(1)(1) of the Act on the Military Counter-Intelligence Service and the Military Intelligence Service, to Article 49 in conjunction with Article 31(3) of the Constitution as well as to Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Journal of Laws ‑ Dz. U. of 1993 No. 61, item 284, as amended);
b) Article 36b(5) of the Act on Fiscal Supervision, Article 28 of the Act on the Internal Security Agency and the Foreign Intelligence Agency, Article 18 of the Central Anti-Corruption Bureau Act, Article 32 of the Act on the Military Counter-Intelligence Service and the Military Intelligence Service, insofar as the said provisions permit obtaining data referred to in Article 180c and Article 180d of the Telecommunications Act of 16 July 2004 (Journal of Laws ‑ Dz. U. No. 171, item 1800, as amended), but do not provide for deleting those data which contain no relevant information for given proceedings, to Article 51(2) in conjunction with Article 31(3) of the Constitution,
3) the application of 15 November 2011 submitted by the Polish Ombudsman to determine the conformity of:
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 refers to the wording “and other offences against national security”;
b) Article 27(1), in conjunction with Articles 5(1)(2)(b) and 5(1)(2)(c), of the Act on the Internal Security Agency and the Foreign Intelligence Agency;
– to Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution as well as to Article 8(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms;
4) the application of 7 March 2012 submitted by the Public Prosecutor-General to determine the conformity of:
a) Article 19(1)(8) of the Act on the Police;
b) Article 9e(1)(7) of the Act on the Border Guard;
c) Article 36c(1)(5) of the Act on Fiscal Supervision;
d) Article 31(1)(17) of the Act on the Military Police and military security forces;
e) Article 31(1), in conjunction with Article 5(1)(1)(a), of the Act on the Military Counter-Intelligence Service and the Military Intelligence Service, insofar as it refers to the wording “as well as other statutes and international agreements”;
f) Article 31(1), in conjunction with Article 5(1)(1)(g), of the Act on the Military Counter-Intelligence Service and the Military Intelligence Service, insofar as it refers to the wording “as well as offences other than those enumerated in points (a)-(f), which undermine the defence potential of the following: the state, the Armed Forces of the Republic of Poland, the organisational units of the Ministry of Defence, and foreign states that guarantee reciprocity”;
g) Article 31(1), in conjunction with Article 5(1)(9), of the Act on the Military Counter-Intelligence Service and the Military Intelligence Service;
– to Article 2, Article 47, Article 49 in conjunction with Article 31(3) of the Constitution as well as to Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
5) the application of 27 April 2012 submitted by the Polish Ombudsman to determine the conformity of:
a) Article 75d(1) of the Act of 27 August 2009 on the Customs Service (Journal of Laws ‑ Dz. U. No. 168, item 1323, as amended) to Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution;
b) Article 75d(5) of the Act on the Customs Service to Article 51(4) of the Constitution;
6) the application of 21 June 2012 submitted by the Public Prosecutor-General to determine the conformity of:
a) Article 20c(1) of the Act on the Police in conjunction with Article 212(1) and (2), Article 216(1) and (2), Article 217(1), Article 221, Article 278(1)-(3) and (5), Article 284(1)-(3), Article 288(1) and (2) as well as Article 290(1) of the Act of 6 June 1997 – the Penal Code (Journal of Laws ‑ Dz. U. No. 88, item 553, as amended); Article 45, Article 46(1), Article 49 and Article 49a of the Press Act of 26 January 1984 (Journal of Laws ‑ Dz. U. No. 5, item 24, as amended; hereinafter: the Press Act), Article 34(2), (3) and (4) of the Act of 16 April 2004 on Construction Products (Journal of Laws ‑ Dz. U. No. 92, item 881, as amended); Article 33 of the Act of 25 February 2011 on chemical substances and mixtures thereof (Journal of Laws ‑ Dz. U. No. 63, item 322), Article 77(2), (2a) and (3) of the Act of 11 March 2004 on protecting animal health and counteracting contagious animal diseases (Journal of Laws ‑ Dz. U. of 2008 No. 213, item 1342, as amended; hereinafter: the Animal Health Protection Act) and in conjunction with Article 52(2) and (4) of the Act of 13 October 1995 – the Hunting Law (Journal of Laws ‑ Dz. U. of 2005 No. 127, item 1066, as amended; hereinafter: the Hunting Act);
b) Article 10b(1) of the Act on the Border Guard in conjunction with Article 212(1) and (2), Article 216(1) and (2), Article 217(1), Article 221, Article 278(1)-(3) and (5), Article 284(1)-(3), Article 288(1) and (2) as well as Article 290(1) of the Penal Code, Article 45, Article 46(1), Article 49 and Article 49a of the Press Act, Article 34(2), (3) and (4) of the Act on Construction Products, Article 33 of the Act on chemical substances and mixtures thereof, Article 77(2), (2a) and (3) of the Animal Health Protection Act and in conjunction with Article 52(2) and (4) of the Hunting Act;
c) Article 30(1) of the Act on the Military Police and military security forces in conjunction with Article 212(1) and (2), Article 216(1) and (2), Article 217(1), Article 221, Article 278(1)-(3) and (5), Article 284(1)-(3), Article 288(1) and (2) as well as Article 290(1) of the Penal Code, Article 60(2) and (3), Article 61(1), Article 62(1), (3) and (4), Article 80(1) and (2), Article 93(2) and (3), Article 95(1); Article 108(2) and Article 109 of the Act of 10 September 1999 – the Penal Fiscal Code (Journal of Laws ‑ Dz. U. of 2007 No. 111, item 765, as amended), Article 45, Article 46(1), Article 49 and Article 49a of the Press Act, Article 34(2), (3) and (4) of the Act on Construction Products, Article 33 of the Act on chemical substances and mixtures thereof, Article 77(2), (2a) and (3) of the Animal Health Protection Act in conjunction with Article 52(2) and (4) of the Hunting Act;
d) Article 36b(1)(1) of the Act on Fiscal Supervision in conjunction with Article 60(2) and (3), Article 61(1), Article 62(1), (3) and (4), Article 80(1) and (2), Article 93(2) and (3), Article 95(1), Article 108(2) as well as Article 109 of the Penal Fiscal Code;
e) Article 36b(1)(1) in conjunction with Article 2(1)(12) of the Act on Fiscal Supervision, in conjunction with Article 85(4), Article 86(4), Article 87(4), Article 88(3), Article 89(3), Article 90(3), Article 91(4), Article 92(3), Article 94(3), Article 95(2) and Article 96(1) of the Penal Fiscal Code as well as in conjunction with Article 100(1) and Article 101(1) of the Act of 19 March 2004 – the Customs Law (Journal of Laws ‑ Dz. U. No. 68, item 622, as amended; hereinafter: the Customs Act);
f) Article 28(1)(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 refers to the wording “and other offences against national security”;
g) Article 28(1)(1) in conjunction with Article 5(1)(2)(b) and (c) of the Act on the Internal Security Agency and the Foreign Intelligence Agency;
h) Article 32(1)(1) in conjunction with Article 5(1)(1)(a) of the Act on the Military Counter-Intelligence Agency, insofar as it refers to the phrase “as well as other statutes and international agreements”;
i) Article 32(1)(1) in conjunction with Article 5(1)(1)(g) of the Act on the Military Counter-Intelligence Agency, insofar as it refers to the wording “as well as offences other than those enumerated in points (a)-(f), which undermine the defence potential of the following: the state, the Armed Forces of the Republic of Poland, the organisational units of the Ministry of Defence, and foreign states that guarantee reciprocity”;
j) Article 32(1)(1) in conjunction with Article 5(1)(9) of the Act on the Military Counter-Intelligence Service and the Military Intelligence Service;
k) Article 18(1)(1) in conjunction with Article 2(1)(2) of the Central Anti-Corruption Bureau Act in conjunction with Article 4, Article 12(3)-(6), Article 13 as well as Article 15 of the Act of 21 August 1997 on restrictions on the conduct of economic activity by persons performing public functions (Journal of Laws ‑ Dz. U. of 2006 No. 216, item 1584, of 2008 No. 223, item 1458 as well as of 2009 No. 178, item 1375);
l) Article 18(1)(1) in conjunction with Article 2(1)(5) of the Central Anti-Corruption Bureau Act in conjunction with Article 8(1) and (3), Article 10(1), (2), (5) and (6) of the Act on restrictions on the conduct of economic activity by persons performing public functions, Article 35(1) of the Act of 9 May 1996 on Sejm Deputies and Senators (Journal of Laws – Dz. U. of 2011 No. 7, item 29, as amended); Article 87(1) of the Act of 27 July 2001 ‑ the Law on the Organisational Structure of Common Courts (Journal of Laws – Dz. U. No. 98, item 1070, as amended; hereinafter: the Act on the Organisational Structure of Common Courts), Article 38 of the Act of 23 November 2002 on the Supreme Court (Journal of Laws ‑ Dz. U. No. 240, item 2052, as amended), Article 49a(1) of the Act of 20 June 1985 on the Public Prosecutor’s Office (Journal of Laws ‑ Dz. U. of 2011 No. 270, item 1599, as amended), Article 24h(1) of the Act of 8 March 1990 on the Self-Government of Communes (Journal of Laws ‑ Dz. U. of 2001 No. 142, item 1591, as amended), Article 25c(1) of the Act of 5 June 1998 on the Self-Government of Poviats (Journal of Laws ‑ Dz. U. of 2001 No. 142, item 1592, as amended) as well as in conjunction with Article 27c(1) of the Act of 5 June 1998 on the Self-Government of Voivodeships (Journal of Laws ‑ Dz. U. of 2001 No. 142, item 1590, as amended);
ł) Article 18(1)(1) in conjunction with Article 2(1)(3) of the Central Anti-Corruption Bureau Act in conjunction with Article 1(1) and (2) of the Act of 21 June 1990 on the return of profits gained unjustly at the expense of the State Treasury or other state legal entities (Journal of Laws ‑ Dz. U. No. 44, item 255 as amended);
m) Article 18(1)(1) in conjunction with Article 2(1)(4) of the Central Anti-Corruption Bureau Act in conjunction with Article 200 of the Act of 29 January 2004 – the Law on Public Procurement (Journal of Laws – Dz. U. of 2010 No. 113, item 759, as amended; hereinafter: the Public Procurement Act), Article 46(1), Article 75(1)-(4) and Article 110(1) of the Act of 2 July 2004 on the Freedom of Economic Activity (Journal of Laws ‑ Dz. U. of 2010 No. 220, item 1447, as amended), as well as in conjunction with Article 3(1), Article 20a(1)-(3), Article 3la, Article 36(1), Article 39(1) and Article 69e of the Act of 30 August 1996 on Commercialisation and Privatisation (Journal of Laws ‑ Dz. U. of 2002 No. 171, item 1397 as amended);
n) Article 18(1)(1) in conjunction with Article 2(1)(6) and Article 2(1)(7) of the Central Anti-Corruption Bureau Act;
o) Article 75d(1) in conjunction with Article 75d(5) of the Act on the Customs Service in conjunction with Article 108(2) and Article 109 of the Penal Fiscal Code;
– to Article 2, Article 47, Article 49 in conjunction with Article 31(3) of the Constitution as well as to Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
7) the application of 13 November 2012 submitted by the Public Prosecutor-General to determine the conformity of:
Article 19 of the Act on the Police, Article 9e of the Act on the Border Guard, Article 36c of the Act on Fiscal Supervision, Article 31 of the Act on the Military Police and military security forces, Article 27 of the Act on the Internal Security Agency and the Foreign Intelligence Agency, Article 17 of the Central Anti-Corruption Bureau Act, as well as Article 31 of the Act on the Military Counter-Intelligence Service and the Military Intelligence Service, insofar as the said provisions do not exclude – from the group of persons subjected to operational surveillance – persons from whom the obtaining of information protected by professional confidentiality that binds advocates, journalists, notaries public, legal advisers, tax advisers and medical practitioners is prohibited, when such information is sought as evidence, within the scope covered by prohibitions on evidence, to Article 2, Article 42(2), Article 47, Article 49, Article 51(2) and Article 54(1) in conjunction with Article 31(3) of the Constitution as well as to Article 6(3)(b) and (c), Article 8, and Article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms;
adjudicates as follows:
I
1)
a) Article 19(1)(8) of the Act of 6 April 1990 on the Police (Journal of Laws ‑ Dz. U. of 2011 No. 287, item 1687, of 2012 items 627, 664, 908, 951 and 1529, of 2013 items 628, 675, 1351, 1635 and 1650 as well as of 2014 items 24, 486, 502, 538 and 616);
b) Article 9e(1)(7) of the Act of 12 October 1990 on the Border Guard (Journal of Laws ‑ Dz. U. of 2011 No. 116, item 675, No. 117, item 677, No. 170, item 1015, No. 171, item 1016 and No. 230, item 1371, of 2012 items 627, 664, 769 and 951, of 2013 items 628, 675, 829, 1351 and 1650 as well as of 2014 items 486, 502, 616 and 619);
c) Article 36c(1)(5) of the Act of 28 September 1991 on Fiscal Supervision (Journal of Laws ‑ Dz. U. of 2011 No. 41, item 214, No. 53, item 273, No. 230, item 1371 and No. 240, item 1439, of 2012 items 362 and 1544, of 2013 items 628 and 1145 as well as of 2014, item 915);
d) Article 31(1)(17) of the Act of 24 August 2001 on the Military Police and military security forces (Journal of Laws ‑ Dz. U. of 2013 items 568 and 628) – construed in the way that they concern offences specified in a relevant Polish criminal-law statute and penalised on the basis of international agreements ratified with prior consent granted by statute – are consistent with Article 2, Article 47, Article 49 in conjunction with Article 31(3) of the Constitution as well as with Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950, amended by Protocols Nos. 3, 5 and 8 as well as supplemented by Protocol No. 2 (Journal of Laws ‑ Dz. U. of 1993 No. 61, item 284, of 1995 No. 36, items 175, 176 and 177, of 1998 No. 147, item 962, of 2001 No. 23, item 266, of 2003 No. 42, item 364 as well as 2010 No. 90, item 587);
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 (Journal of Laws ‑ Dz. U. of 2010 No. 29, item 154, No. 182, item 1228 and No. 238, item 1578, of 2011 No. 53, item 273, No. 84, item 455, No. 117, item 677 and No. 230, item 1371, of 2012 items 627 and 908, of 2013 items 628, 675 and 1351 as well as of 2014 items 502, 544 and 616) is 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 comprises the wording “and other offences against national security”;
b) Article 27(1), in conjunction with Article 5(1)(2)(c), of 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 (Journal of Laws ‑ Dz. U. of 2014, items 253 and 502), insofar as it comprises the wording “as well as other statutes and international agreements”
– are consistent with Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution as well as with 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 Fiscal Supervision;
d) Article 31(7)(3) of the Act on the Military Police and military security forces;
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 (Journal of Laws ‑ Dz. U. of 2012 items 621, 627 and 664, of 2013 items 628, 675 and 1351 as well as of 2014 items 502 and 616)
– construed in the way that in a given case a competent authority ordering operational surveillance shall indicate the type of a technical measure prescribed by law for obtaining information and evidence as well as for recording them – are 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 Fiscal Supervision;
d) Article 30(1) of the Act on the Military Police and military security forces;
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 Central Anti-Corruption Bureau Act;
h) Article 75d(1) of the Act of 27 August 2009 on the Customs Service (Journal of Laws ‑ Dz. U. of 2013 item 1404 as well as of 2014 item 486)
– insofar as they do not provide for independent supervision over the process of granting access to telecommunications data referred to in Article 180c and Article 180d of the Telecommunications Act of 16 July 2004 (Journal of Laws ‑ Dz. U. of 2014 item 243) – are 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 Fiscal Supervision;
d) Article 31 of the Act on the Military Police and military security forces;
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 Central Anti-Corruption Bureau Act;
– insofar as they do not provide for the guarantee of immediate, witnessed and recorded destruction of material that contains information prohibited from being used as evidence, with regard to which the court has not lifted the requirement of professional confidentiality or in the case of which the lifting of the requirement is inadmissible – are 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 Fiscal Supervision is 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 Central Anti-Corruption Bureau Act;
– insofar as they do not provide for the destruction of data that are irrelevant to given proceedings – are 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 permits retaining material other than that which contains information that is relevant to proceedings in cases concerning fiscal misdemeanours or offences specified in chapter 9 of the Act of 10 September 1999 – the Penal Fiscal Code, is inconsistent with Article 51(4) of the Constitution.
II
The provisions enumerated in part I, points 2, 5, 6 and 8, within the scope indicated therein, will cease to have effect after the lapse of 18 (eighteen) months from the date of the publication of this judgment in the Journal of Laws of the Republic of Poland.
Moreover, the Tribunal decides:
pursuant to Article 39(1) of the Constitutional Tribunal Act of 1 August 1997 (Journal of Laws - Dz. U. No. 102, item 643, of 2000 No. 48, item 552 and No. 53, item 638, of 2001 No. 98, item 1070, of 2005 No. 169, item 1417, of 2009 No. 56, item 459 and No. 178, item 1375, of 2010 No. 182, item 1228 and No. 197, item 1307 as well as of 2011 No. 112, item 654), to discontinue the proceedings as to the remainder.
STATEMENT OF REASONS
[…]
III
The Constitutional Tribunal has considered as follows:
1. The freedom of the person versus the protection of national security and public order in the digital age.
1.1. The status of the person in a democratic state ruled by law is based on respect for one’s inherent and inalienable dignity (Article 30 of the Constitution), as well as one’s freedom (autonomy) arising therefrom, i.e. the freedom to decide about oneself in accordance with one’s will (Article 31(1) and (2)). This is also clearly rendered in the Preamble to the Constitution, which states that all those who apply the provisions of the Constitution are to do so “paying respect to the inherent dignity of the person, his or her right to freedom (…) and [should regard] respect for these principles as the unshakeable foundation of the Republic of Poland”.
1.2. The constitution-maker assumed that there was a need to provide the legal protection of the person’s freedom in the broadest possible scope, as the said freedom is a natural attribute of the legal status of the individual. This clearly follows from Article 31(1) of the Constitution, pursuant to which the freedom of every person – irrespective of what realm of life it concerns ‑ shall receive legal protection. As it has been adopted in the jurisprudence of the Constitutional Tribunal, the freedom is protected both in its positive and negative aspects. “The positive aspect of ‘the individual’s freedom’ consists in the fact that the individual may freely determine his/her behaviour in a given realm, opting for such forms of activity which s/he deems most appropriate or refraining from undertaking any activity. The negative aspect of ‘the individual’s freedom’ consists in the legal obligation – of anyone ‑ to refrain from interference in the realm reserved for the individual. Such an obligation lies with the state and other entities, including self-governing organisations set up for persons holding professions in which the public repose confidence. Any departures from respecting ‘the negative aspect’ of constitutional freedoms are only possible in compliance with the principles, within the scope and in the form provided for in Article 31(3) of the Constitution, due to values enumerated there, and with the fulfilment of the requirement of proportionality of restrictions” (the judgment of the Constitutional Tribunal of 18 February 2004, ref. no. P 21/02, OTK ZU No. 2/A/2004, item 9, part III, point 4).
The constitutional protection of the person’s freedom primarily refers to the realm of his/her privacy. The constitution-maker establishes the privacy of the individual, not as a constitutionally assigned subjective right, but as a constitutionally protected freedom, with all the consequences arising therefrom. Above all, this implies the individual’s discretion to act as s/he wishes within the scope of that freedom, up to the limits set by statute. Only a clear statutory regulation may impose restrictions within the scope of certain actions that fall within the realm of a particular freedom. What is inadmissible is to make presumptions about the competence of public authorities as regards the scope of interference in the individual’s freedom. An immanent element of all constitutional freedoms of the person is the state’s obligation to have them respected and protected by law, as well as any interference in the said freedoms should be refrained from by the state and private parties (vide Article 31(2), first sentence, and Article 31(3) of the Constitution). The said standard refers to all constitutional freedoms of the individual, and in particular to personal freedoms of the individual which – apart from privacy – comprise inter alia: the freedom of communication (Article 49 of the Constitution), the inviolability of the home (Article 50 of the Constitution) or the broadly-construed informational self-determination of the individual (Article 51 of the Constitution).
1.3. Respect for and protection of privacy by public authorities as well as a general prohibition against interference in that realm are guaranteed by Article 47 of the Constitution. What complements those guarantees is Article 51 of the Constitution, which provides for the so-called informational self-determination. As it has already been stressed, the protection of privacy and of informational self-determination stems from the inherent and inalienable dignity of the person (Article 30 of the Constitution). As pointed out in the Tribunal’s previous jurisprudence, preserving the dignity of the person requires that the individual’s personal realm is respected, where s/he does not risk “being with others” or “sharing his/her feelings or experiences with others” (see the judgments of the Constitutional Tribunal of: 12 December 2005, ref. no. K 32/04, OTK ZU No. 11/A/2005, item 132, part III, point 3.2; 23 June 2009, ref. no. K 54/07, OTK ZU No. 6/A/2009, item 86, part III, point 5).
As it has been adopted in the jurisprudence, Article 47 and Article 51 of the Constitution safeguard the same constitutional value – the realm of privacy. Informational self-determination constitutes an essential component of the right to the protection of privacy, and it consists in having discretion when it comes to disclosing information about oneself to other individuals or entities, as well as in exercising control over that information, even if it is in possession of other individuals or entities (see the judgments of the Constitutional Tribunal of: 19 February 2002, ref. no. U 3/01, OTK ZU No. 1/A/2002, item 3; 20 November 2002, ref. no. K 41/02, OTK ZU No. 6/A/2002, item 83; 13 December 2011, ref. no. K 33/08, OTK ZU No. 10/A/2011, item 116). At the same time, in its previous jurisprudence, the Tribunal stresses that Article 51 of the Constitution establishes a special measure for the protection of the same values which are enshrined in Article 47 of the Constitution (see the judgment of the Constitutional Tribunal of 12 November 2002, ref. no. SK 40/01, OTK ZU No. 6/A/2002, item 81).
The Constitutional Tribunal has adjudicated a number of times on the conformity of statutory provisions to Article 51 of the Constitution, which establishes the informational self-determination of the individual, as well as Article 47 of the Constitution, which guarantees the right to the protection of privacy. In some cases, both above-mentioned provisions were indicated as higher-level norms for a given review. In such situations, the Tribunal usually examined the conformity of a given provision to those higher-level norms for the review within the scope of one allegation (see e.g. the judgments of the Constitutional Tribunal of: 19 May 1998, ref. no. U 5/97, OTK ZU No. 4/1998, item 46; 13 December 2011, ref. no. K 33/08).
What also corresponds to the protection of privacy and informational self-determination is the right to the protection of the privacy of communication, introduced in Article 49 of the Constitution. In the literature on the subject, it is sometimes indicated that the freedom of communication pertains rather to communication via technical means, and not to a face-to-face conversation in a given place, as the latter usually manifests the right to privacy (see P. Sarnecki, comment 3 on Article 49, [in:] Konstytucja Rzeczypospolitej Polskiej. Komentarz, Vol. III, L. Garlicki (ed.), Warszawa 2007, p. 3). However, the Constitutional Tribunal construes the freedom of communication in a broader sense, without juxtaposing it so strictly with the right to the protection of privacy (cf. the judgment of the Constitutional Tribunal of 12 December 2005, ref. no. K 32/04). Constitutional protection arising from Article 49 of the Constitution comprises the content of face-to-face communication as well as distant communication. According to the Tribunal, “what also falls under the right to privacy is the freedom of communication, which not only comprises the privacy of correspondence but also any types of interpersonal contacts” (the judgment of the Constitutional Tribunal of 20 June 2005, ref. no. K 4/04, OTK ZU No. 6/A/2005, item 64). From the point of view of the right to the protection of the privacy of communication (Article 49 of the Constitution), “the manner of communication is essential only as long as the application thereof, in given conditions (circumstances), deprives third parties that are not the addressees of given content of the possibility of making themselves familiar with the said content. Indeed, only then may one speak of the existence of certain ‘privacy’ that could be the subject of protection. Consequently, only within that meaning, the form of communication may in a particular case affect the scope of the right to the protection of the privacy of communication” (the judgment of the Constitutional Tribunal of 2 July 2007, ref. no. K 41/05, OTK ZU No. 7/A/2007, item 72, part III, point 5.2).
1.4. Taking the above into consideration, the Constitutional Tribunal deems that the constitutional protection arising from Article 47, Article 49 and Article 51(1) of the Constitution comprises all ways of exchanging messages, in every form of communication, regardless of the actual means of communication (e.g. conversations in person and via telephone, written correspondence, fax messages, text and multimedia messages, as well as electronic mail). The constitutional protection comprises not only the content of messages, but also all circumstances related to the process of communication, which include the personal data of the participants of the process, information on dialled telephone numbers, visited Internet websites, data that specify the duration and frequency of communication, or which make it possible to determine the location of the participants of communication, as well as also data about a given IP number or an IMEI number. The scope of the constitutionally guaranteed freedom of the person and his/her informational self-determination also 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 only private life or also professional life, including economic activity. Indeed, there is no such area of personal life which would not be subject to constitutional protection, or where the said protection would be intrinsically restricted. Thus, in each of those areas of personal life, the individual enjoys a constitutionally guaranteed freedom to provide and obtain information, as well as to disclose information about him/herself.
Furthermore, the Constitutional Tribunal draws attention to one more issue; namely, in a democratic state ruled by law, the organisation of social and public life must include a possibility that individuals may act within the public realm in an anonymous way. At least within the scope of exercising their freedoms, it is not generally necessary for individuals to give up their anonymity in their relations with the state or private parties. By contrast, the situation looks different as regards the exercise of subjective rights. Indeed, the exercise of the said rights requires action to be taken by the subject of a given right, usually for the purpose of verifying the granted right.
1.5. Technological development extends the realm in which the person functions. It opens up new and unknown possibilities of exercising constitutionally guaranteed rights and freedoms. New technologies in an unprecedented way make it possible to overcome the barriers of time and distance in communication, thus making it possible to transfer information on every topic in any form, regardless of a distance separating the participants of given communication. Moreover, the said technologies create new ways of acquiring goods and services or ways of deciding about the fulfilment of one’s needs. At the same time, they play a vital role when it comes to enhancing the security of persons and property, by permitting the monitoring of persons and places or the electronic surveillance thereof, thanks to which – regardless of unexpected events – it is possible to geographically locate the persons and property.
In the modern world, a special role is played by the Internet. It has ceased to be merely a medium for communicating and transferring data across long distances. Instead, it has become a multi-faceted tool for creating, storing and transferring data that are varied in character, and at the same time a tool which makes it possible for the individual to function in society.
The Constitutional Tribunal emphasises that although the Constitution does not refer to the functioning of the individual in the virtual space, the protection of individuals’ constitutional rights and freedoms with relation to the use of the Internet and other electronic means of distant communication in no way differs from protection that concerns the traditional forms of communication or other activity. Data transferred via the Internet may not be perceived as data that are put aside, or that exist as if on the margin of the constitutionally protected forms of the person’s activity. Therefore, there are no justified reasons that would permit separating the transfer of data or communication via the Internet from the realm of constitutional rights and freedoms. Due to the complexity of a phenomenon such as the Internet, the activity of individuals in that realm corresponds to the proper forms of constitutionally protected activity. Consequently, sending messages by electronic means (e.g. email) is subject to the same constitutional protection as the posting of a letter in the traditional paper form (Articles 47, 49, and 51). The provision of information to the counsel for the defence via the Internet or by other means of electronic communication is subject to the same guarantees as providing the same information in a face-to-face conversation (Article 42). The protection of intimacy in communication with persons who hold professions in which the public repose confidence remains the same, regardless of the form of communication (Article 47). The expression of opinions, as well as the collection and dissemination of information by electronic means are entirely subject to protection provided for in Article 54 of the Constitution. Similarly, the protection of the freedom of the press and of other means of social communication is the same, irrespective of the way of exercising that freedom (Article 14; Article 54). The scope of constitutional protection guaranteed to the freedom of economic activity (Articles 20 and 22) also comprises the carrying out of that activity via the Internet or by other means of electronic communication. The same also concerns the protection of the freedom to choose and to pursue one’s occupation (Article 65), the freedom of artistic creation and scientific research as well as dissemination of the fruits thereof, the freedom to teach and to enjoy the products of culture (Article 73) or the right to submit petitions, proposals and complaints to the organs of public authority (Article 63).
Therefore, the Internet should be perceived as one of the tools that make it possible to exercise subjective rights and freedoms, and not as a separate realm or a realm that escapes constitutional protection. In this state of affairs, the evaluation of provisions that permit interference in subjective rights and freedoms, in the context of individuals’ use of inter alia the Internet, should be carried out by considering the normative content of relevant provisions of the Constitution which guarantee the protection of fundamental rights. Such evaluation affects the limits of the freedom to interpret statutory provisions. This also pertains to regulations that refer to powers vested in the organs of the state whose task is to protect the security of the state. At the current stage of the development of the electronic forms of communication, it is not admissible ‑ in the Tribunal’s opinion ‑ to juxtapose the statutory protection of traditional correspondence with the other forms of correspondence transferred via telecommunications networks.
1.6. In the face of the increasing significance of new technologies, there is also a growing risk that they will be used to commit offences and to breach the law. Indeed, they may be used for the unlawful obtaining of data on the conduct of other citizens, including the content and forms of exchanged messages, as well as for the unlawful storing and processing of the said data, which may serve someone’s purposes. Moreover, they may constitute tools for committing specialised and sophisticated offences that pose a threat to various interests or they may serve as means of communication or collaboration between persons infringing the law. The said phenomenon is dangerous, since communication by means of new technologies and offences committed this way generally elude social control. In many cases, this hinders the identification of persons who breach the law, and thus the prevention and detection of such threats.
On the one hand, the development of technology has resulted in the emergence of new ways of committing “traditional” offences. The Internet and the means of distant communication are additional and specialised tools in the hands of offenders, which exist parallel to techniques that have been used so far. On the other hand, new and previously unknown types of offences have emerged, which can only be committed with the use of new technologies (the so-called cybercrime involving inter alia unauthorised access to computer data).
1.7. The Constitutional Tribunal assumes that the indicated characteristics of new technologies and the evaluation of threats that are related thereto justify entrusting specialised organs of public authority, such as police forces and state security services (vide Article 103(2) of the Constitution), with adequate powers, thanks to which they will be able to prevent offences and detect them, persecute offenders as well as provide information on threats to interests that are legally protected. Indeed, a democratic state ruled by law may not ignore the increasing significance of new technologies and, above all, the scale of the use thereof, at times also for the purpose of breaching the law. This requires that the said services should be vested with appropriate powers and have financial and organisational conditions that will make it possible to effectively counteract the breaches of law. The organs of public authority should have the legal and actual possibility to detect offences and activity aimed against the state or the constitutional organs thereof. They should also anticipate the actions of persons that breach the law, and thus prevent threats from occurring. In the context of global crime and terrorism or organised crime that spreads across borders, it is also vital to prevent threats the occurrence of which may cause irreparable damage to interests that are legally protected.
In the opinion of the Tribunal, failure to equip police forces and state security services with the latest technology, or even providing them with such technology, but within a scope that is insufficient, may entail that the state does not fulfil its constitutional duty to safeguard the independence and integrity of the territory of the Republic of Poland as well as the duty to ensure the security of the citizens (Article 5 of the Constitution) or may infringe the principle of efficiency in the work of public bodies (the Preamble to the Constitution). At times, this may infringe obligations set out in international agreements that bind Poland and which call for cooperation in the fight against international crime and terrorism.
By recognising the role of new information and communication technologies in collecting information about criminal activity, the legislator – who authorises police forces and state security services to secretly obtain information and evidence by means of new technologies – may not ignore the character of the infringements of rights caused by the use of the technologies or the scale of the phenomenon in the Polish context. Indeed, it is irrelevant whether similar solutions exist in other countries (see the judgment of the Constitutional Tribunal of 12 December 2005, ref. no. K 32/04, part III, point 3.1).
1.8. The Constitutional Tribunal draws attention to one more circumstance. The obligation imposed on the organs of the state to guarantee rights and freedoms implies not only a prohibition against excessive interference, including the secret obtaining of information about persons by the organs of the state, but it also has a broader scope. In the Tribunal’s opinion, what arises therefrom is the obligation on the part of the state to create conditions in which citizens may freely enjoy rights and freedoms that are guaranteed to them. A prerequisite for ensuring rights and freedoms is the sense of security in the state and the lack of threats to citizens. The attainment of that situation is possible inter alia by counteracting crime that may pose threats to the exercise of the freedom of the person, the right to ownership or the freedom of economic activity. On the other hand, in the opinion of the Tribunal, what correlates with the constitutional obligation of the state referred to in Article 5 of the Constitution is also citizens’ right to protection against external and internal threats, including terrorism and crime. Therefore, there is no “natural antinomy” that could not be overcome between guaranteeing security and public order and the protection of constitutional rights and freedoms. Sometimes the use of secret methods of operational activity makes it possible to limit the scale of crime, and this is reflected in the sense of the enhanced security of citizens and greater discretion over the exercise of guaranteed rights and freedoms.
1.9. One of the commonly accepted instruments for detecting threats and prosecuting the breaches of law are operational and investigative activities. They comprise inter alia operational surveillance (in particular, surveillance carried out with technical measures that make it possible to secretly obtain information and evidence transferred via telecommunications networks), as well as the collecting and processing of telecommunications data. Generally, the said activities are to prevent and counteract threats to a degree that has so far been unprecedented and impossible to achieve with the traditional methods of criminal analysis and intelligence work (for more, see part III, point 6 of this statement of reasons).
Firstly, the activities considerably facilitate the fight against traditional crime, as messages transferred via telecommunications networks in the form of telephone conversations, text or multimedia messages, and even metadata concerning the calls made (data on traffic and location) suffice to reconstruct the pattern of social behaviour in the case of individuals under surveillance, without any need to carry out operational activity with the involvement of many people, which would be considerably time-consuming and would require extreme caution to prevent the activity from being discovered. An analysis of material collected in the course of operational surveillance or an analysis of telecommunications data allows one to gain material that is of unique significance; such material makes it possible to precisely reconstruct decision-making processes in criminal groups and to identify links between persons that communicate with each other. Moreover, an analysis of such data makes it possible to immediately detect the perpetrators of threats posed to significant interests, such as the life or health of individuals. Also, one should bear in mind that new technologies used in the course of operational and investigative activities make it possible to record and subsequently reconstruct the content of voice, text or multimedia messages transferred via telecommunications networks. It is possible to use them to acquire information which has not so far been available to the organs of the state.
Secondly, new technologies are the only way to fight the cases of crime broadly referred to as ‘cybercrime’, i.e. offences committed with the use of the latest information and communication technologies. The application of operational and investigative activities not only facilitates operational work, but – in a majority of cases – it also constitutes the only way of preventing offences or detecting the perpetrators thereof.
Acknowledging differences between the use of new technologies for the purpose of committing traditional offences and the application of those technologies for committing what is generally categorised as cybercrime, it is necessary – in the opinion of the Tribunal – to work out a varied approach to the assessment of the proportionality of provisions that authorise the use of new technologies in order to prevent, counteract and detect any breaches of law, depending on the ways of using new technologies for purposes that are inconsistent with the law.
1.10. Making it possible for police forces and state security services to gain access to information about the content, time and forms of communication between individuals, as well as to monitor the lifestyle of those persons in any other way, inevitably results in a conflict with the right to the protection of privacy, the protection of the privacy of communication, informational self-determination, and in some cases (e.g. with audio or video surveillance devices installed in a flat) – with the inviolability of the home. Furthermore, the mere existence of provisions that authorise the organs of the executive branch of government to carry out such actions should be perceived as interference in the constitutionally protected status of persons and citizens, which stems from the inherent and inalienable dignity of persons. The legal admissibility of obtaining information about individuals, including matters that are significant from the point of view of their participation in public life, negatively affects their exercise of constitutional rights and freedoms. Regardless of particular, at times varied, forms of interference in the realm of private life, even the mere awareness of being under constant surveillance, carried out by public authorities, may discourage individuals from freely exercising constitutional rights and freedoms that are guaranteed to them. This may raise concern that the organs of public authority may in an unauthorised way store and use information regarding individuals. The said concern is particularly strong in Polish society, which for decades – during the communist regime – was under surveillance by secret security services, where the said services did not usually act in the good interest of their own country and its citizens.
In the light of the constitutional guarantees of the right to the protection of privacy, and also the protection of the privacy of communication, according to the Tribunal, the interference of public authorities in the said realm is not only the acquisition of data on the individual by the authorities for the first time. Indeed, the protection of the right to privacy and the protection of the privacy of communication cover the entire process of obtaining, collecting, storing and processing (which includes analysing and comparing) data on individuals. Therefore, the following should be regarded as different ways of interfering in the constitutionally protected status of the individual, which require separate constitutional legitimisation on a case-to-case basis: the obtaining of information inter alia on the content of messages exchanged by means of ICT networks in the course of operational surveillance; the imposition of an obligation to retain traffic and location data on the providers of telecommunications services; access to the said data; the subsequent verification thereof; or the sharing thereof with other organs of public authority (cf. the judgment of the Federal Constitutional Court of Germany of 2 March 2010, ref. no. 1 BvR 256/08, point 190).
1.11. Granting competence to secretly obtain information on individuals to police forces and state security services is in principle linked with the creation of data sets about persons that are subject to surveillance. The said data sets are varied in character and structure. They may be used for storing and analysing data collected by the said services in the course of carrying out their duties. They may also be the sets of data held by public and private entities which may subsequently be used by the said services for the purpose of carrying out tasks that have been assigned to them. In the Tribunal’s opinion, the legal possibility of storing data on individuals in relevant registers and data sets – if the said data are collected for the purpose of carrying out public tasks, including the prevention of, fight against or detection of crime – remains contradictory to the informational self-determination of the individual and his/her right to the protection of private life.
In this context, the Tribunal wishes to draw particular attention to the far-reaching and severe effects of the preventive retention of telecommunications data (the so-called traffic and location data). The mere awareness of the existence of registers storing traffic and location data concerning the users of ICT networks, in itself considerably infringes fundamental rights. Indeed, it creates an impression that one is under constant surveillance. Moreover, the acquisition of appropriate data on the individual by the functionaries of the said services takes place in a way that is virtually unnoticeable for the person concerned. Most of the time, the person does not even know that data concerning him/her have been obtained or retained, and how much police forces or state security services know about him/her, and in what situations the said information will be used.
On the basis of particular data, including telecommunications data, collected in the course of operational and investigative activities, there is no way of reconstructing the entire social activity of individuals; however, after a detailed analysis, it is possible to outline personal profiles of the participants of communication, and consequently to determine their lifestyles, membership in social or political organisations, contacts with such organisations, as well as personal preferences and tendencies (see e.g. the judgment of the CJEU of 8 April 2014, ref. no. C-293/12, point 27). Undoubtedly, providing police forces and state security services with the possibility of obtaining traffic and location data facilitates and expedites the fight against crime; yet, this considerably interferes in the realm of the privacy of the individual. Thus, provisions that regulate access to such data require justification in the light of the principle of proportionality.
The storing and processing of data in various automatic databases also pose other threats to the constitutional rights and freedoms of persons and citizens. Indeed, there is a risk of an information leak that may be caused by the actions of entities responsible for collecting the information as well as by the limited capacity of technical security. Since in the current legal system, telecommunications data specified in Article 180c and Article 180d of the Telecommunications Act of 16 July 2004 (Journal of Laws ‑ Dz. U. of 2014 item 243, as amended; hereinafter: the Telecommunications Act) are retained and stored in databases run and financed by the private providers of telecommunications services (Article 180d of the Telecommunications Act), i.e. entities that are under market pressure to keep their costs low, there is an increasing risk that the data will not be sufficiently safeguarded against unauthorised access by third parties.
1.12. Although not absolute, the constitutional right to the protection of privacy is of a special character in the system of constitutional rights and freedoms. As it has already been mentioned, this stems from the fact that the said value is deeply rooted in the dignity of the person. This is also confirmed by Article 233(1) of the Constitution, which clearly narrows down the legislator’s freedom to limit that right, even in times of martial law and states of emergency. Having regard to these general guidelines that arise from the placement and rank of the right to the protection of privacy among the constitutionally protected rights and freedoms, one should assess regulations that introduce exceptions to the protection of privacy (see the judgment of 20 March 2006, ref. no. K 17/05, OTK ZU No. 3/A/2006, item 30, part III, point 3).
Taking the above into account, obtaining information on the private life of individuals by the organs of public authority, especially when this is done in secret, must be limited to necessary situations which are admissible, in a democratic state ruled by law, only for the protection of constitutionally recognised values and in accordance with the principle of proportionality. Conditions for storing and processing those data by public authorities must be regulated by statute in a way that is most transparent and which excludes any arbitrariness and randomness of the application thereof.
Although operational and investigative activities are in conflict with the right to the protection of privacy, the freedom and privacy of communication or informational self-determination, they may be regarded as necessary in a democratic state ruled by law for the protection of its security or public order, or for the protection of the rights and freedoms of other persons. The admissibility of applying operational surveillance, as well as storing and processing telecommunications data, depends on adherence to constitutional requirements which are to protect individuals against misuse of law and excessive interference in the realm of their privacy, and thus to safeguard against any influence of police forces and state security services on the democratic mechanism of exercising authority in the state. In the view of the Constitutional Tribunal, the said requirements are the more severe the more given activities – in particular those carried out in secret and outside the scope of court proceedings – interfere in the constitutionally protected status of persons and citizens.
1.13. The Tribunal draws attention to one more issue which is of significance in the age of globalisation and international crime. The organs of public authority are obliged to protect the privacy of citizens also against threats that emerge outside the state itself. Consequently, the obligation of the state also comprises ensuring that the various aspects of the private life of citizens will be safeguarded against surveillance – which includes messages exchanged via telecommunications networks – conducted by foreign entities, and in particular foreign states. Indeed, an infringement of the right to the protection of privacy, guaranteed in Article 47 of the Constitution, may take place not only by the direct actions of the organs of the Polish state that acquire information on individuals in a secret way; this will also occur in a situation where no sufficient protection is granted to citizens by the state against any interference in that freedom caused by the actions of other entities.
The Constitutional Tribunal stresses that interference in the privacy or informational self-determination of individuals by public authorities is admissible only in accordance with rules set out in the Constitution, which fully covers the undertaking of international obligations by the authorities of the Republic of Poland.
1.14. Regardless of detailed formal and substantive requirements which need to be met by regulations concerning operational and investigative activities, which make it possible to secretly obtain information on individuals, it is not admissible in a democratic state ruled by law to register the entirety of individuals’ private lives, in particular in a way that makes it possible to reconstruct any manifestation of their life activity. This would violate the essence of the right to privacy, the privacy of communication and informational self-determination, which is absolutely prohibited in Article 31(3), second sentence, of the Constitution.
2. Selected jurisprudence of the European Court of Human Rights.
2.1. The protection of the private life of the individual in the system of the Council of Europe is guaranteed by Article 8(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950, amended by Protocols Nos. 3, 5 and 8 as well as supplemented by Protocol No. 2 (Journal of Laws ‑ Dz. U. of 1993 No. 61, item 284, of 1995 No. 36, items 175, 176 and 177, of 1998 No. 147, item 962, of 2001 No. 23, item 266, of 2003 No. 42, item 364 as well as 2010 No. 90, item 587; hereinafter: the Convention), pursuant to which “everyone has the right to respect for his private and family life, his home and his correspondence”. Conditions in which the said right may be restricted are set out in Article 8(2) of the Convention, in accordance with which no interference, by a public authority, with the exercise of the right expressed in Article 8(1) will be admissible “except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.
The provision of Article 8(1) of the Convention concerns a broadly understood right to respect for the private life of the individual, and thus constitutes the most general affirmation of the autonomy of the individual as regards shaping any aspects of the individual’s life and personality. The essence of that right consists in ensuring that every individual will have a private realm (autonomy) safeguarded against external interference, caused by the state as well as by private parties (see e.g. L. Garlicki, comment 21 on Article 8, [in:] Konwencja o Ochronie Praw Człowieka i Podstawowych Wolności. Tom I. Komentarz do artykułów 1–18, L. Garlicki (ed.), P. Hofmański, A. Wróbel, Warszawa 2010, p. 491).
The provision of Article 8(1) of the Convention indicates four basic realms that are subject to legal protection, namely: private life, family life, home and correspondance. The realms of privacy enumerated in that provision may not be taken in isolation, but overlap to a certain extent, thus creating a set of particular rights as well as corresponding negative and positive obligations that lie with public authorities. The purpose thereof is the protection of the dignity and freedom of the person (see L. Garlicki, ibid.).
In the light of the jurisprudence of the European Court of Human Rights (hereinafter: the ECHR), issues related to the state’s interference in the realm of privacy, which results from the application of measures for obtaining information about persons, were primarily regarded as interference in “private life” and “correspondence”. The term ‘private life’, used in Article 8(1), may not be reduced to the strictly personal and internal matters of the individual, but should also be understood in a social context as a possibility of developing contacts with others and interaction with the external world. As to ‘correspondence’, it comprises various ways of exchanging messages between indicated persons, both in writing as well as via a fax machine, electronic mail or other channels of communication within the scope of the Internet. At the same time, in the jurisprudence of the Strasbourg Court, it was not ruled out that the interception of telephone conversations constituted interference with the right to respect for the home of the individual (see the ruling of the ECHR of 6 September 1978 in the case of Klass and Others v. Germany, application no. 5029/71, para 41).
2.2. The European Court of Human Rights did not rule out the admissibility of the secret obtaining of information on persons by public authorities. In fact, the Court pointed out that such information was indispensable to guarantee the safety and protection of the institutions of a democratic state ruled by law against sophisticated forms of threats, such as espionage or terrorism (see inter alia the ruling of the ECHR of 6 September 1978 in the case of Klass and Others v. Germany, application no. 5029/71, para 48). Nevertheless, the forms of the secret obtaining of information about individuals, and even the binding force of the provisions that permit surveillance are in conflict with the individual’s right arising from Article 8 of the Convention. Indeed, such regulations affect the freedom of communication in the case of users of telecommunications services, regardless of the fact whether secret measures for obtaining information have or have not been used in the case of particular individuals (see the ECHR judgments of: 6 September 1978 in the case of Klass and Others v. Germany, para 41; 24 April 1990 in the case of Kruslin v. France, application no. 11801/85, para 26; 29 June 2006 in the case of Weber and Saravia v. Germany, application no. 54934/00, paras 77-79; 3 April 2007 in the case of Copland v. the United Kingdom, application no. 62617/00, paras 43-44; 1 July 2007 in the case of Liberty and Others v. the United Kingdom, application no. 58243/00, para 56; 28 June 2007 in the case of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, application no. 62540/00, para 69; 10 February 2009 in the case of Iordachi and Others v. Moldova, application no. 25198/02, para 34; 23 October 2012 in the case of Hadzhiev v. Bulgaria, application no. 22373/04, para 44; 4 December 2012 in the case of Lenev v. Bulgaria, application no. 41452/07, para 144).
2.3. In the context of cases considered by the ECHR, the problem of interference in the right to respect for private life and correspondence, expressed in Article 8(1) of the Convention, with relation to the application of secret surveillance measures, most frequently arose from the tapping of land-line and mobile telephones (the interception of telephone conversations, conversations in rooms). The ECHR has stated a number of times that the secret interception of conversations constitutes interference in the right expressed in Article 8(1) of the Convention (see the ECHR judgments of: 6 September 1978 in the case of Klass and Others v. Germany, para 41; 16 February 2000 in the case of Amann v. Switzerland, application no. 27798/95, para 56; 10 February 2009 in the case of Iordachi and Others v. Moldova, application no. 25198/02, para 29; 27 October 2012 in the case of Savovi v. Bulgaria, application no. 7222/05, para 52; 25 June 2013 in the case of Valentino Acatrinei v. Rumunia, application no. 18540/04, paras 57-58). The application of audio surveillance devices infringes the rights of all those persons who use a tapped phone or are in a room where tapping devices have been installed, even if those persons themselves are not under surveillance (see the ECHR judgments of: 24 April 1990 in the case of Kruslin v. France, para 26; 25 September 2001 in the case of P. G. and J. H. v. the United Kingdom, application no. 44787/98, paras 37-38). What has also been deemed as interference in the right guaranteed in Article 8 of the Convention is the use of a tapping device on a person for the purpose of recording conversations that s/he has with others (see the ECHR judgment of 1 March 2007 in the case of Heglas v. the Czech Republic, application no. 5935/02).
2.3.1. Protection arising from Article 8(1) of the Convention is not limited to telephone conversations (and other forms of exchanging information, such as postal services, fax messages or email), but it also covers information concerning the dates and duration of telephone conversations, as well as data on incoming and outcoming calls, i.e. the so-called telephone billing data. The said data constitute an integral element in communications made by telephone (see e.g. the ECHR judgments of: 2 August 1984 in the case of Malone v. the United Kingdom, application no. 8691/79, paras 83-85; 25 September 2001 in the case of P. G. and J. H. v. the United Kingdom, para 42; 1 March 2007 in the case of Heglas v. the Czech Republic, paras 60-61; 3 April 2007 in the case of Copland v. the United Kingdom, paras 43-44), and the obtaining thereof must, in principle, be regarded as interference in the right expressed in Article 8(1) of the Convention. In the judgment in the case of Malone v. the United Kingdom, the ECHR stressed that the obtaining of the telephone billing data might not be deemed tantamount to the interception of telephone conversations; however, the disclosure of such data to the police without the subscriber’s consent should be perceived as equivalent to interference in the right guaranteed in Article 8(1) of the Convention (para 84 of the said judgment). A similar stance was held by the ECHR in the case of Copland v. the United Kingdom, where the Court considered the case of a female employee of a college (the case concerned the monitoring of her work telephone and computer by the employer). The ECHR deemed that collecting and storing personal information on the applicant without her knowledge, which was related to her use of work telephone, electronic mail or the Internet, constituted interference with the right specified in Article 8(1) of the Convention, even if the above data could be legally obtained on the basis of an analysis of telephone bills (see paras 43-44 of the said judgment). By contrast, in the judgment in the case of P. G. and J. H. v. the United Kingdom, the ECHR pointed out that not in every case the obtaining of telephone billing data constituted a violation of Article 8(1) of the Convention and therefore it should not be regarded as tantamount to the interception of conversations. In the opinion of the ECHR, what did not constitute an infringement of Article 8 of the Convention was the use of telephone billing data for invoice purposes by the providers of telecommunications services or networks (see para 42 of the said judgment).
2.3.2. Interference in the right to respect for private life and correspondence is caused not only by secret surveillance measures used against certain individuals, but also by the strategic monitoring of calls and the obtaining of personal data of individuals that communicate with each other. The issue was examined in the case of Weber and Saravia v. Germany, in which the applicants challenged the German provisions on the strategic monitoring of calls made via telecommunications networks by recording telephone conversations of an unspecified number of interlocutors, and then identifying information contained in the conversations by means of key words, which could potentially help to identify perpetrators of offences or any plans to commit offences. In the view of the ECHR, this was the case of interference in the secrecy of telecommunications, safeguarded by Article 8 of the Convention (see para 76 of the said judgment), although the interference met all the requirements of its admissibility that arise from the Convention. The ECHR agreed with the view presented by the Federal Constitutional Court of Germany, and confirmed that, also in the light of the Convention, every transfer of retained data and its use by other state security services for the purpose of instituting and carrying out criminal proceedings constituted further separate interference in the right guaranteed in Article 8 of the Convention (para 79 of the said judgment).
2.3.3. In the light of the jurisprudence of the ECHR, what will also constitute interference in the privacy of individuals is the use of various special means of surveillance by the organs of public authority, such as technical devices which make it possible inter alia to register sounds and images, including taking photos and making videos (see, primarily – in the cases concerning Bulgarian provisions – the ECHR judgments of: 28 June 2007 in the case of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria ; 23 October 2012 in the case of Hadzhiev v. Bulgaria)
2.3.4. Interference in the right guaranteed in Article 8 of the Convention is also the application of measures for the secret monitoring of the individual in public places. In the judgment of 2 September 2010, in the case Uzun v. Germany, application no. 35623/05, the ECHR assessed the admissibility of installing a GPS device in a car that belonged to a third party – an accomplice of the applicant. Information collected that way was then used in criminal proceedings as evidence of offences of which the applicant had been accused. Although, in the end, the ECHR did not rule that Article 8 of the Convention had been infringed, considering procedural guarantees in the German legal system to be sufficient, it did point out that surveillance carried out by means of a GPS device in its nature differed from the other forms of video or audio surveillance. Indeed, it was to record the movement of individuals in public places, which were accessible to anyone. The obtaining of information by applying that measure was systematic in character, allowed for the precise determination of the patterns of mobility, and facilitated the gathering of evidence without any risk of exposure. The ECHR drew attention to the fact that such systematic collection and storage of data might be regarded as interference in the right expressed in Article 8(1) of the Convention.
2.3.5. In the light of the jurisprudence of the ECHR, interference in the individual’s realm of privacy also comprises the collection and storage of data on individuals by various state security services, regardless of the way in which the data have been collected (see the ECHR judgments of: 4 May 2000 in the case of Rotaru v. Romania, application no. 28341/95, paras 43-44; and 2 September 2010 in the case of Uzun v. Germany, para 46). The ECHR has emphasised that interference with the right guaranteed in Article 8 of the Convention takes place when data on individuals are collected, regardless of the way in which the said data will be used in the future.
2.4. Taking the above into consideration, the ECHR has formulated requirements that must be met by regulations on surveillance if the said regulations are to be deemed consistent with Article 8 of the Convention. The said jurisprudence may be considered to be sufficiently settled and to constitute a certain minimum standard that must be observed in the Member States of the Council of Europe. It should be stressed that standards that have been developed in the ECHR jurisprudence with regard to particular types of the secret obtaining of information are varied. The ECHR held that stricter standards should apply to regulations on the surveillance of telecommunications – which implies a broadly-defined interception of images and sounds – than in the case of surveillance via GPS of movements in public places (see the ECHR judgment of 2 September 2010 in the case of Uzun v. Germany, para 66). According to the ECHR, surveillance via GPS should be regarded as less intrusive interference with the private life of a given person than the interception of his/her telephone conversations, which may include intimate information.
2.4.1. Above all, the state’s interference in the individual’s realm of privacy must have a sufficient basis in the binding law. At the same time, the law needs to meet qualitative criteria, i.e. it has to be accessible and predictable for individuals. However, this does not entail – as stressed by the ECHR – that the individual would be able to predict the exact moment of interference in his/her right or freedom. Still, domestic law needs to be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any surveillance measures (see the ECHR judgment of 29 June 2006 in the case Weber and Saravia v. Germany, para 93 and the jurisprudence cited therein). This is even more important if the obtaining of information on individuals is carried out in secret and by means of sophisticated technology (ibid.). The sufficient clarity of such legal regulation is to give the individual adequate protection against arbitrary interference on the part of public authorities, which is generally not open to scrutiny by the public (para 94 of the said judgment).
2.4.2. In the jurisprudence concerning the interception of communications and the secret acquisition of communications data, the ECHR has developed the following minimum safeguards, arising from the Convention, that should be set out in domestic law:
- the nature of offences that give rise to the secret surveillance of individuals; yet, it does not suffice when the legislator indicates that offences are serious, even if he defines the term by statute. In Iordachi and Others v. Moldova, the ECHR stated that there had been a violation of Article 8 of the Convention, since the Moldovan Criminal Code provided for the interception of telephone communications inter alia for the purpose of preventing serious, very serious and exceptionally serious offences, i.e. offences which are punishable with imprisonment of up to fifteen years or more. According to the provided statistics, the said surveillance might be ordered with regard to no less than approximately 60% of offences provided for in the Moldovan Criminal Code (para 44 of the said judgment). Also, the Moldovan law did not specify grounds for ordering the interception of telephone communications, which were “national security”, “public order”, “protection of health”, “protection of morals”, “protection of the rights and interests of others”, “interests of (...) the economic situation of the country” or “maintenance of legal order” (para 46 of the said judgment). The ECHR held that such a solution was insufficient as regards “the quality of the law” concerning interference. By contrast, the ECHR stated that there had been no violation of Article 8 of the Convention by German provisions on the strategic monitoring of telecommunications. They mentioned 6 kinds of most serious offences precisely defined in domestic law, namely: an armed attack on the Federal Republic of Germany; the commission of international terrorist attacks in the Federal Republic of Germany; international arms trafficking within the meaning of the Control of Weapons of War Act and prohibited external trade in goods, data‑processing programmes and technologies in cases of considerable importance; the illegal importation of drugs in substantial quantities into the territory of the Federal Republic of Germany; the counterfeiting of money (Geldfälschung) committed abroad; as well as the laundering of money (see paras 27 and 96 of the ECHR judgment in the case of Weber and Saravia v. Germany). In most cases examined by the ECHR, secret surveillance measures were applied by state authorities with regard to offences of considerable gravity (e.g. trade in drugs – the ECHR judgments of: 22 October 2002 in the case of Taylor-Sabori v. the United Kingdom, application no. 47114/99; 12 May 2000 in the case of Khan v. the United Kingdom, application no. 35394/97; the theft of property of about EUR 9000 – in the case of Heglas v. the Czech Republic; participation in bomb attacks and involvement in a terrorist organisation – in the case of Uzun v. Germany);
- the type of a secret surveillance measure which must be specified by law at the moment of the use thereof (see e.g. the judgment in the case of Heglas v. the Czech Republic, in which the ECHR ruled that there had been a violation of Article 8 of the Convention, for at the moment of ordering a surveillance device to be placed on a certain person, such a measure had not been provided for by the law that had been in force at that time). Furthermore, the ECHR examined not only the content of domestic provisions, but also the application thereof by courts. In Uzun v. Germany, the ECHR did not deem that there had been a violation of Article 8 of the Convention, although the German law did not expressly provide for the use of GPS devices for the secret surveillance of individuals. The ECHR stated that the domestic courts had confirmed that the term “other special technical means intended for the purpose of surveillance” was sufficiently clear and covered surveillance via GPS. In Taylor-Sabori v. the United Kingdom, which concerned the use of a “clone” of the applicant’s pager that allowed the police to intercept messages sent to him, the ECHR held that at the time that was relevant in the said case there had existed no statutory system to regulate the interception of pager messages transmitted via a private telecommunication system (para 19 of the said judgment);
- the category of persons liable to be subjected to secret surveillance; in particular, emphasis was placed on the protection of third parties, i.e. persons in whose case the content of communications was intercepted “fortuitously” or who were “necessary participants” of conversations with a person subjected to telephone tapping. In the judgment in the case of Amann v. Switzerland, the ECHR pointed out that although the Swiss Federal Criminal Procedure Act defined what persons might be subjected to secret surveillance, it did not specify the precautions which should be taken with regard to persons monitored “fortuitously” as “necessary participants” in telephone conversations recorded by the authorities pursuant to the said Act (para 61 of the judgment). This was not “in accordance with the law” within the meaning of Article 8 of the Convention. By contrast, in Iordachi and Others v. Moldova, the Moldovan Code of Criminal Procedure permitted the interception of telephone conversations of a suspect, a defendant or – which raised the ECHR’s reservations – “other person involved in a criminal offence”. However, the Code gave no explanation as to who exactly fell within the said category. Also, in that case, according to the ECHR, this was not “in accordance with the law” within the meaning of Article 8 of the Convention.
- a limit on the duration of secret surveillance which is to be specified and fixed. In the case of Uzun v. Germany, which concerned inter alia a limit on the duration of monitoring via GPS, the ECHR stated that although at the time of surveillance the binding law had not provided for a fixed statutory limit on the duration of such surveillance, secret surveillance had been reviewed by the domestic courts in terms of its proportionality in given circumstances (para 69 of the judgment).
- a procedure for granting permission for the use of a secret surveillance measure, which must be ex ante permission, needs to be in writing and may not be limited to only formal matters. The permission should be granted by a competent authority that is independent and external in relation to the executive – it would be best if this were a court. However, it is not proper if the said authority is a prosecutor, since this does not satisfy the requirement of independence from the executive (see the ECHR judgment of 26 April 2007 in the case of Dumitru Popescu v. Romunia, application no. 71525/01, para 71). An ex post facto review, which – in criminal proceedings against a person concerned – allows a court to prohibit material obtained in the course of secret surveillance from being used as evidence at the trial, only suffices with regard to the monitoring of individuals in public places, which was pointed out by the ECHR in the context of surveillance via GPS in the case of Uzun v. Germany (para 71 of the judgment).
- a procedure for examining, using and storing the data obtained, to be followed by an authority that is external and independent in relation to surveillance authorities, as well as circumstances under which recordings must be erased or destroyed. Domestic law is to provide for precautions that need to be taken when communicating the data to other parties, which should rule out inter alia the transfer of material that is selected in an arbitrary way or is incomplete. These matters were pointed out in the case of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria. The Bulgarian law did not meet the Convention criteria of the ‘quality of law’, as it did not provide for an ex post facto review of the procedure for the use of secret surveillance or such a review of the handling of material obtained in the course of surveillance; it did not sufficiently specify the way in which the obtained material was to be verified, maintained intact or destroyed; nor did the law grant powers to an independent authority to examine and review the functioning of the secret obtaining of information in the state. In the view of the ECHR, the Minister for Internal Affairs might not be regarded as an independent authority and as one that meets the requirements set out in the Convention (paras 85-88 of the said judgement);
- an obligation to notify a person whose data have been obtained secretly and circumstances in which such notification will not be given; however, the person should be notified when this is without prejudice to the aim of the surveillance. In some situations, it is also possible to refrain from ex post notification.
2.4.3. In the light of the jurisprudence of the ECHR, any regulation that authorises the secret obtaining of information must be necessary and serve the protection of values defined in Article 8(2) of the Convention. Interestingly, there are relatively few cases in which the ECHR assessed national law in the light of the principle of proportionality, as – in a vast majority of cases – examination was not continued when it was recognised that the Convention had been infringed for formal reasons, due to the insufficient quality of legal regulation.
In those cases where the ECHR examined substantive requirements set out in Article 8(2) of the Convention, the Court assessed whether grounds for the ordering of secret surveillance were concurrent with the purposes provided in that provision, and whether – in the circumstances of a specific case – the secret obtaining of information was subsidiary in character and lasted for a relatively short period (see e.g. the ECHR judgments of: 29 June 2006 in the case of Weber and Saravia v. Germany, para 103 et seq.; 2 September 2010 in the case of Uzun v. Germany, para 75 et seq.).
3. The retention of telecommunications data in the jurisprudence of the Court of Justice of the European Union and selected constitutional courts of EU Member States
3.1. The activities of obtaining and storing telecommunications data in EU Member States were regulated by the Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ L 105, 13.4.2006, p. 54; hereinafter: the Data Retention Directive 2006/24/EC or the Directive). The Directive was adopted to harmonise Member States’ provisions concerning the obligations of the providers of publicly available electronic communications services or of public communications networks (also referred to as: the providers of telecommunications services or networks) with respect to the retention of traffic and location data which are generated or processed by them, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law (Article 1 of the Directive). The Directive did not address issues related to the retention and disclosure of the content of communication via ICT networks. Pursuant to its Article 6, data were to be retained for periods of not less than six months and not more than two years from the date of the communication.
Although in the present case, the applicants have not directly challenged the obligation imposed on the providers of telecommunications services to retain the said data for a statutorily specified period, views formulated in the jurisprudence of constitutional courts reflect a universal European standard within the scope of collecting and processing data on the individual by public authorities, and thus they merit special attention.
3.2. The provisions of the Directive constituted the subject of judicial review by the Court of Justice of the European Union, inter alia in the judgment of 8 April 2014 in the joined cases of the High Court (Ireland) and the Verfassungsgerichtshof (Austria) (C‑293/12). In the said judgment, the Court ruled that the Data Retention Directive 2006/24/EC was invalid due to its infringement of Article 7 (respect for private and family life) and Article 8 (the protection of personal data) of the Charter of Fundamental Rights of the European Union (OJ C 303, 14.12.2007, p. 1; hereinafter: the Charter).
3.2.1. The Court of Justice held that the Data Retention Directive 2006/24/EC constituted serious interference with the fundamental rights guaranteed in Articles 7 and 8 of the Charter, but it did not adversely affect the essence of those rights.
As the CJEU explained, due to the significance of means of electronic communication in the modern world, data retained on the basis of the said Directive provided national authorities with additional possibilities to shed light on serious offences. Thus, the data constituted a valuable tool for criminal investigations. According to the CJEU, the retention of such data may be considered to be appropriate for attaining the objective pursued by the Directive. Moreover, the fight against serious crime, in particular against organised crime and terrorism, was indeed of the utmost importance in order to ensure public security, and the effectiveness of the said fight might depend, to a great extent, on the use of modern investigation techniques. In the view of the Court, the material objective of the Directive was to contribute to the fight against serious crime, and thus it fell within the ambit of the general interest of the EU.
In the context of the principle of proportionality, the Court questioned the lack of any differentiation, limitation or exception with regard to the retention of the said data. The provisions of the Directive were applicable even to persons with regard to whom there was no evidence that their behaviour could be linked, even indirectly or remotely, to serious offences. Moreover, the Directive did not provide for any exceptions within the scope ratione personae, and thus it applied even to persons whose communication was safeguarded by the requirement of professional confidentiality in national law. The Directive did not require from the organs of the state to show a relation between data which were to be retained and a threat to public security. In particular, it was not limited to the retention of data that concerned a certain geographical region or a group of persons who might, in any way, be linked with a serious offence, or to data which could, for other reasons, play a role in the prevention, detection or prosecution of serious offences. The Directive did not specify an objective criterion which would guarantee that competent national authorities would have access to data and could use them only for the purpose of preventing, detecting and prosecuting offences which – due to the scope and seriousness of interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter – could be regarded as sufficiently serious to justify such interference. In the view of the CJEU, the mere reference to the category of ‘serious offences’, defined in the national legislation of EU Member States, was insufficient from the point of view of the principle of proportionality. Also, the Directive did not provide for procedural guarantees that could prevent misuse. There was no requirement of ex ante permission granted by a court or another independent authority for the disclosure or use of telecommunications data.
Consequently, the Court of Justice stated that the Data Retention Directive 2006/24/EC did not lay down clear and precise rules governing the extent of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter.
3.2.2. Although in the doctrine there are discrepancies in evaluation as regards the effects of a judgment that declares an act of secondary legislation to be invalid in the course of proceedings instituted by reference for a preliminary ruling, it is deemed that the said effects are comparable to the determination of invalidity in accordance with the procedure under Article 263 of the TFEU (see A. Grzelak, “Granica między skuteczną walką z przestępczością a prawem do prywatności i do ochrony danych osobowych. Glosa do wyroku TS z dnia 8 kwietnia 2014 r., C-293/12 i C-594/12”, Europejski Przegląd Sądowy 7/2014, pp. 51-52).
Thus, the Constitutional Tribunal assumes that the CJEU judgment of 8 April 2014 in the case C-293/12 is final in character. It binds not only the EU institutions and bodies, but also all the organs of EU Member States, including courts and authorities that apply provisions on access to telecommunications data. Due to the fact that the CJEU did not mention a time-limit for the effects of the said judgment, it should be assumed that, within the scope of the invalidity of the said Directive, the judgment has an ex tunc effect.
3.2.3. Statutory provisions challenged in the present case, which regulate grounds for granting access to telecommunications data to competent police forces and state security services, do not constitute the direct implementation of the Data Retention Directive 2006/24/EC. The CJEU judgment of 8 April 2014 in the case C-293/12 does not directly bind the Constitutional Tribunal in the procedure for the constitutional review of national provisions. However, given the fact that there is a functional relation between the challenged provisions and the said Directive, and that the level of protection of privacy in the context of the storing and processing of personal data is – at least – not lower than the level guaranteed in Articles 7 and 8 of the Charter, the Constitutional Tribunal deems it useful to consider the said judgment as a background for its own decision in the constitutional review of national provisions on granting access to telecommunications data to police forces and state security services.
3.2.4. The statutory provisions on granting access to telecommunications data to police forces and state security services are indirectly related to the obligation to implement the provisions of EU law (i.e. the Data Retention Directive 2006/24/EC).
As indicated in the previous jurisprudence, the competence to review the constitutionality of normative acts, provided for in Article 188(1)-(3), Article 79(1) as well as Article 193 of the Constitution, also refers to a situation where the allegation of unconstitutionality concerns a statute aimed at ensuring the effectiveness of EU law in the Polish legal order (see the judgments of the Constitutional Tribunal of: 27 April 2005, ref. no. P 1/05, OTK ZU No. 4/A/2005, item 42, part III, point 2.4; 3 December 2009, ref. no. Kp 8/09, OTK ZU No. 11/A/2009, item 164, part III, point 4). The said view is also accepted by the Constitutional Tribunal in the present case. Both at the time when a directive is binding as well as after the repeal of the directive, the Tribunal has jurisdiction to review the constitutionality of the binding provisions of Polish law which are related to the implementation of EU law.
3.3. National provisions implementing the Data Retention Directive 2006/24/EC and provisions regulating the disclosure of such data to the organs of public authority have so far been reviewed inter alia by the constitutional courts of some EU Member States.
3.4. In the judgment of 11 December 2008 (ref. no. 13627), the Supreme Administrative Court of Bulgaria adjudicated on the unconstitutionality of Article 5 of the Regulation No. 40 of 7 January 2008 (which had implemented the Data Retention Directive 2006/24/EC into the Bulgarian legal order), insofar as it concerned grounds for granting access to data that were subject to retention by the providers of publicly available telecommunications services. The provision of Article 5(1) of the Regulation did not limit the scope of provided data. Furthermore, the wording of that provision, pursuant to which disclosed data were meant for “the purposes of operational activities”, was assessed by the Supreme Administrative Court as too general and impossible to be reconciled with the constitutional requirements for interference in the privacy of individuals. Ruled to be unconstitutional, the provision of the Regulation also lacked mechanisms for counteracting misuse, and especially against the unauthorised obtaining of data by state security services. As indicated by the Bulgarian Supreme Administrative Court, the norms of national law must respect Article 8 of the Convention. Therefore, it is necessary to precisely regulate, in the current legislation, grounds for accessing the personal data of citizens as well as procedures for obtaining such data. The challenged provision failed to meet the said requirements.
3.5. In the judgment of 8 December 2009 (No. 1258), the Constitutional Court of Romania adjudicated on the non-conformity of the entire statute no. 298/2008 to the Romanian Constitution. As stressed by the Constitutional Court, restrictions within the scope of the right to the protection of private life, the privacy of correspondence and the freedom of expression must be formulated in a clear, predictable and unambiguous way, excluding – as much as possible – arbitrariness and abuse. The constitutional standard does not comprise a regulation that permits disclosure of telecommunications data for the purpose of counteracting “threats to national security”, as such a regulation is too general. Furthermore, in the case of the retention of telecommunications data, the legal basis must be particularly precise. This follows from the nature and unique character of the right to privacy and the privacy of communication, as well as consequences for individuals which may result from a potential infringement of those rights. The negative evaluation of the provisions that required the retention of telecommunications data also stemmed from the fact that the retention of data was continuous in character. In the view of the Constitutional Court, this would lead to constant surveillance of all persons, and thus it would be impossible to effectively protect their privacy. The judgment points out that there are other effective methods for counteracting and preventing crime, which to a considerably lesser extent interfere in the constitutional status of the individual, and thus should be resorted to by the lawgiver.
3.6. In its judgment of 2 March 2010 (1 BvR 256/08), the Federal Constitutional Court of Germany ruled that the provisions of § 113a and § 113b of the German Telecommunications Act (added on the basis of a statute implementing the Data Retention Directive 2006/24/EC) were inconsistent with Article 10(1) of the Basic Law (Grundgesetz), which stipulates that the privacy of correspondence, posts and telecommunications shall be inviolable. What was also deemed inconsistent with the Basic Law was § 100g of the German Code of Criminal Procedure, which provided for the collection of telecommunications data that concerned the perpetrator of and a person participating in an offence without their knowledge.
With regard to the preventive retention of telecommunications data, the Federal Constitutional Court did not challenge the admissibility of retaining such data for a period of 6 months; however, the Court considered the said solution to be proportional only in the context of strictly specified purposes, such as safeguarding national security or public order. Also, what follows from the said judgment is that the period of 6 months for the retention of telecommunications data is to be regarded as a maximum period.
The obtaining and direct use of data is only proportionate in character when, in a special way, it serves the fulfilment of important duties within the scope of legal protection. The disclosure of data may primarily be justified by: a suspicion that a serious offence has been committed, confirmed by certain facts; as well as proof that there are grounds for a particular threat to the health, life or safety of people, to the integrity or security of the state, or one of the lands; as well as a threat in a general sense.
Furthermore, it is necessary to establish sufficiently strict and clear regulations within the scope of security, possible ways of using the data, transparency and legal protection. In the case of the security of data, it is necessary to have provisions which will in a lucid and binding way establish particularly high standards within the scope of security. In any case, legal provisions should guarantee that the said standards will reflect the current scientific knowledge, taking account of the results of the most recent research.
In the view of the Federal Constitutional Court, the necessary requirement is the transparency of the use of the said data, which primarily is to be manifested in the need to notify a person subjected to surveillance about the fact that data concerning him/her have been obtained. The requirement of notification may be exempted from only be exception.
After the judgment of the Federal Constitutional Court of 2 March 2010, which declared the unconstitutionality of the national provisions that had implemented the Data Retention Directive 2006/24/EC, as well as due to anticipating the judgment of the CJEU on the conformity of the said Directive with the Charter, no legislative work was undertaken to enact new provisions that would adjust the German legal system to the requirements set out by the Federal Constitutional Court.
3.7. In the judgment of 22 March 2011 (Pl. ÚS 24/10) issued by the Constitutional Court of the Czech Republic (full bench), the Court adjudicated that § 97(3) and (4) of Law No. 127/2005 of 31 March 2005 on Electronic Communications and Amendment of Some Related Acts were unconstitutional, and also declared the unconstitutionality of the Decree No. 485/2005 of 7 December 2005.
In the view of the Court, the challenged provisions set out general obligations imposed on the providers of publicly available telecommunications services. But they lacked precise indication of competent entities that were authorised to access data; nor did they specify the circumstances of the collection and processing of data. Moreover, the purpose of providing data to the competent organs of public authority had not been clearly and precisely defined in the binding law. Hence, it might not be determined whether the said purpose met the requirement of necessity.
The challenged provisions on the terms of use of retained data in criminal proceedings did not limit the use of those data to the prevention, detection and prosecution of serious offences, as provided for in the Data Retention Directive 2006/24/EC. The challenged regulation did not provide for an obligation to notify the individual that telecommunications data related to him/her had been secretly obtained. Although the use of retained data was subject to judicial review, the statute did not precisely define the premisses and conditions of such access.
The reviewed provisions did not guarantee the sufficient level of protection to data that were subject to retention, and in particular they did not limit access to the data for third parties and they did not ensure that the data would remain intact. Also, they did not set out a procedure for deleting the data. Furthermore, the regulation did not contain essential procedural guarantees from the point of view of the individual.
3.8. In the decision of 23 April 2014 (ref. no. PL. ÚS 10/2014), the Slovakian Constitutional Court considered an application to determine the unconstitutionality of provisions of the Act on Communications Implementing the Data Retention Directive. The Court also issued a preliminary decision in which it suspended the application of the challenged provisions.
3.9. In its judgment of 27 July 2014 (ref. no. G 47/2012, G 59/2012, G 62/2012, G 70/2012, G 71/2012), the Austrian Constitutional Court ruled on the non-conformity to the Austrian Constitution and the Convention of provisions that authorised disclosure of telecommunications data to competent state services, where the data had been retained on the basis of provisions implementing the Data Retention Directive 2006/24/EC. The said judgment was issued after the CJEU, in its judgment of 8 April 2014, determined ‑ inter alia with relation to reference for preliminary ruling made by the Austrian Constitutional Court – that the Directive was invalid.
The Austrian Constitutional Court stressed that although the mechanism of data retention was conducive to counteracting threats, the admissibility of collecting telecommunications data by private entities for the purpose of disclosing them to competent organs of the state depended on the fulfilment of relevant procedural requirements. As the Court emphasised, the mechanism for the retention and disclosure of telecommunications data may be admissible in the light of the Constitution on the condition that there is judicial review and for the purpose of counteracting serious offences. The seriousness of offences should be assessed inter alia in terms of the harshness of a penalty for a given prohibited act. At the same time, there must exist effective mechanisms for the destruction of data, which the Austrian legal system lacked. Moreover, as pointed out by the Austrian Court, the rules for collecting and storing telecommunications data need to be regulated in a precise way, without any need for complex interpretative efforts.
3.10. In the judgment of 3 July 2014, the Slovenian Constitutional Court ruled that the provisions of the statute on electronic communications which implemented the Data Retention Directive 2006/24/EC were invalid. The Court held that the national provisions disproportionately interfered in the right to personal data protection (Article 38 of the Constitution). The Slovenian Court also obliged the providers of services or networks that had so far retained telecommunications data on the basis of the unconstitutional provisions to destroy the data immediately after the publication of the judgment.
In the view of the Slovenian Court, the purpose for retaining data which had been specified by law could be regarded as constitutionally legitimate. The legislator had provided for the retention of the said data for the purpose of criminal proceedings and in order to safeguard national security, the constitutional order as well as the interests of the state within the scope of security, politics and the economy. In the Court’s opinion, such a broad scope of the admissible use of the data – not being limited only to serious offences, as required by the Directive – implied disproportionate interference in the right to personal data protection.
Making reference to the CJEU judgment of 8 April 2014, the Slovenian Constitutional Court deemed that it was unnecessary to carry out preventive retention for 14 or 8 months with regard to telecommunications data concerning any calls made by anyone. The legislator had failed to convincingly prove the necessity of those solutions. At the same time, the challenged provisions did not provide for any exception that would make it possible to anonymously use telecommunications services. Such a broad scope ratione personae, ratione materiae and ratione temporis for the retention of telecommunications data may create an impression that the individual is under constant surveillance. This constitutes very serious interference in informational self-determination. This also affects citizens’ exercise of their rights and freedoms.
4. The previous jurisprudence of the Constitutional Tribunal.
So far there have been several cases in which the Constitutional Tribunal adjudicated on the issue of the constitutionality of provisions on operational and investigative activities that result in interference with the realm of the individual’s privacy and the privacy of communication (see the judgments of the Constitutional Tribunal of: 20 April 2004, ref. no. K 45/02, OTK ZU No. 4/A/2004, item 30; 12 December 2005, ref. no. K 32/04; 23 June 2009, ref. no. K 54/07; as well as decisions of: 25 January 2006, ref. no. S 2/06, OTK ZU No. 1/A/2006, item 13; and 15 November 2010, ref. no. S 4/10, OTK ZU No. 9/A/2010, item 111). The Constitutional Tribunal did not challenge the admissibility of applying the provisions in a democratic state ruled by law. On the contrary, it clearly stressed that the secret obtaining of information on citizens by the organs of public authority in the course of operational surveillance, which was aimed at preventing, detecting and counteracting offences, was necessary. The carrying out of those activities in a non-confidential way would make them inefficient, and this would affect the level of security of the state and its citizens (see the judgment of the Constitutional Tribunal of 12 December 2005, ref. no. K 32/04, part III, point 1.1). The said evaluation stemmed from taking account of both the special character of criminal activity and increasingly more difficult conditions for ensuring security in the face of the threat of terrorism, organised crime, or the use of new technologies by offenders for the purpose of communicating with each other and committing various specialised offences (e.g. computer-based offences).
Generally, the Constitutional Tribunal approved of granting competence within the scope of operational and investigative activities not only to the police, the Internal Security Agency or the Central Anti-Corruption Bureau (see e.g. the judgments of the Constitutional Tribunal of 20 April 2004, ref. no. K 45/02; 12 December 2005, ref. no. K 32/04; 23 June 2009, ref. no. K 54/07), but also to the organs of the fiscal intelligence service, which were responsible inter alia for counteracting negative phenomena such as failing to fulfil obligations to pay imposts, carrying out unreported economic activity, money laundering, and making unlawful use of capital connections between entities (see the judgments of the Constitution Tribunal of: 13 February 2001, ref. no. K 19/99, OTK ZU No. 2/2001, item 30; 20 June 2005, ref. no. K 4/04, OTK ZU No. 6/A/2005, item 64; 17 June 2008, ref. no. K 8/04, OTK ZU No. 5/A/2008, item 81, part III, point 2).
Many times the Tribunal also indicated the need to interpret constitutional provisions on the protection of privacy and informational self-determination in the light of values and standards arising from the Convention, which were manifested in the jurisprudence of the European Court of Human Rights (the ECHR). Bearing in mind a higher standard that is established by the Constitution with regard to the form of a legislative act, the Constitutional Tribunal has adopted the stance that it is statutes, and not legal acts of lower rank than statutes, that should specify grounds concerning the scope ratione personae and ratione materiae for the secret obtaining of information on the individual as well as evidence in a given case.
On numerous occasions, the Tribunal indicated to the legislator what requirements needed to be met by legal regulations which concerned the secret obtaining of information on individuals by police forces and state security services. The said requirements – which are formal, substantive and procedural in character – are generally concurrent with those adopted by the ECHR in the light of the interpretation of the Convention (see part III, point 2 of this statement of reasons).
Also, it was indicated that: “one may not speak of achieving the right compromise when the level of substantive-law protection is high, but at the procedural level there are no effective – i.e. such that ‘could be used’ by the aggrieved party – procedures and measures which make it possible to implement protection guaranteed in substantive-law provisions, and also – accessible for the person in question – protection against misuse of law and harassment” (the judgment of 12 December 2005, ref. no. K 32/04, part III, point 1.1).
5. Constitutional grounds for the admissibility of operational and investigative activities.
The judges of the Constitutional Tribunal adjudicating in the present case accept and maintain the previous line of jurisprudence as regards requirements that must be met by legal regulations concerning secret interference in the constitutionally protected rights and freedoms of individuals with relation to the carrying out of operational and investigative activities. However, taking into account the lack of appropriate reaction from the legislator to the Tribunal’s suggestions put forward in its previous jurisprudence, the recent emergence of hitherto unknown forms of the secret obtaining of information by means of new technologies, the enlargement of the group of public authorities that have competence to apply operational surveillance and to obtain telecommunications data, and moreover having regard to the manner of applying law by the organs of the state, it is necessary – in the Tribunal’s opinion – not only to remind the legislator more extensively about the current findings, but also to elaborate on them as well as supplement them.
5.1. Formal requirements – the statutory form of restrictions and the specificity of law.
5.1.1. Any restrictions imposed on the exercise of constitutional rights and freedoms need to be precisely regulated by statute. However, what is meant here is not only the formal placement of a provision imposing a given restriction in a normative act which ranks no lower than a statute, but also the “quality” of the said legal act, as it must ensure the predictability of measures to be taken by the organs of public authority with regard to the individual. The statutory form of restrictions imposed on the right to the protection of privacy (Article 47), the freedom and privacy of communication (Article 49) as well as informational self-determination (Article 51(1) of the Constitution) directly arises from Article 31(3) of the Constitution, and the guarantee of the sufficient specificity of provisions is also derived from the principle of a democratic state ruled by law (Article 2 of the Constitution). The requirement of statutory regulation for the matter of collecting and disclosing information has been established in Article 51(5) of the Constitution.
The Constitutional Tribunal recapitulated its previous jurisprudence concerning the principle of sufficient specificity of law in the Tribunal’s judgment in the case Kp 3/09. The Tribunal stated that: “The constitutional norm imposing the adherence to the principle of adequate specificity of legal regulations is a legal principle. This imposes on the legislator the obligation to optimise in the law-making process. The legislator should strive for the complete fulfilment of the requirements constituting this principle. Therefore, the degree of specificity of particular regulations is subject to relativisation, on a case-to-case basis, with regard to the actual and legal circumstances which concern the regulation being made. This relativisation is a natural consequence of vagueness of the language in which legal texts are drawn up as well as of the variety of matters that are subject to regulation” (the judgment of the Constitutional Tribunal of 28 October 2009, ref. no. Kp 3/09, OTK ZU No. 9/A/2009, item 138, part III, point 6.2). For the above reasons, the legislator is obliged to make legal provisions which would be as specific as it is possible in a given case, in respect of both the content as well as the form.
Consequently, every regulation determining the status of the individual in the state should display the following characteristics: ‘correctness’, ‘precision’ and ‘clarity’. Every legal provision should be drafted in a correct way from the point of view of linguistic accuracy and logic. Only after the fulfilment of that basic requirement, a given provision may be assessed in respect of the other criteria arising from the principle of specificity of law (see the judgment of the Constitutional Tribunal of 10 November 1998, ref. no. K 39/97, OTK ZU No. 6/1998, item 99, part IV, point 2.2). Consequently, statutory provisions that restrict constitutional rights or freedoms must be formulated in a way that makes it possible to clearly determine who and in what situation is subject to restrictions imposed by the state; they need to be precise enough to be applied and interpreted in a consistent way; finally, they need to be rendered in such a way that the scope of their application should cover only situations in which the reasonable legislator intended to introduce a regulation restricting the exercise of constitutional rights and freedoms (see the judgment of the Constitutional Tribunal of 30 October 2001, ref. no. K 33/00, OTK ZU No. 7/2001, item 217, part III, point 3). When legal provisions exceed a certain degree of ambiguity, this may constitute a sufficient ground for their non-conformity to the provision that requires the statutory regulation of certain matters as well as to the principle of a state ruled by law, as expressed in Article 2 of the Constitution (see the judgments of the Constitutional Tribunal of: 30 October 2001, ref. no. K 33/00, part III, point 3; 20 April 2004, ref. no. K 45/02, part III, point 2).
As it was indicated by the Tribunal in the above-quoted judgment in the case Kp 3/09: “The assessment of the constitutionality of a normative act always has to have a complex character. In the case of specificity, the complexity of that process is observed at two levels. Firstly, with reference to the analysis of specificity alone, the aforementioned aspects of the test of adequate specificity of law (precision, clarity, correctness) need to be taken into account in the first place, and then, in the right proportion, they should be referred to the character of the regulation under review. The other level is the axiological context, in which the constitutional review of norms is conducted. This context comprises the interpretation of the entirety of constitutional rules, principles and values, with which the norm under review needs to be confronted; the interpretation of the norm has been derived from the provision which was previously subject to formal review (in respect of specificity)” (the judgment of the Constitutional Tribunal of 28 October 2009, ref. no. Kp 3/09, part III, point 6.3.1).
The Constitutional Tribunal states that the extent of acceptance, when it comes to the degree of ambiguity of provisions, is not consistent for the entirety of legislation. The more provisions affect constitutional rights and freedoms, and in particular those that are personal in character, the stricter approach should be applied to the assessment of the precision of regulation. Furthermore, the Tribunal stresses that since personal freedoms are particularly strongly emphasised from the point of view of the structure of the Constitution, then statutory restrictions on exercising them should be possible to be determined on the basis of the linguistic interpretation of statutory provisions, without any need to refer to the systemic or functional interpretation. In the Tribunal’s opinion, in the case of personal freedoms, it is inadmissible to correct an unconstitutional legal norm derived on the basis of a linguistic interpretation by making reference to the other, non-linguistic, methods of interpretation, so that – outside the mainstream of the legal system – one could find an interpretation of a given provision restricting constitutionally-granted personal freedoms that would be consistent with the Constitution.
5.1.2. Applying the above findings to the regulation of interference in constitutional rights and freedoms with relation to the carrying out of operational and investigative activities by police forces or state security services, in the Tribunal’s opinion, the individual should know, on the basis of a statutory provision, who – and within what scope ratione personae, ratione materiae and ratione temporis – is authorised to secretly interfere in the broadly construed realm of privacy. However, the criterion of predictability does not entail – which is also emphasised in the jurisprudence of the ECHR – that the individual will be able to precisely predict the moment in which the organs of public authority will monitor his/her behaviour or obtain other information related to him/her, and thus the said person will be able to adjust his/her actions to that situation (e.g. avoid making telephone calls or contacting other persons). By contrast, the law must be sufficiently precise so that it will appropriately indicate circumstances and conditions in which the organs of the state could apply any of such measures. The Constitutional Tribunal deems that standards set out in the jurisprudence of the ECHR, within the above scope, remain fully relevant and are reflected in the content of the principle of a democratic state ruled by law, which arises from Article 2 of the Constitution, as well as in that part of Article 31(3) of the Constitution which requires that restrictions on rights and freedoms be regulated by statute.
The basic purpose of the precise description of grounds for the admissibility of operational and investigative activities is to set a framework in the strictest way possible for actions to be taken by the organs of the executive branch of government. This is to prevent any arbitrary application of law, and especially the burdening of the organs of the state that are responsible for applying the law with determining the limits of the individual’s freedom. Moreover, the Constitutional Tribunal also draws attention to the fact that the greater the scale of applying operational and investigative activities, and an ensuing increase – even though a potential one – in the frequency of interference in constitutional rights and freedoms, the more the statutory regulation must be characterised by complete and maximum precision.
5.1.3. In the light of the previous findings, the Tribunal emphasises the necessary elements of the statutory regulation of operational and investigative activities (the secret obtaining of information on individuals by public authorities).
5.1.3.1. Firstly, it is a statute that should specify grounds within the scope ratione materiae for such activities. To adhere to the constitutional standard, it does not suffice to make reference to general threats posed to legally protected interests, in particular by using insufficiently specified phrases. Therefore, the legislator is obliged to define a closed and considerably limited catalogue of serious offences which justify that kind of interference in the status of the individual. Despite assertions made by the Marshal of the Sejm in his procedural letters of 15 June and 30 August 2012 – that supposedly the Tribunal’s intention expressed in the so-called signalling decision in the case S 4/10 was that it was necessary to specify “types of offences” by statute solely by referring to specific provisions of a relevant criminal-law statute – the Tribunal does not formulate such a requirement with regard to the legislator. ‘The types of offences specified in a relevant criminal-law statute’, referred to in the above-mentioned decision in the case S 4/10, should be understood as specifying offences by their categories (e.g. the offence of homicide, assault or fraud), and not as indicating particular passages of a given criminal-law statute in which the offences are penalised. Also, it is not ruled out that other legislative techniques may be applied (e.g. reference to particular chapters or statutes), but in every case it should be possible to reconstruct situations where the secret obtaining of information by the organs of the state is admissible.
The precise statutory regulation of grounds within the scope ratione materiae for the admissibility of operational surveillance and the obtaining of telecommunications data is even more necessary, since police forces and state security services, acting on the basis of their statutory tasks, define threats which they are supposed to prevent. The Tribunal does not question that a statute may delineate the general outline of tasks assigned to police forces and state security services. However, it deems that grounds for the secret obtaining of information are to be defined by the legislator in an extensive and complete way. Relying on the well-established jurisprudence of the ECHR and the Constitutional Tribunal, it should once again be stressed that, on the basis of the wording of a statutory provision, the individual is to know what conduct puts her/him at the risk of criminal liability as well as makes it possible to subject him/her to operational and investigative activities which would considerably interfere in her/his privacy.
5.1.3.2. Secondly, it is necessary to specify ways of causing secret interference in the realm of the individual’s privacy. However, it is not necessary to indicate specific measures to be taken in the course of operational activities, or even to define their parameters, in legal provisions. Bearing in mind a vast number of measures applied by the organs of the state in the course of operational and investigative activities, the statutory catalogue thereof would have to be extensive, and this entails that a relevant legal norm would have to focus on specific cases. Such a solution might be inconsistent with the requirement that a legal norm should be abstract. As indicated many times by the Tribunal, also in the light of the specificity of repressive provisions, adherence to requirements arising from the principle of sufficient specificity of law may not lead to a regulation focusing on particular cases (see the judgments of the Constitutional Tribunal of: 26 November 2003, ref. no. SK 22/02, OTK ZU No. 9/A/2003, item 97, part III, point 4; 5 May 2004, ref. no. P 2/03, OTK ZU No. 5/A/2004, item 39, part III, point 3.5; 13 January 2005, ref. no. P 15/02, OTK ZU No. 1/A/2005, item 4, part III, point 2; 28 June 2005, ref. no. SK 56/04, OTK ZU No. 6/A/2005, item 67, part V, point 1; 17 December 2008, ref. no. P 16/08, OTK ZU No. 10/A/2008, item 181, part IV, point 8.2.2; 22 June 2010, ref. no. SK 25/08, OTK ZU No. 5/A/2010, item 51 part III, points 4.1-4.2; 1 December 2010, ref. no. K 41/07, OTK ZU No. 10/A/2010, item 127, part III, point 3.2). A similar conclusion was drawn by the Tribunal in the judgment concerning provisions on the conduct of operational surveillance by the fiscal intelligence service (see the judgment of the Constitutional Tribunal of 20 June 2005, K 4/04, part V, point 2.6), where it accepted – under several conditions – a certain degree of generality in the context of a regulation on the ways of carrying out operational surveillance by the fiscal intelligence service. One should also bear in mind that in the age of rapid technological development, with the multitude of ways for perpetrators to commit offences and communicate with each other, it does not seem realistic to be able to draft a closed catalogue of technical measures that may be applied for the purpose of the constitutionally-justified secret obtaining of information, without detriment to the effective fight against threats or without the exposure of operational activity.
In the light of the principle of specificity of law, it is vital in legal provisions to outline a closed catalogue of the types of measures and methods of operation by means of which public authorities may secretly collect information on individuals. Once again it should be emphasised that the point is not to indicate technical parameters, but the types of particular measures to be applied and information to be obtained with them (e.g. “the interception of telephone conversations”, “audio and video surveillance of premises and people”, “the tapping of land-line and mobile devices”, “the electronic monitoring of people, locations, objects and means of transportation”, “the electronic surveillance of land-line and mobile devices”). A closed catalogue of technical measures for the secret obtaining of information and evidence limits the arbitrariness of actions taken by the organs of the state. Furthermore, it facilitates effective supervision over secret operational and investigative activities, as regards methods that are used for obtaining information about persons.
According to the Tribunal, the most desirable solution from the point of view of the Constitution is to regulate, in a statute, the types of measures for the secret obtaining of information about individuals. The precise determination of that issue by the legislator means the implementation not only of the principle of specificity of law, which arises from Article 2 of the Constitution, but above all of the part of Article 31(3) of the Constitution which provides for the obligation to regulate restrictions on the exercise of constitutional rights and freedoms only “by statute”, which is enacted by the Sejm – a body representing the Nation (Article 4 in conjunction with Article 104(1) of the Constitution). The statutory regulation of the types of technical measures entails that the body which has been granted democratic legitimacy by the Nation takes on the burden of political responsibility for the scope of admissible surveillance and authorises the ways in which police forces and state security services may interfere in the privacy of individuals. Thus, it is justified for the Parliament to accept the admissibility of applying the types of technical measures which considerably interfere in the rights and freedoms of the person.
5.1.3.3. Thirdly, a statute should determine a maximum period for carrying out secret activities, after the lapse of which the continuation of the activities will be inadmissible. It is not the role of the Constitutional Tribunal, as a court of law, to specify the length of the said period. The period should be specified by the legislator in such a way that it would be possible to achieve a constitutionally justified goal. However, it may not be excessively long or too short so as not to hinder the effectiveness of operational and investigative work. Also, the legislator should bear in mind the fact that, in a democratic state ruled by law, it is inadmissible – even with permission granted by a court and in the case of suspicion that serious offences have been committed – to carry out operational and investigative activities for an indefinite period, even if this could lead to the irreversible loss of evidence.
5.1.3.4. Fourthly, a statute should regulate a procedure for ordering operational and investigative activities, including the act of granting competence to order the activities, as well as the verification of their lawfulness by an entity that is external and independent of the organs of the executive branch of government, most preferably by a court. The statute is to set out basic procedural elements, rules for using collected material as well as grounds and a procedure for the destruction thereof. From the point of view of the protection of constitutional rights and freedoms, it is necessary to require that authorities applying for the ordering of surveillance should indicate a legally admissible measure for obtaining information and evidence in a given case, as well as to impose an obligation on authorities that order carrying out the said activities to grant permission for the use of a specific type of measures to obtain information. Finally, it is necessary to regulate a procedure for ex post facto reporting about secret activities and measures that guarantee the transfer of records intact, which would subsequently make it possible to verify them. Within the above scope, it is not constitutionally acceptable to regulate the essential elements of the procedure in normative acts adopted as internal regulations within the organisational structure of a given police force or state security service.
5.1.3.5. Fifthly, a statute must precisely determine the scope of the use of data obtained in the course of operational and investigative activities, and in particular their use as evidence in criminal proceedings. The statute is also to specify the handling of material which is subject to immediate, witnessed and recorded destruction, due to its irrelevance or uselessness.
5.2. Substantive and procedural requirements – the principle of proportionality.
5.2.1. Operational and investigative activities are constitutionally justified as long as the purpose thereof is to protect the values of a democratic state ruled by law. Thus, they must meet the requirements of being “necessary in a democratic state ruled by law” (see Article 31(3) and Article 51(2) of the Constitution). Consequently, it is not sufficient if the said activities prove useful, cost-effective or easy to carry out for the organs of public authority. Nor is it of ultimate relevance that similar measures may be used in other countries (see the judgment of the Constitutional Tribunal of 12 December 2005, ref. no. K 32/04, part III, point 3.1). Indeed, the secret obtaining of information by police forces and state security services is to enhance the level of protection of values that are essential in a democratic state when this would be impossible to achieve by other measures that interfere to a lesser extent in the realm of the rights or freedoms of individuals. At the same time, these must be measures that are the least intrusive for persons whose rights or freedoms are restricted, and they need to be resorted to only by way of exception for the purpose of detecting serious offences. Otherwise, a democratic state would in fact become a police state.
5.2.2. The purpose of restricting constitutional rights and freedoms, due to carrying out operational and investigative activities, may not be random. Restrictions regarded as legitimate are only those that are aimed at protecting values explicitly mentioned in Article 31(3) or other detailed provisions of the Constitution. But it does not suffice if the legislator merely mentions the implementation of one of constitutionally protected values. In fact, it is necessary that a need to introduce such a value exists and is proved in the context of a democratic state ruled by law. Consequently, it is inadmissible for the organs of public authority to collect or store data on the individual, without a justified reason, or for unspecified or unattainable purposes. Also, the legislator should bear in mind that any secret obtaining of information on the individual should serve the protection of those values. Therefore, the information must make it possible to achieve a pursued and constitutionally justified goal, on the basis of available, verifiable and commonly accepted scholarly knowledge. If it may not be proved that it is highly probable that introduced or planned legal solutions can facilitate the detection of offences, and enhance the level of state security or the security of citizens, they will not meet the requirement of usefulness of restrictions.
In the light of the principle of proportionality, the restrictions of constitutional rights and freedoms require carrying out an assessment whether advantages gained from the introduction of the restrictions remain adequately proportionate to the burden resulting from the restrictions for the individual. In other words, there must be an adequate balance between values that compete with each other. Obviously, such an assessment is possible to be carried out only in a specific case. At this point, the Tribunal formulates only general conditions which must, every time, be taken into account in the course of examining the proportionality of a regulation.
5.2.3. The secret obtaining of information on the individual in a democratic state ruled by law by means of operational and investigative activities is only admissible for the purpose of preventing, prosecuting and detecting serious offences. It is not the Tribunal’s role – as a court of law – to define a catalogue of such offences. It is the task of the legislator, who has been granted certain discretion in that respect. When determining the catalogue of offences in the context of which it is admissible to carry out operational and investigative activities, the legislator may not depart from an objectively measured hierarchy of interests which is manifested in the Constitution. Nor may he disregard historical and social factors that determinate the scale of threats posed by particular offences in the context of the entire state. By contrast, in the Tribunal’s opinion, it is unjustified to claim that the mere penalisation of a given action in criminal-law statutes, and even a pledge to prosecute the offence on the basis of international agreements, could suffice to deem the action to be serious enough to justify the admissibility of the secret obtaining of information and evidence in the course of operational and investigative activities.
Moreover, the Tribunal draws attention to the fact that there is a need to constantly verify the catalogue of such offences. With the passage of time, the classification of some offences – considered so far to be serious ones – may vary. The catalogue of serious offences in the context of which it is admissible for the organs of the state to resort to the secret obtaining of information on individuals must be constantly updated by the legislator.
Provisions that regulate the secret obtaining of information on individuals by public authorities may not render grounds for ordering such surveillance in abstract terms – in isolation from the extent of an actual threat posed to certain interests in a given case. In order to regulate grounds for ordering operational and investigative activities, the catalogue of serious offences should be determined precisely, but also additional circumstances need to be indicated, which would make it possible to verify justification for obtaining information and evidence in particular cases in the above-mentioned way, taking into account inter alia the burden or scale of incurred damage.
The Tribunal does not rule out a possibility of obtaining information on individuals by means of operational and investigative activities also for the purpose of preventing serious offences, i.e. undertaking actions that counteract the commission of offences. Moreover, it does not undermine the admissibility of carrying out those activities so as to identify threats, i.e. to gather information about situations that are conducive to the commission of offences. In particular, this concerns activities carried out by state security services that are supposed to safeguard the internal and external security of the state. In the light of the constitutional standard, the ordering of operational surveillance or the obtaining of telecommunications data may however occur only in cases where the likelihood of an offence being committed is real, and not merely hypothetical. The burden of proof that it is probable that an offence will be committed lies with the organs of the state which apply for the secret obtaining of information, and should be subject to review by a court or another independent authority.
Although the purposes of operational and investigative activities differ, depending on whether the activities are carried out by law enforcement authorities (e.g. the police) or by information and intelligence services (e.g. the Internal Security Agency or the Military Counter-Intelligence Service), from the point of view of an infringement of the individual’s rights and freedoms, it is irrelevant what organ of public authority, and on what basis, acquires secret information on the individual. In both cases the degree to which the individual’s privacy and his/her privacy of communication have been breached remains the same, regardless of the fact whether the interference was caused by police forces or state security services. The Tribunal draws attention to the fact that the special character of activities carried out by information and intelligence services, as well as the relatively narrow scope of their tasks, may justify different rules for carrying out such activities and for using gathered material than rules binding the other organs of the state, and in particular police forces, whose scope of activity is extensive. Such differences in the rules for carrying out operational and investigative activities do not, obviously, lift the requirement to adhere to the principle of proportionality.
5.2.4. The secret obtaining of information on individuals in the course of operational and investigative activities must be a subsidiary measure, i.e. one which is resorted to when other solutions are useless or ineffective. This entails that secret interference in rights and freedoms is to constitute ultima ratio. This concerns, to the same extent, operational surveillance and the disclosure of telecommunications data, or other forms of operational and investigative activities that have a similar impact on individuals.
5.2.5. The premiss of subsidiarity is linked with the introduction of a procedural requirement i.e. supervision over the secret obtaining of information on individuals by an organ of the state that is independent of the government. It is desirable to grant powers within that scope to independent courts, which guarantee extensive knowledge and vast life experience. From the point of view of the Constitution, the judicial review of operational and investigative activities constitutes an optimal solution. However, it is not absolutely necessary. Powers of that kind may also be granted to other organs of the state whose systemic status and scope of statutory powers guarantee effective, independent and professional supervision over police forces and state security services.
The statutory regulations of the supervision must rule out its superficiality. The legislator is thus obliged to entrust courts or other authorities with powers that make it possible to assess the usefulness and subsidiarity of operational and investigative activities, as well as to evaluate the ways of carrying out the said activities in an individual case with regard to specific individuals. What is a prerequisite for the diligence of that supervision is a general obligation to justify a decision granting permission to carry out the supervision, as well as to indicate the subject and period of the supervision, and the detailed scope of obtained information. The Tribunal deems that a primary role needs to be assigned to ex ante supervision, which should be regarded as a rule at least when the organs of the state secretly obtain information on individuals which is related to the content of exchanged messages. However, it is not ruled out that ex post facto supervision may be introduced, i.e. one which legalises prior operational and investigative activities undertaken in accordance with a statutory procedure. However, that solution should be an exception, allowed only when the granting of ex ante permission would undermine certain vital interests, would considerably weaken the effectiveness of activity or would lead to the irrevocable loss of information that is of particular significance for national security and public order.
The Constitutional Tribunal does not rule out that the legislator could – in certain circumstances – refrain from establishing external supervision over the secret obtaining of information on the individual in the course of operational and investigative activities. This may concern the acquisition of only such data which are generally available in public registers or which may be made public voluntarily or consciously by individuals, in particular in telecommunications networks (e.g. the Internet).
5.2.6. The secret obtaining of information on individuals by the organs of public authority requires far-reaching procedural guarantees.
Above all, there needs to be an obligation to inform the individual about operational and investigative activities concerning him/her as well as about the obtaining of information on him/her, regardless of the fact whether the individual is suspected of breaching the law or whether s/he is a third party that accidentally has become the subject of surveillance. The notification of the individual at the stage of carrying out operational and investigative activities as well as obtaining information – needless to say – would cause the said activities to be ineffective. Thus, the legislator should guarantee ex post facto notification. The said request requirement is not lifted by the introduction of other, substitute solutions, such as the attorney of a person under surveillance. The Tribunal pointed out the need for introducing such an obligation of notification in its decision of 25 January 2006, ref. no. S 2/06. Notification about the collection of information is a ground for exercising the individual’s right of access to official documents and data sets, arising from Article 51(3) of the Constitution. In principle, all data on a given individual that are stored and processed by public authorities ‑ even if they are not compiled in one set – should be made available to that individual if s/he requests access. A (necessary) requirement for exercising the right expressed in Article 51(3) of the Constitution is awareness that certain data have been collected and compiled in a set. Failure to notify that information has been obtained on individuals by public authorities in itself constitutes an infringement of Article 51(3) and (4) of the Constitution. Since the individual is unaware that certain information about him/her has been collected ‑ as this has been done in secret, without the individual’s knowledge and consent ‑ s/he has no possibility of gaining access to the information, and may not request that it will be corrected or deleted in accordance with terms set out in Article 51(4) of the Constitution. The obligation of notification within the above-mentioned scope is to eliminate a risk of uncontrolled creation and storage of data sets that are useless for proceedings conducted by the organs of the state, but which are potentially valuable for the purpose of future, unspecified, activities.
The Tribunal is aware that in some situations it may also be justified to depart from the said obligation of notification. This in particular concerns situations where data were obtained solely accidentally and were not subject to further analysis, or if data were gathered from public registers. The said issues need to be resolved by the legislator.
The Constitutional Tribunal also points out that it is necessary to introduce a legal obligation to disclose to the public compiled statistical data on the number and types of operational and investigative activities that are carried out and which interfere in constitutional rights and freedoms of the individual. The said requirement arises from the principle of a democratic state ruled by law (Article 2 of the Constitution). It also constitutes the implementation of the constitutional right to obtain information on the activity of the organs of public authority (Article 61(1) of the Constitution). The transparency of statistical data which reflect the scale of the secret obtaining of data on individuals by the organs of the state should be an indispensable element of democratic supervision over the activity of the organs of the state (see the ECHR judgment of 25 June 2013 in the case of Youth Initiative for Human Rights v. Serbia, application no. 48135/06). In the Tribunal’s opinion, the lawgiver and the organs of public authority responsible for applying the law are to respect that obligation. Also, in order to effectively and diligently fulfil the obligation to report, the lawgiver should determine one – applied by all entities – methodology for preparing statistics, which would guarantee the lack of ambiguity and facilitate the comparability of data disclosed to public, even with regard to previous years.
5.3. The constitutional standard – a summary.
Taking account of the above findings put forward by the Constitutional Tribunal, the European Court of Human Rights as well as the Court of Justice of the European Union with regard to provisions that regulate the secret obtaining of information on individuals by public authorities in a democratic state ruled by law, the Tribunal deems it necessary to draw attention to minimum requirements that must be jointly met by provisions that restrict constitutional rights and freedoms. These are as follows:
- the collecting, storing and processing of data on individuals, and in particular data concerning the realm of their privacy, are permissible activities only on the basis of an explicit and precise provision of a statute (see inter alia the judgments of the Constitutional Tribunal of: 12 December 2005, ref. no. K 32/04; 23 June 2009, ref. no. K 54/07);
- it is necessary to precisely determine in a statute what organs of the state are authorised to collect and process data on individuals, as well as to carry out operational and investigative activities;
- a statute should specify grounds for the secret obtaining of information on individuals, which include: the detection and prosecution of only serious offences as well as the prevention thereof; a statute should determine the types of such offences (see e.g. the decision of the Constitutional Tribunal of 15 November 2010, ref. no. S 4/10; the ECHR judgments of: 29 June 2006 in the case of Weber and Saravia v. Germany, application no. 54934/00; 10 February 2009 in the case of Iordachi and Others v. Moldova, application no. 25198/02);
- a statute needs to specify the categories of individuals with regard to whom operational and investigative activities may be carried out (see the judgment of the Constitutional Tribunal of 12 December 2005, ref. no. K 32/04; the ECHR judgments of: 16 February 2000 in the case of Amann v. Switzerland, application no. 27798/95, 10 February 2009 in the case of Iordachi and Others v. Moldova, application no. 25198/02);
- it is desirable to specify by statute the types of measures used for the secret obtaining of information, as well as the types of information obtained with particular measures;
- operational and investigative activities should constitute a subsidiary measure for the secret obtaining of information or evidence on individuals, when it is impossible to gather the information in any other way that would be less intrusive for individuals (see the judgments of the Constitutional Tribunal of: 12 December 2005, ref. no. K 32/04; 23 June 2009, ref. no. K 54/07)
- a statute should specify a maximum period for carrying out operational and investigative activities with regard to individuals, which should not exceed what is necessary in a democratic state ruled by law;
- it is necessary to precisely regulate in a statute what procedure should be applied to order operational and investigative activities, which would in particular include the requirement to obtain permission from an independent organ of public authority for the secret obtaining of information (see e.g. the judgment of the Constitutional Tribunal of: 12 December 2005, ref. no. K 32/04; the ECHR judgments of: 29 June 2006 in the case of Weber and Saravia v. Germany; 2 September 2010 in the case of Uzun v. Germany, application no. 35623/05);
- a statute needs to precisely specify rules of procedure for handling material gathered in the course of operational and investigative activities, in particular rules for using and destroying data that are redundant and inadmissible (see e.g. the judgment of the Constitutional Tribunal of 12 December 2005, ref. no. K 32/04);
- it must be ensured that collected data are protected against unauthorised access on the part of other individuals and entities;
- there is a need to regulate a procedure for notifying individuals about the secret obtaining of information related to them within a reasonable time-limit after the conclusion of operational and investigative activities; also, it should be ensured that a person in question should have a possibility to apply for a judicial review of the legality of the activities that have been carried out; a departure from this is admissible only by way of exception (see e.g. the decision of the Constitutional Tribunal of 25 January 2006, ref. no. S 2/06);
- it is necessary to guarantee that operational and investigative activities are carried out in a transparent way by given organs of public authority, which implies the transparency and availability of compiled statistical data, which are valid for drawing comparisons in terms of the number and types of operational and investigative activities that have been carried out;
- it is not ruled out that differentiation may be introduced with regard to the intensity of the protection of privacy, informational self-determination as well as the privacy of communication, depending on whether data on given persons are obtained by intelligence services and state security services or whether they are gathered by police forces;
- differentiation with regard to the level of protection of privacy, informational self-determination and the privacy of communication may also be introduced, depending on whether the secret obtaining of information concerns Polish citizens or persons who are not Polish citizens.
6. The general characteristics of the challenged regulations.
6.1. Operational surveillance.
6.1.1. Operational surveillance constitutes one of the forms of operational and investigative activities that may be carried out by the police, the Border Guard, the fiscal intelligence service, the Military Police, the Military Counter-Intelligence Service, the Internal Security Agency as well as the Central Anti-Corruption Bureau. The said surveillance is secret in character.
6.1.2. The legislator has provided for the three categories of operational surveillance for each of the above-mentioned state security services. The said surveillance may consist in monitoring the content of correspondence, inspecting the content of parcels as well as “using technical measures that make it possible to secretly obtain information and evidence as well as to record them, and in particular to intercept the content of telephone calls and other information transferred via telecommunications networks”. The Act of 12 October 1990 on the Border Guard (Journal of Laws ‑ Dz. U. of 2011 No. 116, item 675, as amended; hereinafter: the Act on the Border Guard), the Act of 28 September 1991 on Fiscal Supervision (Journal of Laws ‑ Dz. U. of 2011 No. 41, item 214, as amended; hereinafter: the Act on Fiscal Supervision) and the Act of 24 August 2001 on the Military Police and military security forces (Journal of Laws ‑ Dz. U. of 2013 item 568 and 628; hereinafter: the Act on the Military Police) additionally mention “images”, as content that is subject to recording via technical measures.
Within the meaning of Article 2(35) of the Telecommunications Act, telecommunications networks are transmission systems and commutation or redirection devices, as well as other resources, including the inactive elements of networks which make it possible to send, receive or transmit signals via cables, radio waves, optical waves and other electromagnetic waves, regardless of their type. Information transferred via telecommunications networks covers: telephone conversations, text messages, multimedia messages, fax messages, as well as other information transferred via radio waves and the Internet, including emails, comments posted on Internet fora or in chatrooms. The catalogue of information that is possible to be obtained in the course of operational and investigative activities is open in character (see e.g. D. Szumiło-Kulczycka, Czynności operacyjno-rozpoznawcze i ich relacje do procesu karnego, Warszawa 2012, pp. 162-163).
The legislator has not defined the term ‘a technical measure’ – which is used in the challenged regulations – in any statutory provisions. What follows from the linguistic interpretation of Article 19(6)(3) of the Act of 6 April 1990 on the Police (Journal of Laws ‑ Dz. U. of 2011 No.287, item 1687, as amended; hereinafter: the Act on the Police), Article 9e(7)(3) of the Act on the Border Guard, Article 36c(4)(3) of the Act on Fiscal Supervision, Article 31(7)(3) of the Act on the Military Police, Article 27(6)(3) of the Act of 24 May 2002 on the Internal Security Agency and the Foreign Intelligence Agency (Journal of Laws ‑ Dz. U. of2010 No. 29, item 154, as amended; hereinafter: the Act on the Internal Security Agency), Article 17(5)(3) of the Act of 9 June 2006 on the Central Anti-Corruption Bureau (Journal of Laws ‑ Dz. U. of 2012 item 621, as amended; hereinafter: the Central Anti-Corruption Bureau Act) as well as Article 31(4)(3) of the Act of 9 June 2006 on the Military Counter-Intelligence Service and the Military Intelligence Service (Journal of Laws ‑ Dz. U. of 2014 item 253, as amended; hereinafter: the Act on the Military Counter-Intelligence Service) is that such a measure must have two types of characteristics. Firstly, it must be technical in character, i.e. it must in some way be based on modern technology; secondly, it should be used not only for obtaining but also for recording information.
Consequently, the term ‘operational surveillance’ is very broad. Such surveillance makes it possible to obtain various types of information on the individual, in particular information related to communication (the content of correspondence or conversations; the content of parcels) as well as to other forms of exchanging messages. Taking the above into consideration, the Tribunal assumes that the challenged provisions – as this arises from the linguistic interpretation thereof – make it possible inter alia: to conduct the audio surveillance of persons and premises, which includes the interception of conversations held via land-line, mobile and Internet telephony; to intercept text and multimedia messages sent via telephone devices as well as other equipment used for distant communication; to apply devices that register the location of persons and objects and which rely on satellite navigation; or to intercept electromagnetic emanations (see J. Kudła, “Wybrana problematyka czynności operacyjno-rozpoznawczych na tle uwag de lege ferenda projektu ustawy o czynnościach operacyjno-rozpoznawczych”, [in:] Praktyczne elementy zwalczania przestępczości zorganizowanej i terroryzmu. Nowoczesne technologie i praca operacyjna, L. Paprzycki, Z. Rau (eds), Warszawa 2009, pp. 533-534; J. Widacki, Kryminalistyka, Warszawa 2012, pp. 135-137).
6.1.3. As it is usually stressed in the literature on the subject, operational surveillance which comprises the use of technical measures constitutes something different than the monitoring of the content of correspondence. Indeed, it is assumed that the monitoring of the content of correspondence comprises merely the retention of correspondence in the forms of letters, postcards or other forms of exchanging information via traditional forms of communication (cf. J. Kudła, Wybrana…, op.cit. p. 533; D. Szumiło-Kulczycka, op.cit, p. 162). However, in the opinion of the representatives of the doctrine, in a situation where information is transferred by telecommunications networks – even if it constitutes correspondence in a broad sense – the proper basis of ordering the surveillance thereof are the following provisions: 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 Fiscal Supervision, 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 Central Anti-Corruption Bureau Act as well as Article 31(4)(3) of the Act on the Military Counter-Intelligence Service. The Constitutional Tribunal does not address the issue of the admissibility of such an interpretation of provisions that regulate operational surveillance in the light of Article 49 of the Constitution.
6.1.4. The scope of operational surveillance and the purpose thereof have been specified differently for each of the state security services authorised to carry out such surveillance. In the light of the provisions of the Act on the Police, the Act on the Border Guard as well as the Act on the Military Police, operational surveillance may be ordered to be carried out to: prevent premeditated offences prosecuted ex officio (the so-called catalogue offences); detect and determine perpetrators thereof; as well as obtain and record evidence of such prohibited acts. The said offences are enumerated in Article 19(1)(1)- Article 19(1)(8) of the Act on the Police, Article 9e(1)(1)- Article 9e(1)(7) of the Act on the Border Guard, and Article 31(1)(1)-Article 31(1)(17) of the Act on the Military Police. The fiscal intelligence service may carry out operational surveillance for the purpose of detecting catalogue offences enumerated in Article 36c(1)(1)-Article 36c(1)(5) of the Act on Fiscal Supervision, determining perpetrators thereof, as well as obtaining and recording the evidence of the commission of the said offences. Pursuant to Article 17(1) of the Central Anti-Corruption Bureau Act, the Bureau may carry out operational surveillance for the purpose of investigating and detecting offences specified in Article 17(1)(1) and Article 17(1)(2) of the Central Anti-Corruption Bureau Act, preventing them as well as obtaining and recording the evidence related to them. In the case of the Internal Security Agency, the legislator provides for the possibility of ordering operational surveillance so as to investigate and detect offences specified in Article 5(1)(2) of the Act on the Internal Security Agency, as well as to prevent them. However, the said provision does not provide for the possibility that the said surveillance is applied for the purpose of obtaining and recording evidence related to such offences. By contrast, in the light of the Act on the Military Counter-Intelligence Service, operational surveillance may be ordered for the purpose of investigating and detecting offences specified in Article 5 of the Act on the Military Counter-Intelligence Service, preventing them, as well as carrying out other tasks specified in that provision.
The catalogues of offences in the case of which operational surveillance may be carried out have been specified by the legislator by means of various legislative techniques: by indicating specific passages in criminal-law statutes; by indicating the types of offences; and sometimes by making reference to entire chapters or special statutes where those offences are specified. Also, as challenged by the applicants, the legislator uses wording which is so general that the catalogues of offences which justify the application of operational surveillance have virtually acquired an open-ended character. Indeed, he has made it possible to order operational surveillance with regard to “offences prosecuted on the basis of international agreements”, without specifying which offences in particular are meant here and in what normative acts they are to be included. In the Act on the Internal Security Agency and the Act on the Military Counter-Intelligence Service, the legislator has included imprecise phrases that are considerably general, such as “offences against national security”, “the essential economic interests of the state” or “the security of the Armed Forces of the Republic of Poland and the organisational units of the Ministry of National Defence, as well as foreign states that guarantee reciprocity”.
6.1.5. The scope ratione personae of operational surveillance is, in principle, unlimited. Only the Act on the Military Police provides for operational surveillance to be ordered as part of operational and investigative activities carried out with regard to persons indicated in Article 3(2)(1), Article 3(2)(3)(b) and Article 3(2)(5) of the Act on the Military Police. These persons are soldiers in service and the employees of military units who have committed a prohibited offence that is punishable by statute, where the offence is related to their occupation, as well as persons other than those mentioned in Article 3(2)(1)-Article 3(2)(4) of the Act on the Military Police, who are subject to the jurisdiction of military courts, or if this follows from separate provisions. The scope ratione personae of the application of operational surveillance is indirectly limited in the provisions of the Act on the Military Counter-Intelligence Service, since in the light of Article 5(1)(1) of the Act, the Service may carry out operational and investigative activities with regard to offences committed by soldiers in service, functionaries of the Military Counter-Intelligence Service and the Military Intelligence Service as well as employees of the Armed Forces of the Republic of Poland and of other organisational units of the Ministry of National Defence.
6.1.6. Operational surveillance is subsidiary in character. Therefore, it may be ordered only when other measures have proved to be ineffective or will be useless. The term “other measures” should be construed as comprising the other forms of operational and investigative activities, which do not constitute operational surveillance. ‘Ineffectiveness’ means that expected results are not attained, whereas ‘uselessness’ denotes that there is no possibility of attaining intended results by applying a particular measure. As it has been adopted in the literature on the subject, when applying for the ordering of operational surveillance, a competent authority is to prove the ineffectiveness of actions undertaken so far or to make it probable that the traditional methods of criminal analysis are useless (see W. Kozielewicz, “Postępowanie w przedmiocie zarządzenia kontroli operacyjnej”, [in:] Praktyczne elementy…, p. 511).
6.1.7. The statutory regulation of a procedure for ordering operational surveillance in the case of police forces is in its essence similar to the one in the case of state security services. In principle, the surveillance may be carried out after it has been ordered by a relevant circuit court upon a written application by the head of a given police force or state security service, filed after obtaining permission in writing from the Public Prosecutor-General or a competent public prosecutor in a given circuit. Only in the case of emergencies – where there is a risk that information will be lost, or that the proof of an offence will be covered up or destroyed – does the legislator provide for a possibility of ordering operational surveillance by the heads of the said services, after obtaining permission in writing from the Public Prosecutor-General or a competent public prosecutor in a given circuit. In such a situation, an authority that orders the said surveillance must refer to a relevant circuit court that has jurisdiction in that respect and apply for a decision to be issued in that case (approval or the lack of approval for operational surveillance – the so-called ex post facto approval). When filing the application, which should comprise, inter alia, the description of an offence and its legal category, an applicant ought to provide submissions in support of carrying out operational surveillance, as well as indicate the purpose, timing and type thereof. The circuit court adjudicates on the application for the ordering or approval of operational surveillance, where the case is heard and determined by one judge; court activities related to the examination of those applications are carried out in conditions provided for the transfer, storage and disclosure of confidential information. A representative of the authority filing the application for the ordering of the surveillance and a competent prosecutor may participate in a hearing before the court.
6.1.8. The authority applying for the ordering of operational surveillance is subsequently obliged to inform the competent public prosecutor about the outcome of that surveillance, and if requested – also about the course of the surveillance. Material obtained in the course of the surveillance – if it constitutes evidence that an offence or a fiscal offence, justifying the use of such surveillance, has been committed – may be included directly in court proceedings, without any need to further process the material obtained during the surveillance. If evidence has been obtained with relation to an offence in the case of which operational surveillance may be ordered, with regard to a person under surveillance, but which has not been covered by a court order, it is possible to issue ex post facto (legalising) authorisation for the use of that material. This is determined by the court that has jurisdiction to order the surveillance, upon an application by the Public Prosecutor-General or a competent public prosecutor in a given circuit.
6.1.9. In each of the statutes regulating operational surveillance, the legislator provides general rules for destroying material recorded in the course of the surveillance, which are irrelevant to purposes specified by statute. The rules are not identical for all particular services and thus they do not provide uniform guarantees. Pursuant to Article 19(17) of the Act on the Police, Article 9e(18) of the Act on the Border Guard and Article 31(18) of the Act on Military Police, the following shall be destroyed: material that contains no evidence useful for instituting criminal proceedings or evidence that is of relevance to such proceedings. By contrast, Article 36d(3) of the Act on Fiscal Supervision stipulates that the obligation to destroy material shall apply to material that contains no evidence useful for instituting proceedings with regard to an offence or a fiscal offence, or evidence that is of relevance to review proceedings. In Article 17(16) of the Central Anti-Corruption Bureau Act and Article 31(15) of the Act on the Military Counter-Intelligence Service, the legislator provides for a requirement to destroy only material that does not confirm the commission of an offence; pursuant to Article 27(16) of the Act on the Internal Security Agency, the obligation to destroy material shall apply only to material which is not vital for national security or does not confirm the commission of an offence.
6.2. Granting access to telecommunications data
6.2.1. Within the scope of operational and investigative activities, police forces and state security services may obtain telecommunications data referred to in Article 180c and Article 180d of the Telecommunications Act, as well as they may collect and process them.
6.2.2. Pursuant to Article 180c(1) of the Telecommunications Act, access shall be granted to data concerning: details about the end of network; a telecommunications end device; the end user who initiates a connection and to whom the connection is directed; the date and time of the connection as well as its duration, the type of the connection, and the location of the telecommunications end device. The catalogue of data referred to in Article 180c(1) has been made more precise by the Regulation of 28 December 2009 issued by the Minister of Infrastructure, on the basis of Article 180c(2), with regard to the detailed list of data, the categories of the providers of publicly available telecommunications services or public networks that are obliged to retain and store the data (Journal of Laws ‑ Dz. U. No. 226, item 1828; hereinafter: the Regulation of the Minister of Infrastructure).
By contrast, Article 180d of the Telecommunications Act – to which reference is made in 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 Fiscal Supervision, 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 Central Anti-Corruption Bureau Act, Article 32(1)(1) of the Act on the Military Counter-Intelligence Service, and Article 75d(1) of the Act of 27 August 2009 on the Customs Service (Journal of Laws ‑ Dz. U. of 2013 item 1404, as amended; hereinafter: the Act on the Customs Service) – does not by itself set out the catalogue of data which may be accessed by police forces and state security services. It makes reference to other provisions of the Telecommunications Act, namely: Article 159(1)(1), Article 159(1)(3)-(5), Article 161 as well as Article 179(9). This constitutes reference categorised as complex reference of the second degree being static in character. Although such a legislative construct is not ruled out in the light of the Constitution, it must be applied with great caution where it regulates the interference of public authorities in the legal status of the individual.
In the light of the above, the legislator has permitted authorised entities to obtain the following: data on users; transmission data (i.e. data processed for the purposes of exchanging messages via telecommunications networks or calculating fees for telecommunications services, including location data, which denote any data processed in a telecommunications network which show the geographical location of the end device of the user of publicly available telecommunications services); location data which go beyond data that are necessary for transmitting a message or preparing an invoice; data on attempted connections between telecommunications end devices or ends of the network, including unsuccessful attempts, where a connection was established but was not received by the end user or where the connection was interrupted. Pursuant to Article 161 of the Telecommunications Act, the provider of publicly available telecommunications services may also retain the following data, to which access may be granted to the organs of public authority: personal data of the subscriber which comprise name and surname; names of parents; date and place of birth; address where s/he lives and address for correspondence if it differs from the address of residence; PESEL number – in the case of a Polish citizen; the type, series and number of an ID, and in the case of a foreigner who is not a citizen of an EU Member State or the Swiss Confederation – the number of a passport or residence permit; data provided in documents which confirm the capacity to satisfy liabilities towards the provider of publicly available telecommunications services, which arises from a relevant agreement on the provision of such services. If the provider of publicly available telecommunications services has obtained consent from the user, who is an individual, to process other data related to the provision of the services to the user – in particular a bank account number or credit card number, the user’s address for correspondence (if it differs from his/her address of residence), email address, and telephone numbers – such data collected by the provider of publicly available telecommunications services may also be obtained and processed by police forces and state security services for the purposes set out by statute. Furthermore, police forces and state security services may receive data indicated in Article 179(9) of the Telecommunications Act, i.e. data included in the list of subscribers, users or ends of the network, and data obtained when signing the agreement, which every provider of telecommunications services or networks is required to keep.
To sum up, on the basis of 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 Fiscal Supervision, 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 Central Anti-Corruption Bureau Act, Article 32(1)(1) of the Act on the Military Counter-Intelligence Service, and Article 75d(1) of the Act on the Customs Service, it is possible to access three categories of data: those on the subscriber, traffic data (the so-called telephone billing data) as well as location data. But there is no legal possibility of accessing the content of individual messages transferred via telecommunications networks.
6.2.3. Granting access to telecommunications data pursuant to the challenged provisions may be based on the direct access of authorised functionaries to those data, without or with necessary participation of persons employed by the provider of telecommunications services. This is done via an ICT network which needs to meet security requirements. In particular, it is necessary to make it possible to identify persons obtaining data, the type of data, and the time when they are obtained (vide Article 20c(5) of the Act on the Police, Article 10b(4) of the Act on the Border Guard, Article 36b(6) of the Act on Fiscal Supervision, Article 30(4) of the Act on the Military Police, Article 28(4) of the Act on the Internal Security Agency, Article 18(4) of the Central Anti-Corruption Bureau Act, Article 32(6) of the Act on the Military Counter-Intelligence Service, and Article 75d(4) of the Act on the Customs Service). The other procedure for obtaining telecommunications data, permitted by the legislator, provides that an authorised functionary refers, in speech or writing, to the provider of telecommunications services and requests access.
6.2.4. The statutory regulation concerning the use of telecommunications data by police forces and state security services is laconic. Only Article 20c(6) and(7) of the Act on the Police, Article 10b(5) and(6) of the Act on the Border Guard, Article 30(5) and (6) of the Act on the Military Police stipulate that material which is relevant to criminal proceedings is provided by a given police force or state security service to a competent public prosecutor, whereas material which is irrelevant is subject to immediate, witnessed and recorded destruction. A different approach was taken in Article 75d(5) of the Act on the Customs Service, which states that the said obligation concerns material which contains no information that is relevant to proceedings on a fiscal misdemeanour or offence. By contrast, in the light of Article 36d(3) of the Act on Fiscal Supervision, the said obligation applies to material which contains no evidence that could be used to institute proceedings concerning an offence or a fiscal offence, or to material which is irrelevant to review proceedings. Analogical regulations have not been included in the Act on the Internal Security Agency, the Central Anti-Corruption Bureau Act and the Act on the Military Counter-Intelligence Service.
What raises controversy is the admissibility of using telecommunications data in court proceedings. It is sometimes argued that a large number of requests for access to telecommunications data in Poland result from the necessity to apply as if twice for the same data – for the first time, for the purpose of operational and investigative activities, and for the second time, in the course of criminal proceedings, where the data are needed as evidence. The said practice supposedly arises from the lack of sufficient legal bases which would permit the use of material gathered in the course of operational and investigative activities as evidence during criminal proceedings. When defining the purposes of obtaining and processing telecommunications data by police forces and state security services, the legislator overlooked the purpose of providing evidence. He merely limited himself to indicating that the said data may be disclosed to police forces and state security services for the purpose of preventing or detecting offences, as well as so that the police forces and state security services can carry out their statutory analytical and planning tasks. However, the literature on the subject indicates that, on the basis of the functional interpretation of provisions regulating access to telecommunications data, it is acceptable to use data obtained at the pre-trial stage to be used as evidence in criminal proceedings (see D. Szumiło-Kulczycka, op.cit., pp. 270-271).
The Tribunal notes that reapplying for telecommunications data so that they can be used as evidence, after the prior application for such data for operational and surveillance purposes, may affect the actual scale of access to telecommunications data in Poland by increasing it. This needs to be made more precise by the legislator.
6.2.5. The current binding regulations on the collection and processing of telecommunications data by the organs of the state are related to the implementation of the Data Retention Directive 2006/24/EC (part III, point 3.1 of this statement of reasons). The implementation took place by means of the Act of 24 April 2009 amending the Telecommunications Act and certain other acts (Journal of Laws ‑ Dz. U. No. 85, item 716; hereinafter: the implementing Act). The said Act obliged the providers of telecommunications services or networks to retain and process data, and consequently – upon application by certain organs of public authority – to provide access to telecommunications data referred to in Article 180c and Article 180d of the Telecommunications Act. It also created a legal framework for access to those data by authorised entities. It ought to be stressed that the possibility of requesting data from the providers of telecommunications services or networks concerning the circumstances and type of connections or attempts to connect was known in the legal system prior to the adoption of the Data Retention Directive 2006/24/EC. The said Directive specified to a greater extent the scope of the providers’ obligations in the context of data retention.
The Polish legislator implemented the Directive in an extensive way. First of all, he initially provided for an obligation to retain data for a maximum period set in the Directive – 24 months (which was unusual among EU Member States). Only by the Act of 16 November 2012 amending the Telecommunications Act and certain other acts (Journal of Laws ‑ Dz. U. item 1445), which has been in force since 21 January 2013, the said period has been shortened to 12 months. A similar period for data retention is applied in a majority of other EU Member States. Secondly, the legislator provided that access to telecommunications data may be requested not only for the purposes of investigating, detecting or prosecuting serious offences, as stated by the said Directive, but also for the purpose of counteracting offences that are relatively insignificant or even actions that do not constitute offences, or for the purpose of carrying out analytical and planning tasks. Thirdly, the competence to request access to retained telecommunications data has been granted to an exceptionally large number of authorities, when compared to other European states. Access to that data has been granted to all courts and public prosecutors (Article 218(1) of the Act of 6 June 1997 – the Code of Criminal Procedure; Journal of Laws ‑ Dz. U. No. 89, item 555, as amended; hereinafter: the Code of Criminal Procedure), as well as – which constitutes the subject of the present case – to no less than eight police forces and state security services.
6.2.6. Having regard to statistical data included in the latest report for the European Commission on the disclosure of telecommunications data retained by the providers of telecommunications services or networks in 2013, which was drafted on 17 March 2014 by the President of the Office of Electronic Communications, the Tribunal points out that a 12-month period for data retention is relatively long, considering the significant interference in constitutional rights and freedoms of individuals, caused by the retention of telecommunications data related to them. The said evaluation is even more justified as in the light of the above information: circa 49% of instances where data were disclosed occurred in the first 2 months of retention; circa 69% ‑ during the period of first 4 months. During the period from the 6th to the 11th month of retention, the instances deceased from 3.6% to 2.9% of the total number of disclosed data. A certain increase was observed in the 12th month (up to 8.37% of the total number of instances), which may stem from the tardiness of the organs of the state that wish to access those data. The above observation may suggest that it is likely that although authorised organs of the state were capable of accessing telecommunications data earlier, they delayed that until the last month. Bearing in mind the said statistics, one may raise doubt if retaining traffic and location data for a period longer than 6 months meets the constitutional requirement of usefulness, which follows from the principle of proportionality. However, this issue falls outside the scope of the allegation.
As indicated earlier on (see part III, points 3.1-3.3 of this statement of reasons), what follows from the information provided by President of the Office of Electronic Communications and the heads of particular police forces and state security services is that the scope of data disclosed by the providers of telecommunications services or networks is a resultant of several factors. This was also pointed out by the representatives of the President of the Supreme Chamber of Control and the President of the Office of Electronic Communications at the hearing. The said scope is often determined by specific technical solutions used by the providers of telecommunications services or networks. There are no uniform standards that would apply to all entities which are obliged to retain telecommunications data in Poland, as regards proceeding with a request filed by a particular police force or state security service that is authorised to access those data, which actually was criticised by the Supreme Chamber of Control (see Informacja o wynikach kontroli. Uzyskiwanie i przetwarzanie przez uprawnione podmioty danych z bilingów, informacji o lokalizacji oraz innych danych, o których mowa w art. 180c i d ustawy Prawo telekomunikacyjne, KPB-P/12/191, non-confidential version, signed on 12 June 2013). The said situation may result inter alia in the ambiguity of disclosed statistics that are to reflect the scale of accessing telecommunications data by police forces and state security services. In the Tribunal’s opinion, the lack of uniform standards within that scope constitutes a serious constitutional defect of the binding regulations.
7. The admissibility of adjudication – formal grounds.
7.1. Among provisions that are subject to review in the present case, the Ombudsman has challenged the conformity of Article 36c(4)(3) of the Act on Fiscal Supervision to Article 2 and Article 47 in conjunction with Article 31(3) of the Constitution. A legal norm arising from that provision – in a version that is similar to the one that is binding – has already been the subject of a constitutional review by the Constitutional Tribunal. In its judgment of 20 June 2005 (ref. no. K 4/04), the Tribunal stated that Article 8(27) of the Act of 27 June 2003 establishing Voivodeship Fiscal Authorities and amending certain statutes that regulated the tasks and powers of authorities as well as the organisation of units that were subject to a competent minister for public finance (Journal of Laws ‑ Dz. U. No. 137, item 1302; hereinafter: the Act on Voivodeship Fiscal Authorities) – within the scope in which it determined the wording of Article 36c(1) and (4) of the Act on Fiscal Supervision – was consistent with Article 2 as well as Article 47, Article 49 and Article 51(2) in conjunction with Article 31(3) of the Constitution. Although the Tribunal’s judgment in the above-mentioned case referred to one editorial unit (a provision of the amending statute), there is no doubt that the review concerned the legal norm derived from the said provision, which regulated the way of carrying out operational surveillance and the content of which was identical to the legal norm that is binding at present. Due to the fact that the norm under review with the higher-level norms for the review in the present case are identical to those in the case that have already been determined by the Tribunal, as well as having regard to the argument of the Marshal of the Sejm, who requested that the review proceedings within the scope of examining the constitutionality of Article 36c(4)(3) of the Act on Fiscal Supervision, it should be considered if there is a negative procedural premiss which would require that the said proceedings be discontinued.
7.2. Pursuant to Article 39(1)(1) of the Constitutional Tribunal Act of 1 August 1997 (Journal of Laws ‑ Dz. U. No. 102, item 643, as amended; hereinafter: the Constitutional Tribunal Act), the Tribunal shall discontinue review proceedings if the issuance of a ruling is useless or inadmissible. In the light of the jurisprudence of the Constitutional Tribunal, the previous examination of constitutionality in the context of the legal norm challenged in the light of the same higher-level norms for the review, in principle, entails that issuing a judgment is useless, due to a prohibition expressed by the principle of ne bis in idem (see the decisions of the Constitutional Tribunal of: 3 October 2001, ref. no. SK 3/01, OTK ZU No. 7/A/2001, item 218; 25 October 2011, ref. no. K 36/09, OTK ZU No. 8/A/2011, item 93; the judgment of 27 March 2007, ref. no. SK 3/05, OTK ZU No. 3/A/2007, item 32). Such a situation always occurs when the Tribunal deems that a given challenged norm is inconsistent with the Constitution, even if the initiator of review proceedings indicates additional higher-level norms for the review, apart from those which were previously the basis of a ruling on unconstitutionality (see the decision of the Constitutional Tribunal of 28 July 2003, ref. no. P 26/02, OTK ZU No. 6/A/2003, item 73). However, it is assumed in jurisprudence that the principle of ne bis in idem is not applicable if the Tribunal previously ruled that a given challenged norm was constitutional, and an applicant indicates a new higher-level norm for the review or presents new arguments, circumstances or evidence that justify the conduct of proceedings and the issuance of a ruling (see the judgments of: 5 September 2006, ref. no. K 51/05, OTK ZU No. 8/A/2006, item 100; 12 September 2006, ref. no. SK 21/05, OTK ZU No. 8/A/2006, item 103). The indication of new higher-level norms for the review, new allegations or arguments may indeed result in a different determination by the Tribunal as regards the constitutionality of a given provision.
7.3. Taking the above into account, what is most important is to consider whether the case K 4/04 is equivalent to the present case.
In the case K 4/04, a group of Sejm Deputies raised a number of allegations with regard to Article 8(27) of the Act on Voivodeship Fiscal Authorities, which assigned new wording to the provisions of chapter 4 of the Act on Fiscal Supervision, entitled “The Fiscal Intelligence Service”. Some of them concerned particular solutions provided for in the Act, whereas others challenged the functioning of the fiscal intelligence service in general. When adjudicating on the constitutionality of a norm arising from Article 36c(4) of the Act on Fiscal Supervision, the Tribunal considered some of the allegations to be groundless. Nevertheless, it carried out a substantive discussion of the allegations pertaining to Article 36c(4) of the Act on Fiscal Supervision, which – in the view of the applicants – allegedly lacked sufficient specificity. The Tribunal did not agree with the applicants’ allegations.
What follows from the analysis of the allegations raised by the applicants and – most importantly – from the ruling of the Constitutional Tribunal in the case K 4/04, as well as from the allegations put forward by the Ombudsman in the present case, is that there is no negative procedural premiss in the case under examination in the form of a prohibition arising from the principle of ne bis in idem. The Tribunal notes that the Ombudsman has indicated additional allegations and arguments in support of the unconstitutionality of the provision, which were not considered by the Constitutional Tribunal in the case K 4/04, namely: the lack of a catalogue of data which may be obtained by various state security services about the individual, as well as the lack of a statutory catalogue of technical measures which may be applied by the services in the course of operational surveillance. Thus, the challenged provision of the Act on Fiscal Supervision may be the subject of a substantive review in the present case. The said conclusion does not determine the content of a ruling in the present case.
8. The scope ratione materiae of operational surveillance.
8.1. The first constitutional issue indicated by the applicants is an insufficiently specific catalogue of situations that justify the ordering of operational surveillance in the course of operational and investigative activities carried out by the police, the Border Guard, the fiscal intelligence service, the Military Police, the Military Counter-Intelligence Service and the Internal Security Agency.
The applicants have indicated the following provisions as the subject of the review: 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 Fiscal Supervision; Article 31(1)(17) of the Act on the Military Police; Article 27(1) in conjunction with Article 5(1)(2)(a) of the Act on the Internal Security Agency, insofar as it refers to the wording: “and other offences against national security”; Article 27(1) in conjunction with Article 5(1)(2)(b) and (c) of the Act on the Internal Security Agency; Article 31(1) in conjunction with Article 5(1)(1)(a) of the Act on the Military Counter-Intelligence Service, insofar as it refers to the wording “as well as other statutes and international agreements”; Article 31(1) in conjunction with Article 5(1)(1)(g) of the Act on the Military Counter-Intelligence Service, insofar as it refers to the wording “as well as offences other than those enumerated in points (a)-(f), which undermine the defence potential of the following: the state, the Armed Forces of the Republic of Poland, the organisational units of the Ministry of Defence, and foreign states that guarantee reciprocity” and Article 31(1) in conjunction with Article 5(1)(9) of the Act on the Military Counter-Intelligence Service.
According to the applicants, the challenged provisions infringe Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution, and also Article 8 of the Convention. The regulation of grounds for the ordering of operational surveillance is very general in character, and thus it grants excessive freedom of interference in the individual’s constitutional rights and freedoms to the executive branch of government. Indeed, the legislator has not specified in detail the types of offences with relation to which particular police forces and state security services would have competence to carry out operational surveillance. Consequently – which is pointed out by the Public Prosecutor-General in his application of 7 March 2012 – the Police, the Border Guard, the fiscal intelligence service, the Military Police, the Military Counter-Intelligence Service as well as the Internal Security Agency may carry out operational surveillance in over 200 situations, and the said number systematically increases due to more international obligations that are taken on by Poland.
What raises the Public Prosecutor-General’s reservation is reference made by the legislator to unspecified international agreements which may comprise international agreements ratified upon prior consent expressed by statute, but also may include normative acts that fall outside the constitutional catalogue of the sources of universally binding law. Firstly, the Constitution does not provide for “international agreements” as the sources of universally binding law which may shape the situation of individuals. The literal interpretation of 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 Fiscal Supervision, Article 31(1)(17) of the Act on the Military Police and Article 31(1) in conjunction with Article 5(1)(1)(a) of the Act on the Military Counter-Intelligence Service may lead to the conclusion that “the legislator has permitted the carrying out of operational surveillance on the basis of international agreements ratified in a different way than with prior consent granted by the Parliament, as well as on the basis of international agreements that do not require any ratification, which seems totally inadmissible”. In the applicant’s opinion, failing to specify international agreements which regulate the prosecution of offences may also indicate the changeability of circumstances that justify the ordering of operational surveillance and a rise in such circumstances due to Poland’s acceptance of more and more international obligations in that respect. Indeed, every new obligation of public authorities to prosecute particular offences automatically extends the catalogue of situations where it is permissible to order operational surveillance. Since, on the basis of the challenged provisions, one may not specify the types of offences, the said provisions – in the opinion of the Public Prosecutor-General – have a blanket character.
Equivalent arguments are put forward by the Public Prosecutor-General with reference to Article 31(1) in conjunction with Article 5(1)(1)(a) and Article 5(1)(9) of the Military Counter-Intelligence Service, which provide authorisation to “undertake operational surveillance on the basis of unspecified regulations contained in unspecified normative acts that are of the same rank as statutes”, other than the Act on the Military Counter-Intelligence Service, and even such statutes that, at present, have not yet been enacted. In the applicant’s opinion, it is therefore impossible to indicate a closed catalogue of offences that justify the application of operational surveillance. Likewise, in Article 5(1)(1)(g), the wording ‘offences which undermine the defence potential of the following: the state, the Armed Forces of the Republic of Poland, the organisational units of the Ministry of Defence, and foreign states that guarantee reciprocity’ does not allow one to identify the specific types of offences determined in a relevant criminal-law statute, and thus it makes it impossible to specify situations where the ordering of operational surveillance is admissible. The applicant has made reference to the so-called signalling decision of the Constitutional Tribunal in the case S 4/10, which concerned grounds for ordering surveillance as set out in the Act on the Internal Security Agency, which – in his opinion – remains fully relevant in the present case. The Public Prosecutor-General has also pointed out that, in particular, the Act of 6 June 1997 – the Penal Code (Journal of Laws ‑ Dz. U. No. 88, item 553, as amended; hereinafter: the Penal Code) contains no chapter categorising offences that undermine the defence potential of the state, the Armed Forces of the Republic of Poland and the organisational units of the Ministry of Defence. None of normative acts defines a perpetrator’s action or failure to act that would undermine the said interests. This creates difficulties as regards determining grounds for secret interference with the constitutional rights and freedoms of individuals.
By contrast, the Ombudsman – when referring to the regulation of operational surveillance carried out by the Internal Security Agency – alleged 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 against national security”, as well as Article 27(1) in conjunction with Article 5(1)(2)(b) and Article 5(1)(2)(c) of the Act on the Internal Security Agency, made it impossible to precisely specify the circumstances of ordering operational surveillance. Neither the Penal Code nor other statutes include the phrase ‘an offence against national security’ and ‘an offence against the essential economic interests of the state’. This way the challenged provisions do not meet the constitutional standard of specificity of law, and make it impossible to determine the actual scope of interference with the individual’s privacy. Considering the lack of specificity of provisions, and the ensuing impossibility to precisely define the purposes of the interference, in the Ombudsman’s opinion, the challenged provisions may not pass the test of proportionality. As it is impossible to determine specific circumstances in which operational surveillance may be ordered, there is no way of assessing whether the said regulation has the potential to pursue the set goal. Moreover, the regulation poses a risk of arbitrary interference in the individual’s privacy.
8.2. The assessment of the conformity of Article 19(1)(8) of the Act on the Police to Article 2, Article 47, Article 49 in conjunction with Article 31(3) of the Constitution as well as to Article 8 of the Convention.
8.2.1. Challenged Article 19(1)(8) the Act on the Police reads as follows:
“When carrying out operational and investigative activities, undertaken by the police for the purpose of preventing and detecting premeditated offences prosecuted ex officio, determining perpetrators thereof, as well as obtaining and recording evidence related thereto (…), prosecuted on the basis of international agreements when other measures have proved to be ineffective or will be useless, a circuit court may – by issuing a decision – order the carrying out of operational surveillance upon a written application by the Head of the Polish Police, submitted after permission is granted in writing by the Public Prosecutor-General, or upon a written application by the head of the police in a voivodeship, filed after obtaining written permission from a competent public prosecutor in a given circuit, depending on the location of the office of the police authority filing the application”.
8.2.2. The challenged provision constitutes a basis for ordering operational surveillance, as part of operational and investigative activities, for a strictly specified purpose, namely: the purpose of preventing and detecting premeditated offences prosecuted ex officio, determining perpetrators thereof, as well as obtaining and recording evidence related thereto.
The catalogue of offences that justify the ordering of operational surveillance in the light of the Act on the Police has been set out by the legislator in Article 19(1) and it prima facie seems closed. As emphasised by the Supreme Court, “the catalogue included in Article 19(1) of the Act on the Police should be created on the basis of strict adherence to the principle of proportionality and the principle of respect for the individual’s privacy. Since the legislator, being rational, has resolved – taking the above into account – to narrow down the spectrum of the types of prohibited acts with regard to which operational surveillance may be carried out by the police, there are no arguments (apart from usefulness) for the random extension of that catalogue to include other offences. The fact that there are similarities between offences or similar penalties for offences set out in the catalogue to other offences specified in the Polish legal order may not determine a departure from the strictly literal interpretation of Article 19(1) of the Act on the Police” (the judgment of the Supreme Court of 30 January 2013, ref. no. III KK 130/12, unpublished; similarly, the decisions of the Supreme Court of: 10 October 2012, ref. no. II KK 336/11, OSNKW No. 1/2013, item 6; 26 April 2007, ref. no. I KZP 6/07, OSNKW No. 5/2007, item 37). Offences included in the said catalogue are described by types, usually with reference to the criminal-law provisions where the types are categorised. In some cases, the legislator has specified a category of offences in more detail, by linking it with a degree of threat to legally protected interests, the occurrence of which may justify the ordering of operational surveillance (see Article 19(1)(4)).
In Article 19(1)(8) of the Act on the Police, as part of the said catalogue, the legislator has provided for ordering operational surveillance for the purpose of preventing and detecting offences prosecuted on the basis of international agreements, determining perpetrators thereof, as well as obtaining and recording evidence related thereto. In this case, the legislator has not indicated which particular agreements are to specify the said offences; nor has he mentioned the types of offences or legal interests that those offences would undermine. In fact, the only restriction is that they should be premeditated offences prosecuted ex officio (Article 19(1) in principio of the Act on the Police), i.e. offences prosecuted by the organs of the state: ex officio; or upon application if a perpetrator intended (wanted) to commit them or, being aware of the possibility that they may be committed, consented to them (Article 9(1) of the Penal Code).
To sum up, the applicant formulates three allegations with regard to Article 19(1)(8) of the Act on the Police. The first allegation is formal in character. It concerns the possibility of ordering operational surveillance in situations that are actually defined in legal acts of lower rank than statutes as well as in legal acts that fall outside the catalogue of the sources of universally binding law. The second allegation pertained to the lack of sufficient specificity or even the “blanket” character of the provision setting out grounds for ordering operational surveillance, on the basis of which it is impossible to determine a closed catalogue of situations where interference in the status of the individual will occur. The third allegation, being closely related to the second one, regards an infringement of the principle of proportionality by virtue of the fact that the legislator has allowed the police to carry out operational surveillance in too many situations, and thus it may not be assessed whether secret interference in the right to the protection of privacy as well as in the freedom and privacy of communication is not excessive.
8.2.3. With reference to the first allegation, i.e. the broad interpretation of the phrase ‘international agreements’, the Tribunal recognises interpretative doubts that arise in the context of the linguistic interpretation of the said provision. The linguistic interpretation leads to the conclusion that the legislator has provided for operational surveillance to be applied with regard to every act categorised as a premeditated offence prosecuted ex officio in the light of international agreements that bind Poland, both those that are ratified with prior consent granted by statute (Article 89(1) of the Constitution) as well as those ratified without such consent, and even agreements that are not subject to ratification, which would be the sources of universally binding law.
However, the Constitutional Tribunal points out that it is possible to arrive at an interpretation of Article 19(1)(8) of the Act on the Police which would dispel the applicant’s reservations. Since the challenged provision authorises the police to secretly interfere in the constitutional rights and freedoms of individuals ‑ by subjecting those persons to operational surveillance and this way obtaining information on their private lives or information protected by the principle of the privacy of communication – then, in the light of Article 31(3) of the Constitution, circumstances in which such interference will be constitutionally admissible may only be specified in normative acts that rank no lower than statutes. Bearing in mind that operational surveillance concerns the constitutional rights and freedoms of individuals, and at the same time – in the light of the Constitution – requires statutory regulation (vide Article 89(1)(2) and Article 89(1)(5) of the Constitution), the said requirement will be met only by international agreements ratified with prior consent granted by statute. Therefore, it is hard to agree with the view presented by the Prime Minister in his submission in the present case that, allegedly, a procedure preceding the ratification of an international agreement was irrelevant to the assessment of the constitutionality of the challenged provision. In other words, the only constitutionally acceptable interpretation of Article 19(1)(8) of the Act on the Police is the assumption that the provision concerns international agreements ratified with prior consent granted by statute. Thus, it is inadmissible to order operational surveillance if the prosecution of offences in question is set out in sources of international law which in the Polish legal system rank lower than statutes. It should be stressed that at the same level as agreements ratified with prior consent granted by statute are also agreements referred to in Article 241(1) of the Constitution. In this state of affairs, offences mentioned in international agreements that were properly ratified on the basis of provisions that were binding before the entry into force of the Constitution of 1997 (i.e. the current Constitution) could also be regarded – in the light of the challenged provision – as offences justifying the ordering of operational surveillance by a court.
What matters in the present case is also another circumstance. The applicant failed to present – even at the hearing – convincing arguments, and in particular he did not give any examples of international agreements that were not subject to ratification and which would require Poland to prosecute offences with regard to which it was possible to order operational surveillance, but which were not included in the catalogue defined in Article 19(1)(1)‑Article 19(1)(7) of the Act on the Police. Having analysed information provided by the Minister of Foreign Affairs, the Minister of Justice, circuit courts and courts of appeal as regards the interpretation of the phrase ‘offences prosecuted on the basis of international agreements’, the Tribunal does not conclude that the phrase has been broadly interpreted and comprises also offences specified in other sources of law than international agreements ratified in accordance with the procedure set out in Article 89(1) of the Constitution.
The Constitutional Tribunal states that Article 19(1)(8) of the Act on the Police must be interpreted consistently with the Constitution, i.e. as a provision which concerns only premeditated offences prosecuted ex officio on the basis of international agreements that bind Poland and which are referred to in Article 89(1) of the Constitution, as well as those that have the status of agreements ratified with prior consent granted by statute, as mentioned in Article 241(1) of the Constitution. The fact that the Tribunal provides an interpretation of Article 19(1)(8) of the Act on the Police that is consistent with the Constitution does not entail that the legislator is no longer obliged to aim at due precision when formulating provisions. In particular, the legislator must take account of the different types of international agreements provided for in the current Constitution and consequences arising therefrom.
8.2.4. The Tribunal also disagrees with the allegation that the challenged provision is unconstitutional because it does not set out a closed catalogue of serious offences. Indeed, the number of ratified international agreements, and hence the number of premeditated offences prosecuted ex officio, is finite. Thus, the said catalogue is closed, although its scope is broad.
8.2.5. The phrase ‘offences prosecuted on the basis of international agreements’ in Article 19(1)(8) of the Act on the Police – with the above-mentioned restriction only to international agreements ratified with prior consent granted by statute – is ambiguous. Indeed, challenged Article 19(1)(8) of the Act on the Police could be interpreted at least in two ways. Firstly, as one that authorises the carrying out of operational surveillance for the purpose of preventing offences mentioned in ratified international agreements and regulated in a relevant Polish criminal-law statute, as well as for the purpose of detecting and prosecuting the said offences. As one may assume, these would be other offences than those indicated in Article 19(1)(1)‑Article 19(1)(7) of the Act on the Police. In this case, a legal basis for ordering operational surveillance would be Article 19(1)(8) of the Act on the Police in conjunction with an appropriate provision of a relevant Polish criminal-law statute which penalises an offence prosecuted on the basis of a ratified international agreement. Secondly, as a provision that authorises the carrying out of operational surveillance with regard to offences prosecuted on the basis of ratified international agreements, regardless of the fact whether the legislator has regulated the prosecution of that kind of offences in a relevant Polish criminal-law statute. Given that assumption, the basis of ordering operational surveillance would be Article 19(1)(8) of the Act on the Police in conjunction with a relevant provision of an international agreement that penalises certain conduct.
In the light of views presented in the field of Polish criminal law, the provisions of international agreements ratified with prior consent granted by statute may not in principle constitute an autonomous basis of criminal proceedings. This is because offences penalised in those normative acts are indicated there in general terms. The said agreements usually lack precise descriptions of the characteristics of prohibited acts or of sanctions imposed for the commission thereof. Signatory states usually have an international-law obligation to regulate such matters in domestic legislation in a way that would meet international requirements that bind them, and which consequently could ensure the prosecution of those offences in the domestic legal order (see the resolution of the Supreme Court of 30 July 2002, ref. no. I KZP 19/02, OSNKW No. 9-10/2002, item 67; cf. also A. Marek, Prawo karne, Warszawa 2011, p. 81, A. Sakowicz, comment 4 on Article 113, [in:] Kodeks karny. Część ogólna. Tom II. Komentarz do art. 32–116, M. Królikowski, A. Zawłocki (eds), Warszawa 2011, p. 1052). In that sense, the above-mentioned international agreements may not be regarded as agreements that are entirely self-executing, within the meaning of Article 91(1) in fine of the Constitution. Thus, they may not serve as bases for instituting or conducting criminal proceedings with regard to offences penalised in their wording, at least until the characteristics of the offences as well as sanctions for the commission of the offences are not made more specific in a relevant Polish criminal-law statute.
The Constitutional Tribunal agrees, within that scope, with the narrowing interpretation of the challenged provision, as proposed inter alia by the Minister of Justice in his letter of 112 June 2014. Consequently, the phrase used in Article 19(1)(8) of the Act on the Police must be interpreted in a narrow way, i.e. as one that refers to international agreements ratified with prior consent granted by statute, where the agreements require state signatories to penalise, in their domestic legal systems, certain actions defined as offences and possibly regulate other issues concerning criminal proceedings.
The catalogue of offences which may be regarded as offences prosecuted on the basis of international agreements ratified with prior consent granted by statute is extensive. However, what follows from the information provided to the Constitutional Tribunal by the Minister of Justice in his letter of 16 January 2014, and supplemented with letters of 13 May and 11 June 2014, is that most offences set out in those agreements are covered by the scope of Article 19(1)(1)‑Article 19(1)(7) of the Act on the Police. The Tribunal accepts those findings and incorporates them for the sake of adjudication in the present case. The provision challenged by the Public Prosecutor-General may, by way of exception, constitute a legal basis for ordering operational surveillance, i.e. when an offence has not been provided for in the catalogue set out in Article 19(1)(1)‑Article 19(1)(7) of the Act on the Police, but at the same time constitutes an offence regulated in a Polish criminal-law statute and is prosecuted on the basis of international agreements ratified with prior consent granted by statute. What arises from the above-mentioned submissions is that the number of such offences will be relatively insignificant. This was also confirmed at the hearing by the representative of the Head of the Polish Police. During the years 2006-2014, Article 19(1)(8) of the Act on the Police served as a basis for ordering operational surveillance in circa 160 cases. The said provision was usually indicated as an additional (supplementary) legal basis of operational surveillance, apart from one of the points from Article 19(1)(1)‑Article 19(1)(7) of the said Act. In the period of 2006-2014, only in a few cases, Article 19(1)(8) of the said Act constituted an autonomous basis for ordering operations surveillance.
Taking the above into consideration, the Tribunal states that Article 19(1)(8) of the Act on the Police within its scope comprises a small number of offences regarded as prosecuted on the basis of international agreements ratified with prior consent granted by statute and, additionally, categorised in a relevant Polish criminal-law statute, and which do not fall within the catalogue set out in Article 19(1)(1)‑Article 19(1)(7) of the said Act. Despite what the applicant argued, it is possible to determine what types of offences are meant here. Thus, the allegation that Article 2 of the Constitution has been infringed may not be deemed valid.
8.2.6. Offences prosecuted on the basis of international agreements that have the status of agreements ratified with prior consent granted by statute may also be regarded as serious offences which justify the ordering of operational surveillance for the purpose set in Article 19(1) of the Act on the Police.
The circumstances that prohibited acts are ratified in an international agreement and that Poland has taken on the obligation to prosecute them do not determine that the offences are serious (see part III point 5.2 of this statement of reasons). Also, the obligation to respect international law that binds Poland (Article 9 of the Constitution) does not constitute sufficient justification for authorising police forces and state security services to carry out operational surveillance. In the light of the binding legal provisions, offences prosecuted on the basis of international agreements may not, however, be regarded as causing manifestly disproportionate interference in the right to the protection of privacy and in the privacy of communication, guaranteed in Article 47 and Article 49 of the Constitution as well as Article 8 of the Convention. In principle, they require the prosecution of grievous offences that pose a threat to such values as life, health or public security. At the same time, it is impossible to deem that the application of the challenged provision by the organs of the state – in particular by the police and courts – has resulted in assigning the provision with content that is inconsistent with constitutional norms, principles and values.
One more circumstance is of significance to the Tribunal. The applicant did not prove, in his letters and at the hearing, in the context of which particular types of offences prosecuted on the basis of international agreements, the legislator’s interference in the realm of privacy and the privacy of communication would be disproportionate. Taking this into consideration, the Constitutional Tribunal states that the presumption of conformity of the challenged provisions to the Constitution and the Convention has not been overturned.
Considering the above, the Constitutional Tribunal states that Article 19(1)(8) of the Act on the Police – construed in the way that it concerns offences specified in a relevant Polish criminal-law statute which are prosecuted on the basis of international agreements ratified with prior consent granted by statute – is consistent with Article 2, Article 47, Article 49 in conjunction with Article 31(3) of the Constitution as well as to Article 8 of the Convention.
8.2.6. Offences prosecuted on the basis of international agreements that have the status of agreements ratified with prior consent granted by statute may also be regarded as serious offences which justify the ordering of operational surveillance for the purpose set in Article 19(1) of the Act on the Police.
The mere facts that prohibited acts are ratified in an international agreement and that Poland has taken on the obligation to prosecute them do determine that the offences are serious (see part III point 5.2 of this statement of reasons). Also, the obligation to respect international law that binds Poland (Article 9 of the Constitution) does not constitute sufficient justification for authorising police forces and state security services to carry out operational surveillance. In the light of the binding legal provisins, offences prosecuted on the basis of international agreements may not however be regarded as causing manifestly disproportionate interference in the right to the protection of privacy and the privacy of communication, guaranteed in Article 47 and Article 49 of the Constitution as well as Article 8 of the Convention. In principle, they require the prosecution of grievous offences that pose a threat to such values as life, health or public security. At the same time, it is impossible to deem that the application of the challenged provision by the organs of the state, in particular by the police and courts, has resulted in assigning the provision with content that is inconsistent with constitutional norms, principles and values.
One more circumstance is of significance to the Tribunal. The applicant did not prove in his letters and at the hearing in the context of which particular types of offences prosecuted on the basis of international agreements the legislator’s interference in privacy and the privacy of communication would be disproportionate. Taking this into consideration, the Constitutional Tribunal states that the presumption of conformity of the challenged provisions to the Constitution and the Convention has not been overturned.
Considering the above, the Constitutional Tribunal states that Article 19(1)(8) of the Act on the Police, construed in the way that it concerns offences specified in a relevant Polish criminal-law statute which are prosecuted on the basis of international agreements ratified with prior consent granted by statute, is consistent with Article 2, Article 47, Article 49 in conjunction with Article 31(3) of the Constitution as well as to Article 8 of the Convention.
8.3. The assessment of the conformity of Article 9e(1)(7) of the Act on the Border Guard to Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution as well as Article 8 of the Convention.
8.3.1. Challenged Article 9e(1)(7) of the Act on the Border Guard reads as follows:
“When carrying out operational and investigative activities that are undertaken by the Border Guard for the purpose of preventing and detecting premeditated offences prosecuted ex officio, determining perpetrators thereof, as well as obtaining and recording evidence related thereto (…), prosecuted on the basis of international agreements, where other measures proved to be ineffective or useless, the court – upon a written application by the Head of the Border Guard, filed after obtaining permission from the Public Prosecutor-General, or a written application of the head of a unit of the Border Guard, submitted after obtaining permission in writing from a competent public prosecutor in a given circuit – may, by way of a decision, order operational surveillance”.
8.3.2. The applicant formulates the same allegations with regard to that provision as in the case of Article 19(1)(8) of the Act on the Police. What is also analogical is justification and evidence in support thereof. In the opinion of the Constitutional Tribunal, there are also no circumstances – inter alia which would be related to the scope of the statutory tasks of the Border Guard provided for in Article 1(2) of the Act on the Border Guard – which could determine a different assessment of that provision in comparison with Article 19(1)(8) of the Act on the Police.
Taking the above into consideration, the Constitutional Tribunal states that Article 9e(1)(7) of the Act on the Border Guard, construed in the way that it concerns offences specified in a relevant Polish criminal-law statute which are prosecuted on the basis of international agreements ratified with prior consent granted by statute, is consistent with Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution as well as Article 8 of the Convention.
8.4. The assessment of the conformity of Article 36c(1)(5) of the Act on Fiscal Supervision to Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution as well as with Article 8 of the Convention.
8.4.1. Challenged Article 36c(1)(5) of the Act on Fiscal Supervision reads as follows:
“As part of operational and investigative activities undertaken by the fiscal intelligence service for the purpose of detecting offences, determining perpetrators as well as acquiring and copying evidence of offences (…) prosecuted on the basis of international agreements, if other measures have proved to be ineffective or will be useless, the Circuit Court in Warsaw, hereinafter referred to as ‘the Court’, upon a written application of the General Inspector of Fiscal Supervision, filed after obtaining written permission from the Public Prosecutor-General, may – by issuing a decision – order operational surveillance”.
8.4.2. The applicant has raised the same allegations with regard to Article 36c(1)(5) of the Act on Fiscal Supervision as in the context of Article 19(1)(8) of the Act on the Police. Moreover, justification and evidence provided in support of that provision are also equivalent. In the view of the Constitutional Tribunal, there are no particular circumstances, related to the scope of the statutory tasks assigned to the fiscal intelligence service, and set out in Article 2 of the said Act, which could determine the different evaluation of the said provision in comparison with Article 19(1)(8) of the Act on the Police.
Taking the above into consideration, the Constitutional Tribunal states that Article 36c(1)(5) of the Act on Fiscal Supervision, construed in the way that it concerns offences specified in a relevant Polish criminal-law statute which are prosecuted on the basis of international agreements ratified with prior consent granted by statute, is consistent with Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution as well as Article 8 of the Convention.
8.5. The assessment of the conformity of Article 31(1)(17) of the Act on the Military Police to Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution as well as with Article 8 of the Convention.
8.5.1. The challenged provision reads as follows:
“When carrying out operational and investigative activities that are undertaken by the Military Police, within the scope of tasks specified in Article 4(1) as well as with regard to persons indicated in Article 3(2)(1), Article 3(2)(3)(b) and Article 3(2)(5), the purpose of preventing and detecting premeditated offences prosecuted ex officio, determining perpetrators thereof, as well as obtaining and recording evidence related thereto (…), 17) and prosecuted on the basis of international agreements, where other measures have proved to be ineffective or will be useless, a military circuit court – upon a written application by the Head of the Military Police, filed after obtaining permission in writing from the Public Prosecutor-General, or upon a written application of the head of a unit of the Military Police, submitted after obtaining permission from the Head of the Military Police and another permission in writing from a competent public prosecutor in a given circuit – may, by issuing a decision, order operational surveillance”.
8.5.2. The Public Prosecutor-General has raised the same allegations with regard to Article 31(1)(17) of the Act on the Military Police as in the context of Article 19(1)(8) of the Act on the Police. Moreover, the justification and evidence in support thereof are equivalent.
In the view of the Constitutional Tribunal, there are no special circumstances which could lead to a different assessment of that provision in comparison with Article 19(1)(8) of the Act on the Police. Additionally, the Constitutional Tribunal draws attention to the fact that the legislator has narrowed down the scope ratione personae of operational surveillance in this context, when juxtaposed with the other state services. Operational and investigative activities may be carried out by the Military Police within the scope of statutory tasks specified in Article 4(1) and only exclusively with regard to persons indicated in Article 3(2)(1), Article 3(2)(3)(b) and Article 3(2)(5) of the Act on the Military Police. The first case of narrowing down the scope – i.e. the limitation of the admissibility of carrying out operational surveillance only to the statutory tasks of that police force – implicitly functions in the other statutes. By contrast, the Act on the Police, the Act on the Border Guard as well as the Act on Fiscal Supervision do not narrow down the group of individuals that may be subjected to operational surveillance. Within the meaning of Article 3(2)(1), Article 3(2)(3)(b) and Article 3(2)(5) of the Act on the Military Police, the said police force carries out the activities set out by statute with regard to soldiers in service and the employees of military units, if they commit an act prohibited and punishable by statute, which is related to their occupation, as well as to persons other than those indicated in Article 3(2)(1)‑Article 3(2)(4), who are subject to military courts or if that arises from separate provisions.
Taking the above into consideration, the Constitutional Tribunal deems that Article 31(1)(17) of the Act on the Military Police – construed in the way that it concerns offences specified in a relevant Polish criminal-law statute which are prosecuted on the basis of international agreements ratified with prior consent granted by statute – is consistent with Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution as well as Article 8 of the Convention.
8.6. The assessment of the conformity of Article 27(1) in conjunction with Article 5(1)(2)(b) of the Internal Security Agency to Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution.
8.6.1. Challenged Article 27(1) of the Internal Security Agency reads as follows:
“When carrying out operational and investigative activities that are undertaken by the Internal Security Agency, for the purpose of carrying out tasks specified in Article 5(1)(2), where other measures have proved to be ineffective or will be useless, the court – upon a written application by the Head of the Internal Security Agency, filed after obtaining permission from the Public Prosecutor-General – may, by issuing a decision, order operational surveillance”.
By contrast, the provision of Article 5(1)(2)(b) of the Act on the Internal Security Agency stipulates as follows:
“The tasks of the Internal Security Agency shall comprise the investigation, prevention and detection of offences against the essential economic interests of the state”.
8.6.2. The Ombudsman challenges both provisions that set the scope ratione materiae of operational surveillance carried out by the Internal Security Agency, by grouping them together. But he does not challenge the statutory scope of the tasks of the Agency set out in Article 5 of the Act on the Internal Security Agency. The question of constitutionality arises from the fact that in the provision regulating the competence of the Internal Security Agency to apply operational surveillance, i.e. Article 27(1), the legislator does not specify in a complete way the scope ratione materiae of operational surveillance, as he does, for instance, in the Act on the Police, but he makes reference to a provision which defines the tasks of the Agency in general terms, i.e. Article 5(1)(2) of the Act on the Internal Security Agency. According to the applicant, the challenged provisions do not make it possible to determine in what cases it is admissible to order operational surveillance, and secretly obtain information on persons. None of the provisions of the Act on the Internal Security Agency defines the expression ‘offences against the essential economic interests of the state’, referred to in Article 5(1)(2)(b). The said expression may not be reconstructed on the basis of other normative acts. In this situation, the burden of delineating the actual limits of the rights and freedoms of the individual was shifted onto the organs of public authority responsible for applying the law – circuit courts and the Internal Security Agency. In support of his argumentation, the Ombudsman makes reference to the so-called signalling decision in the case S 4/10, in which the Constitutional Tribunal drew attention to the necessity to introduce changes in the Act on the Internal security Agency, so that the said Act would specify the types of offences with relation to which it is possible to order operational surveillance.
8.6.3. The Constitutional Tribunal (full bench), adjudicating in the present case, agrees with 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.
Also, the Tribunal maintains its stance held in the case S 4/10. As the Tribunal pointed out there: “When ordering operational surveillance, the Circuit Court in Warsaw should indicate a particular person and the type of an offence specified in a relevant Polish criminal-law statute with regard to which operational surveillance is to be ordered. However, in the case of ordering operational surveillance by the court, in the context of offences specified in Article 5(1)(2)(b) of the Act on the Internal Security Agency, i.e. as regards offences ‘against the essential economic interests of the state’, this is impossible, since the expression ‘offences against the essential economic interests of the state’ rules out the possibility of identifying the types of offences set out by the said criminal-law statute. The lack of a possibility to identify the types of offences set out by a relevant criminal-law statute, which characterises Article 5(1)(2)(b) of the Act on the Internal Security Agency, affects Article 27(1) of the Act on the Internal Security Agency. Indeed, what does not follow from that provision is the answer to the question: with relation to which type of an offence specified by the criminal-law statute, the court orders operational surveillance, when the provision mentions the tasks of the Internal Security Agency aimed at investigating, preventing, detecting ‘offences against the essential economic interests of the state’ referred to in Article 5(1)(2)(b) of the Act on the Internal Security Agency”.
The above remarks are also relevant in the present case. Neither the Penal Code nor other statutes use the phrase ‘offences against the essential economic interests of the state’, when it comes to the types of particular prohibited acts, elements that define them or the titles of the chapters of criminal-law statutes that comprise offences of a given type. In fact, the said phrase appeared in the Act of 6 April 1990 on the Office for State Protection (Journal of Laws ‑ Dz. U. No. 30, item 180, as amended), which is no longer in force; on the basis of the Act of 21 July 1995 amending the Acts on the Office of the Minister of the Interior, the Police, the Office for State Protection, the Border Guard as well as certain other acts (Journal of Laws ‑ Dz. No. 104, item 515), the scope of the tasks of the Office for State Protection was extended by adding “investigating and preventing offences that are against the essential economic interests of the state as well as prosecuting the perpetrators thereof”. However, the legislator did not specify what types of offences are meant there. Also, the historical interpretation does not make it possible to reconstruct the possible scope of the currently binding regulation.
As it follows from information presented at the hearing by the representatives of the Public Prosecutor-General and the Internal Security Agency, i.e. the organs of public authority that are involved in carrying out operational surveillance, the scope of Article 5(1)(2)(b) of the Internal Security Agency is broad and lacks sufficient specificity. The representative of the Public Prosecutor-General pointed out that the phrase ‘offences against the essential economic interests of the state’ was ambiguous. It is impossible to narrow down its scope to offences categorised into types in certain provisions or even chapters of criminal-law statutes. In his opinion, this may be applied as a basis of ordering operational surveillance, inter alia, in the case of offences related to business transactions, the transfer of money or other means of payment, and even ‑ which may not be ruled out – offences that do not have a strictly economic (business) character, but which have a negative impact on the economy of the state. By contrast, as argued by the representative of the Internal Security Agency, on the basis of Article 5(1)(2)(b) of the said Act, operational surveillance is usually applied with reference to fiscal offences as well as other offences that result in a financial loss on the part of the State Treasury and irregularities within the scope of public imposts, generally committed in networks or groups involved in crime.
Determining the scope of regulation in Article 27(1), in conjunction with Article 5(1)(2)(b), of the Act on the Internal Security Agency is also impossible by referring to the jurisprudence of courts. Indeed, the Tribunal did not receive any explanation how the Circuit Court in Warsaw, which has the jurisdiction to provide determinations pertaining to operational surveillance to be carried out by the Internal Security Agency, understood the phrase ‘offences against the essential economic interests of the state’.
Moreover, the following circumstance is of relevance: the Circuit Court in Warsaw does not justify its decisions on ordering operational surveillance. This was confirmed by the Court at the hearing and in the letters submitted to the Constitutional Tribunal (see part I, point 3.11.2 of this statement of reasons). The confidential character of court activity related to the examination of applications concerning operational surveillance provided for in Article 27(11) of the Act on the Internal Security Agency, and the said lack of justification for decisions on the ordering of the surveillance, make it difficult to develop a consistent line of jurisprudence as to the interpretation of the imprecise phrase included in Article 5(1)(2)(b) of the said Act, which is the subject of this constitutional review. Therefore, it is impossible to eliminate the lack of clarity in the case of the provision thanks to the judicial interpretation, and – as a result – to inform individuals about the actual scope of restrictions on privacy and legitimate interference in the privacy of communication.
The Constitutional Tribunal shares the view presented by the participants in proceedings that – in the case where the legislator uses an imprecise expression, making reference to unspecified “offences against the essential economic interests of the state” – the actual limits of secret interference in the rights and freedoms of the individual are not set in a way which is sufficiently specified by the legislator, and they are determined by the organs of public authority which are responsible for applying the law. Such a state of affairs may not be reconciled with the constitutional principle of specificity of law (Article 2 of the Constitution) and the principle of a statutory form of restrictions on constitutional rights and freedoms (Article 31(3) of the Constitution).
In the assessment of the Constitutional Tribunal, it is not generally inconsistent with the Constitution to define the statutory tasks of an organ of the state – in this case, state security services which are competent to safeguard the internal security of the state and its constitutional order (Article 1 of the Act on the Internal Security Agency) – in a general way, with the use of imprecise terms. By contrast, it is something different to specify competence assigned to a given police force or state security service, which may result in secret interference in personal freedoms. Within that scope, as it has been indicated earlier (part III, point 5.1.1 of this statement of reasons), the legislator should show far-reaching precision so that statutory grounds for secret interference could be possible to be determined on the basis of the linguistic interpretation of statutory provisions, without any reference to the systemic or functional interpretation.
When an imprecise phrase is used, the challenged provision does not rule out the secret obtaining of information on persons also for the purpose of investigating and detecting or preventing offences which may hardly be regarded as serious, and ones that justify considerable interference in the realm of privacy and the privacy of communication. This issue was also pointed out by the participants in the review proceedings in the present case at the hearing, when they stressed the lack of any restrictions within the scope ratione materiae in the challenged provision, e.g. as to the detrimental effect of a committed offence or the extent of damage made.
The Tribunal also agrees with the stance held by the Ombudsman that if it is impossible to determine in exactly what situations the Internal Security Agency may use operational surveillance, relying on the premiss set out in Article 5(1)(2)(b) of the Act on the Internal Security Agency, then it may not be deemed that the said measure for obtaining information on persons is useful and necessary, within the meaning of Article 31(3) of the Constitution, in every statutorily admissible case.
Taking the above into consideration, the Constitutional Tribunal agrees with the allegations put forward by the applicant and the stance held by the participants in these proceedings, as regards the non-conformity of Article 27(1) in conjunction with Article 5(1)(2)(b) of the Act on the Internal Security Agency to Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution.
8.7. The assessment of the conformity of Article 27(1) in conjunction with Article 5(1)(2)(a) of the Act on the Internal Security Agency to 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.
In the context of operational surveillance carried out by the Internal Security Agency, the Ombudsman alleges that Article 27(1) in conjunction with Article 5(1)(2)(a) of the said Act, insofar as it refers to the wording “and other offences against national security”, as well as Article 27(1) in conjunction with Article 5(1)(2)(b) and (c) of the said Act make it impossible to precisely determine the circumstances of ordering operational surveillance. The Polish Penal Code and other statutes do not include the phrases ‘offences against national security’ and ‘offences against the essential interests of the state’. Thus, the challenged provisions do not meet the constitutional standard of specificity of law, making it impossible to determine the actual interference with the individual’s privacy. Bearing in mind the imprecise wording of the provisions, as well as the ensuing lack of possibility to precisely define the purposes of interference, in the Ombudsman’s opinion, the challenged provisions may not pass the test of proportionality. Since it is impossible to specify particular circumstances in which operational surveillance may be ordered, there is no possibility to assess whether the said regulation may bring about the intended effect. Moreover, this poses an arbitrary risk of interference with the individual’s privacy.
8.7.1. The provision of Article 5(1)(2)(a) reads as follows:
“The tasks of the Internal Security Agency shall comprise the investigation, prevention, detection of the following offences: espionage, terrorism and the unlawful disclosure or use of secret information as well as other offences against national security”.
The Ombudsman challenged the conformity of Article 27(1) in conjunction with Article 5(1)(2)(a) of the Act on the Internal Security Agency, insofar as it refers to the wording “and other offences against national security”, to Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution as well as to Article 8(1) of the Convention. In the applicant’s opinion, one may not indicate on the basis of that provision what offences justify the ordering of operational surveillance, which leads to interference with the right to the protection of privacy as well as the privacy of communication.
8.7.2. The Constitutional Tribunal draws attention to the fact that the term ‘offences against national security’ – unlike, for instance, ‘offences against the essential interests of the state’ – which is included in Article 5(1)(2)(b) of the Act on the Internal Security Agency, considered to be an unconstitutional provision in the present case, is known in the legal system. Also, it does not raise any considerable doubts as regards its interpretation. A provision that refers to that term is, in particular, Article 112(1) of the Penal Code, in accordance with which – regardless of regulations that are binding in the area where a prohibited act was committed – a relevant Polish criminal-law statute shall be applied to a Polish citizen or a foreigner in the case of the commission of an offence against the internal or external security of the Republic of Poland.
8.7.3. So far, in its previous jurisprudence, the Tribunal has accepted a varied degree of specificity of provisions related to interference in the rights and freedoms of the individual. What is of significance here is the Tribunal’s judgment in the case K 51/07 (part III, point 6.1 of this statement of reasons), in which the Constitutional Tribunal presented the view, inter alia, that the requirement of sufficient specificity of law is met by Article 70a(1) of the Act of 9 June 2006 – the Introductory Law to the Act on the Military Counter-Intelligent Service and the Military Intelligence Service as well as the Act on the service of the functionaries of the Military Counter-Intelligence Service and the Military Intelligence Service (Journal of Laws ‑ Dz. U. No. 104, item 711, as amended; hereinafter: the Introductory Law to the Act on the Military Counter-Intelligence Service). The said provision stipulated that the Chairperson of the Verification Commission should, within the time-limit set by the Prime Minister, should prepare a report, inter alia, on “other activities that exceed the scope of the defence system of the state and the security of the Armed Forces of the Republic of Poland”. In the said judgment, the Constitutional Tribunal stated that: “the terms ‘the defence system of the state’ and ‘the security of the Armed Forces of the Republic of Poland’ are sufficiently precise for the purpose of specifying the scope of activity carried out by the organs of public authority. Every signifier in a natural language, to some extent, lacks sufficient specificity, which stems from the very nature of the language itself. The attainment of a higher degree of precision, when editing the texts of normative acts, is not possible. The risk of arbitrary action taken by the organs of public authority appears primarily in situations where the law does not provide for a judicial review of the application of law by the organs of the executive branch”.
For that reason, in the case K 51/07, the Tribunal did not declare that there was an infringement of the principle of the specificity of law (Article 2 of the Constitution). The argument that weighed in favour of the unconstitutionality of Article 70a in that case was the fact that the legislator had ruled out the judicial review of decisions taken by the Head of the Verification Commission (Article 45(1) of the Constitution) (see part III, point 4.2, 4.7, 4.8 and 6.1 of this statement of reasons for the judgment in the case K 51/07).
8.7.4. The judicial review of operational and investigative activities is provided for in Article 27(1) of the Act on the Internal Security Agency, challenged in the present case. Hence, in the case under examination, the Tribunal maintains the stance held in the case K 51/07. It is also applicable to the phrase ‘offences against national security’.
8.7.5. When challenging Article 27(1) in conjunction with Article 5(1)(2)(a) of the Act on the Internal Security Agency, insofar as it comprises the phrase ‘and other offences against national security’, the Ombudsman only makes reference to judgments of the Constitutional Tribunal and the ECHR that concerned the right to privacy as well as constitutional and convention requirements for the specificity (quality) of the law that permits interference in one of the most basic rights and freedoms of the individual. The applicant does not carry out an attempt to specify the legal norm included in Article 5 of the Act on the Internal Security Agency. He cited certain judgments of the ECHR (insufficiently precisely and without any indication of relevant paragraphs of the judgments) which focused on the need for a judicial review of decisions issued by police forces or state security services for the purpose of the secret obtaining of information on individuals, which interfered with the privacy of those individuals, but which was indispensable in the circumstances of a given case. In the case of Klass and Others v. Germany (the judgment of 6 September 1978), this is addressed in paragraphs 56-57 and 73-74; in the case of Malone v. the United Kingdom (the judgment of 2 August 1984), this is discussed in paragraphs 69, 79, 86; in the case of Kruslin v. France (the judgment of 24 April 1990), this is mentioned in paragraphs 30, 34-35; in the case of Uzun v. Germany (the judgment of 2 September 2010), this is discussed in paragraph 63.
8.7.6. The Public Prosecutor-General – who pursuant to Article 27(1) of the Act on the Internal Security Agency, upon a written application of the Head of the Internal Security Agency, requests (or does not request – without any right of the Head of the Internal Security Agency to complaint) the Circuit Court in Warsaw to determine whether operational surveillance will at all be admissible in an operational case against a given Polish citizen or foreigner – did not put forward a single argument to the Tribunal with regard to the way of applying the challenged provisions. He did not indicate that the Public Prosecutor-General, when deciding on the referral of the application submitted by the Head of the Internal Security Agency, or the Circuit Court in Warsaw, when permitting operational surveillance in a case concerning the investigation or detection of ‘other offences against national security’, encountered problems arising from the insufficient specificity of that term.
8.7.7. Taking the above into account, the Tribunal stresses that when reviewing the constitutionality of Article 27(1) in conjunction with Article 5(1)(2)(a) of the Act on the Internal Security Agency, insofar as it comprises the wording “and other offences against national security”, in the light of Article 2, Article 47 and Article 49 of the Constitution, one may not overlook a norm that arises from the entire Article 5 of the Act. The following conclusions may be drawn from the analysis of that provision, which delineates the catalogue of the tasks of the Internal Security Agency:
8.7.7.1. The statutory regulation of entire Article 5 and a relation between that provision and Article 27 of the Act on the Internal Security Agency, including paragraph 1 above, is comprehensive, consistent, as well as reasonable in terms of its construct, axiology and praxeology.
8.7.7.2. From the point of view of determining the actual normative content of the legal regulation, it is erroneous to single out only paragraph 1(2)(a) from the content of Article 5 of the Act on the Internal Security Act. This leads to the inappropriate assessment of the constitutionality of that comprehensive provision.
8.7.7.3. The comprehensiveness of the regulation of entire Article 5 of the Act on the Internal Security Agency results from the fact that the lawmaker has identified protected values and specified the subject of activity carried out by the Internal Security Agency by setting the tasks of that organ of security police which is competent in matters of the internal security and constitutional order of the Polish state.
8.7.7.4. Values safeguarded in Article 5 of the Act on the Internal Security Agency are rendered in the content of the following terms: national security, the internal security of the state as well as its constitutional order, sovereignty and the international position of the state, the integrity of its territory, the defence system of the state, the essential economic interests of the state, as well as inter alia public morality and the effective functioning of the institutions of the state (para 1(2)(c)), the international-law obligations of the state with the axiological grounds thereof (para 1(5)).
Due to their very nature, the said constitutional values may not be specified in detail in a statute, and hence the lawmaker’s need to use a general term which “encompasses” particular value.
8.7.7.5. What ensures the consistency of the regulation of Article 5 of the said Act is the description of the subject thereof as well as the catalogue of the types of tasks assigned to the Internal Security Agency, as well as their allocation to the overlapping phases (the stages of activity).
From the point of view of the constitutional review, particular importance should be assigned to the correlation in Article 5(1)(1)(2) between tasks within the scope of the indicated constitutional values and the identification and prosecution of perpetrators; at both of these stages of carrying out tasks, the legislator has assumed consistent (equivalent) temporal and substantive characteristics of the tasks: “investigation, prevention, counteraction” (point 1) and “investigation, prevention and detection” (point 2).
8.7.7.6. The legislator has taken care of the consistency of activities that are aimed at carrying out the tasks, using wording which suggests supplementation (point 1 “in particular…”, point 2(a) “and other offences against national security”), which is the only one possible when it comes to the factual and axiological richness of the subject of the regulation. Proposing that the legislator should exhaustively enumerate the types of offences in isolation from the main qualifier (“against national security”), if this would at all be possible then it would border with the limits of appropriate legislation.
8.7.7.7. The complete individualisation of offences in the context of the norm included in Article 5 of the Act on the Internal Security Agency would lead to leaving out facts and legal aspects that “are against national security”, which would directly infringe Article 1 of the Constitution as well as could directly and indirectly undermine the freedoms of Polish citizens that are safeguarded by the principle of citizens’ trust in the state, including – in this context – the state’s capacity to effectively protect values mentioned in Article 5(1) of the Act.
8.7.7.8. Normative content, inter alia the typological scope of offences is, also specified by a comprehensive list of all types of offences in Article 5(1)(2)(a)-(e) of the Act on the Internal Security Agency, assigned with the qualifier “national security” and the wording in paragraph 1; in fact, the normative content is precisely specified by the set of all offences, which also includes other offences; and it is not open to include offences unrelated to the content of the provision.
8.7.7.9. The praxeological rationality of the relation between Article 5(1)(2)(a) and Article 27(1) of the Act on the Internal Security Agency is described by the relation of the subject and the form, but the legislator has equipped the Circuit Court in Warsaw with the instruments for determining the admissibility of operational surveillance, preceded by an extensive preliminary procedure (an application of the Head of the Internal Security Agency; a written permission by the Public Prosecutor-General; the court’s power to request additional submissions and explanations).
8.7.7.10. The term ‘national security’ as well as the term ‘private life’ are broad terms that defy exhaustive definitions. They are of key significance when it comes to weighing an interest of the individual and a common interest in the realm of security, including the legal security of every person staying within the territorial jurisdiction of a state ruled by law. As regards weighing those interests in the Polish legal system, a key role is played by the Circuit Court in Warsaw, which adjudicates – upon the application filed by the Head of the Internal Security Agency – on the admissibility of operational surveillance in a given case (see also paras 43 and 77 in the above-cited ruling by the ECHR in the case of Uzun v. Germany).
8.7.8. At the end of that procedure, there is the Circuit Court in Warsaw, which is constitutionally obliged to independently consider the content of the said application, together with submissions that justify a need to resort to operational surveillance, filed by the Head of the Internal Security Agency, after obtaining the written permission from the Public Prosecutor-General, in the light of presented – and, where necessary, supplemented by the applicant – actual circumstances of an operational case: investigation / prevention / detection of a prohibited act or acts that are against national security. The said acts, even if in particular cases they constitute misdemeanours, they are deemed to pose a threat to individual / national / communal interests protected in chapters XVI, XVII and XVIII of the Penal Code.
The said court adjudicates not only on the permission, but also on the purpose, timing and type of the said operational surveillance. When adjudicating, the Circuit Court in Warsaw has an obligation, in every case, to weigh values specified in the following higher-level norms for the review indicated by the applicant: Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution.
8.7.9. In the letters presented to the Tribunal, the Ombudsman and the Public Prosecutor-General did not address those arguments.
8.7.10. On the basis of the above arguments, the Tribunal adjudicates that Article 27(1) in conjunction with Article 5(1)(2)(a) of the Act on the Internal Security Agency, challenged in this point, insofar as it comprises the wording “and other offences against national security”, is consistent with the indicated higher-level norms for the review: 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.
8.8. The assessment of the conformity of Article 27(1) in conjunction with Article 5(1)(2)(c) of the Act on the Internal Security Agency to 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.
8.8.1 Pursuant to Article 5(1)(2)(c):
“The tasks of the Internal Security Agency shall comprise the investigation, prevention and detection of the offences of corruption in the case of persons performing public functions referred to in Articles 1 and 2 of the Act of 21 August 1997 on restrictions on the conduct of economic activity by persons performing public functions (Journal of Laws ‑ Dz. U. of 2006 No. 216, item 1584, of 2008 No. 223, item 1458 as well as of 2009 No. 178, item 1375), if this may be against national security”.
8.8.2. The Constitutional Tribunal disagrees with arguments presented by the Ombudsman in the context of those provisions. Although the applicant is right arguing that the phrase used in the challenged provision “if this may be against national security” may cause certain difficulties when it comes to interpretation, still – according to the Tribunal – there are no sufficient bases to declare the exceeding of a constitutionally acceptable degree to which a given regulation interfering in the right to privacy and in the privacy of communication may be imprecise. Above all, the legislator has sufficiently precisely specified the type of an offence with regard to which operational surveillance may be ordered. Pursuant to Article 5(1)(2)(c) of the Act on the Internal Security Agency, these may only be “the offences of corruption”. The Constitutional Tribunal does not agree with the reservations raised by the applicant and participants in the proceedings that, allegedly, it is impossible to define the term ‘corruption’ in the light of the binding legislation. Although the legislator has not expressly used the said term in the Penal Code, the term is well-known in the Polish legal system. Thus, it is possible to determine what actions display the characteristics of the offences of corruption (see Article 2 of the Central Anti-Corruption Bureau Act or the Criminal Law Convention on Corruption, signed in Strasbourg on 27 January 1999, Journal of Laws ‑ Dz. U of 2005 No. 29, item 249). Resorting to terms used in a relevant code would definitely enhance the protection of individuals. However, in the Tribunal’s opinion, this is not absolutely constitutionally required.
The Constitutional Tribunal points out that the legislator – apart from specifying the type (nature) of the offence – also in more detail specified the scope ratione personae of the offence of corruption. Indeed, he indicates that what this means such offences of corruption that are committed by persons enumerated in Articles 1 and 2 of the Act on restrictions on the conduct of economic activity by persons performing public functions.
The Tribunal states that the wording in Article 5(1)(2)(c) of the Act on the Internal Security Agency, which has been challenged by the applicant, narrows down the scope ratione materiae of operational surveillance, rather than extends it. Indeed, not every offence of corruption committed by persons performing public functions, referred to in Articles 1 and 2 of the Act on restrictions on the conduct of economic activity by persons performing public functions, may justify the ordering of operational surveillance, but only such that meets the following specific requirement: may be against national security. Despite the allegations raised by the applicant, the challenged provision does not weaken the protection of the individual against the arbitrary interference of the organs of public authority; in fact, the provision enhances the protection. Consequently, Article 27(1) in conjunction with Article 5(1)(2)(c) of the Act on the Internal Security Agency meets the minimum constitutional requirements. Also, it may not be deemed that there has been an infringement of Article 8(1) of the Convention.
Moreover, the applicant has not proved that the challenged provision – by making it possible to order operational surveillance for the purpose of investigation and detection of the offences of corruption committed by particular persons performing public functions, and at the same time being against national security, or by preventing such offences – constitutes disproportionate interference in the freedom and privacy of communication. The phenomenon of corruption has been considered in the jurisprudence of the Constitutional Tribunal to be detrimental to the public interest, especially to the efficiency and diligence of public institutions, which is required by the Constitution. Hence, the legislator is competent to prevent and counteract such phenomena (see the judgments of the Constitutional Tribunal of: 8 October 2001, ref. no. K 11/01, OTK ZU No. 7/2001, item 210; 13 July 2004, ref. no. K 20/03, OTK ZU No. 7/A/2004, item 63; 23 June 2009, ref. no. K 54/07). Thus, it may not be possible to assess that the offences of corruption that are against national security may not, in the light of constitutional norms, principles and values, justify the secret obtaining of information on persons. Therefore, the Tribunal concludes that the applicant has not overturned the presumption of constitutionality in the context of the challenged provision.
Taking the above into consideration, the Constitutional Tribunal deems that Article 27(1) in conjunction with Article 5(1)(2)(c) of the Act on the Internal Security Agency is consistent with Article 2, Article 47, Article 49 in conjunction with Article 31(3) of the Constitution as well as Article 8 of the Convention.
8.9. The assessment of the conformity of Article 31(1) in conjunction with Article 5(1)(1)(a) of the Act on the Military Counter-Intelligence Service to Article 2, Article 47 and Article 49 in conjunction with Article 31(1) of the Constitution as well as Article 8 of the Convention.
8.9.1. Challenged Article 31(1) of the Act on the Military Counter-Intelligence Service reads as follows:
“When resorting to operational and investigative activities, undertaken by the Military Counter-Intelligence Service for the purpose of carrying out tasks specified in Article 5, when other measures proved to be ineffective or redundant, the court – upon a written application by the Head of the Military Counter-Intelligence Service, filed after obtaining permission from the Public Prosecutor-General – may, by issuing a decision, order the carrying out of operational surveillance”.
By contrast, Article 5(1)(1)(a) of the Act on the Military Counter-Intelligence Service stipulates as follows:
“The tasks of the Military Counter-Intelligence Service shall comprise the investigation, prevention and detection of offences committed by soldiers in service, functionaries of the Military Counter-Intelligence Service and the Military Intelligence Service, as well as employees of the Armed Forces of the Republic of Poland and of other organisational units of the Ministry of National Defence (…) against peace and humanity, and war crimes set out in chapter XVI of the Act of 6 June 1997 – the Penal Code (Journal of Laws ‑ Dz. U. No. 88, item 553, as amended) as well as other statutes and international agreements”.
The Public Prosecutor-General challenges Article 31(1) in conjunction with Article 5(1)(1)(a) of the Act on the Military Counter-Intelligence Service, insofar as it refers to the wording “as well as other statutes and international agreements” (Journal of Laws ‑ Dz. U. No. 88, item 553, as amended).
8.9.2. The Constitutional Tribunal does not agree with those allegations raised by the Public Prosecutor-General. Indeed, the legislator has specified the scope ratione personae and ratione materiae of offences in the case of which investigation, detection and prosecution warrant ordering operational surveillance. However, he has not indicated particular normative acts in which such actions are penalised. Yet, despite the applicant’s assertions, such rendition makes it possible to determine who, and in what situations, is to be subjected to restrictions within the scope of exercising constitutional rights and freedoms. At the same time, the legislator has pointed out that he means a number of offences committed only by specified persons (i.e. soldiers in service, functionaries of the Military Counter-Intelligence Service and the Military Intelligence Service, as well as employees of the Armed Forces of the Republic of Poland and of other organisational units of the Ministry of National Defence). Additionally, the legislator stresses that operational surveillance may only be ordered for a specified purpose such as the investigation and detection of offences against specific interests protected by law – namely, peace and humanity – and war crimes, as well as the prevention of such offences. In other words, he specifies, in the statute, the type (nature) of offences justifying operational surveillance. The only thing he does not specify in greater detail is in what normative acts specifically the said offences are penalised, apart from the explicitly indicated chapter XVI of the Penal Code. Determining which offences are meant should not pose excessive difficulties (see the Charter of the International Military Tribunal – Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis ; Journal of Laws ‑ Dz. U. of 1947 No. 63, item 367).
There is no doubt that offences against peace and humanity as well as war crimes constitute the most serious threats to interests enshrined in the Constitution (which may be confirmed by the lack of time-limitation for the prosecution of offences against peace and humanity in Article 43 of the Constitution or by the content of Article 55(3) of the Constitution). The prevention of those offences, as well as the detection and prosecution thereof may – in the opinion of the Constitutional Tribunal – justify the use of various methods for the secret obtaining of information by state security services. As a result, it is difficult to determine that the use of operational surveillance in this case constitutes disproportionate interference in the rights and freedoms guaranteed by Articles 47 and 49 of the Constitution. Also, it is difficult to find rational arguments in support of the allegation about an infringement of Article 8(1) of the Convention.
Suggested by the Public Prosecutor-General, the introduction of a static reference to particular passages, in a relevant criminal-law statute, which specify the types of offences would undoubtedly enhance the level of protection of the individual against a potential risk of arbitrariness on the part of the organs of public authority. However, the said argument determines neither the insufficient specificity of the challenged regulation nor disproportionate interference in the constitutional right to the protection of privacy and the privacy of communication.
Taking the above into account, the Constitutional Tribunal deems that Article 31(1) in conjunction with Article 5(1)(1)(a) of the Act on the Military Counter-Intelligence Service, insofar as it comprises the wording “as well as other statutes and international agreements” is 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.
8.10. Other remarks.
As a side remark, the Constitutional Tribunal draws attention to particular editorial mistakes concerning Article 19(1) of the Act on the Police, Article 9e(1) of the Act on the Border Guard and Article 31(1) of the Act on the Military Police. Firstly, due to punctuation marks used in those provisions – despite the legislator’s intentions – the purpose of operational surveillance may become opaque. Thus, the wording of Article 19(1) of the Act on the Police would suggest that operational surveillance may be ordered not for the purpose of obtaining and recording the evidence of premeditated offences prosecuted ex officio, but for the purpose of “obtaining and recording evidence prosecuted ex officio”. In other words, what follows from this is an illogical conclusion that in the said provision the legislator means ‘evidence prosecuted ex officio’, and not ‘offences prosecuted ex officio’. Similar editorial mistakes occur in Article 9e(1) of the Act on the Border Guard and Article 31(1) of the Act on the Military Police. Secondly, in the light of the wording of Article 31(1)(17) of the Act on the Military Police, it is not sufficiently clear whether the legislator’s intention is to permit the ordering of operational surveillance for the purpose of preventing only premeditated offences prosecuted ex officio on the basis of international agreements, or all offences prosecuted on the basis of such normative acts, as well as for the purpose of detecting the former or the latter type of offences, determining the perpetrators thereof as well as obtaining and recording evidence related thereto.
When adjusting the statutory regulation of operational and investigative activities to the constitutional standard, the legislator should apply due diligence to properly draft the wording of provisions.
9. The way of conducting operational surveillance.
9.1. The second constitutional issue, raised in the Ombudsman’s application of 29 June 2011, is the way in which operational surveillance is carried out with the use of technical measures. This is regulated by: 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 Fiscal Supervision, 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 Central Anti-Corruption Bureau Act and Article 31(4)(3) of the Act on the Military Counter-Intelligence Service. The Ombudsman argues that Article 2 and Article 47 in conjunction with Article 31(3) of the Constitution have been infringed. In the statement of reasons for his application, he also points out other constitutional provisions that guarantee, inter alia, the freedom and privacy of communication (Article 49), the inviolability of the home (Article 50), informational self-determination (Article 51), as well as the freedom of movement (Article 52(1) of the Constitution). In the applicant’s opinion, the challenged provisions are inconsistent with the principle of specificity of law, as they do not specify technical measures that may be used by police forces and state security services for the purpose of the secret obtaining of information on individuals. The constitutional standard would be met if a relevant statute precisely enumerated legally admissible technical measures which particular police forces and state security services may resort to, as well as if the statute precisely indicated what kind of information and evidence about the individual may be obtained with those measures. The imprecision of regulation leads to a situation where eligible entities may obtain virtually any kind of information on the individual that pertains to every realm of his/her life activity.
9.2. The assessment of the conformity of 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 Fiscal Supervision, 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 Central Anti-Corruption Bureau Act and Article 31(4)(3) of the Act on the Military Counter-Intelligence Service to Article 2 and Article 47 in conjunction with Article 31(3) of the Constitution.
9.2.1. The challenged provisions read as follows:
Article 19(6)(3) of the Act on the Police:
“Operational surveillance shall be carried out in secret and shall consist in: (…) applying technical measures that make it possible to secretly obtain information and evidence as well as to record them, including the content of telephone conversations and other information transferred via telecommunications networks”.
Article 9e(7)(3) of the Act on the Border Guard:
“Operational surveillance shall be carried out in secret and shall consist in: (…) applying technical measures that make it possible to secretly obtain information and evidence as well as to record them, including images, the content of telephone conversations and other information transferred via telecommunications networks”.
Article 36c(4)(3) of the Act on Fiscal Supervision:
“Operational surveillance shall be carried out in secret and shall consist in: (…) applying technical measures that make it possible to secretly obtain information and evidence as well as to record them, including images, the content of telephone conversations and other information transferred via telecommunications networks”.
Article 31(7)(3) of the Act on the Military Police:
“Operational surveillance shall be carried out in secret and shall consist in: (…) applying technical measures that make it possible to secretly obtain information and evidence as well as to record them, including images, the content of telephone conversations and other information transferred via telecommunications networks”.
Article 27(6)(3) of the Act on the Internal Security Agency:
“Operational surveillance shall be carried out in secret and shall consist in: (…) applying technical measures that make it possible to secretly obtain information and evidence as well as to record them, including the content of telephone conversations and other information transferred via telecommunications networks”.
Article 17(5)(3) of the Central Anti-Corruption Bureau Act:
“Operational surveillance shall be carried out in secret and shall consist in: (…) applying technical measures that make it possible to secretly obtain information and evidence as well as to record them, including the content of telephone conversations and other information transferred via telecommunications networks”.
Article 31(4)(3) of the Act on the Military Counter-Intelligence Service:
“Operational surveillance shall be carried out in secret and shall consist in: (…) applying technical measures that make it possible to secretly obtain information and evidence as well as to record them, including the content of telephone conversations and other information transferred via telecommunications networks”.
9.2.2. The challenged provisions regulate the way of carrying out operational surveillance by applying “technical measures”. With reference to all provisions challenged within that group, the legislator has indicated, for instance, what kinds of information and evidence may be acquired on the basis of those provisions. These are the following: “the content of telephone conversations”, as well as “other information transferred via telecommunications networks”. The Act on the Border Guard, the Act on Fiscal Supervision and the Act on the Military Police additionally mention “images” as content that needs to be obtained and recorded. What follows from the linguistic interpretation of the said provisions is that the said measures should be specific in character. On the one hand, they are supposed to be based on technical solutions. Thus, it is impossible to obtain information on their basis in a different way (e.g. by following someone, by taking out correspondence from a postbox). On the other hand, the said measures must make it possible to obtain information on the individual and – cumulatively – record it so that it could be used later (e.g. for a further criminal-law analysis or in criminal-law proceedings). Such wording of the challenged provisions rules out the admissibility of applying – in the course of operational surveillance, carried out pursuant to 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 Fiscal Supervision, 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 Central Anti-Corruption Bureau Act and Article 31(4)(3) of the Act on the Military Counter-Intelligence Service – measures that are technical in character, but will not make it possible to record the information. For that very reason, the applicant’s allegation that the catalogue of technical measures that may be applied by police forces and state security services is unlimited may not be taken into account. As it has been indicated earlier (part III, point 5.1.3.2 of this statement of reasons), from the point of view of the specificity of law and the principle that constitutional rights and freedoms are to be restricted by statute, it is not absolutely necessary to have a closed catalogue of technical measures for operational surveillance. In some cases, this may be detrimental to the efficiency and effectiveness of operational activities carried out by police forces and state security services, considering the fact that the methods of transferring information are increasingly sophisticated. By contrast, this could, in turn, limit the efficient functioning of the organs of the state that are responsible for public security and public order, which would consequently result in the state’s failure to fulfil one of its basic tasks i.e. the protection of citizens (Article 5 of the Constitution). Bearing in mind requirements concerning the statutory regulation of operational and investigative activities (see part III, point 5.1 of this statement of reasons), the Tribunal does not share the view held by the applicant that the challenged provisions are unconstitutional for the reason that they do not specify a closed catalogue of technical measures as well as information and evidence obtained via those measures.
9.2.3. In his application of 29 June 2011, the Ombudsman requests not only that a statutory provision should determine the types of information and evidence that could be obtained in the course of operational surveillance, by applying technical measures, but also that the legislator should specify what aspects (spheres) of privacy may be covered by such surveillance. In the opinion of the Constitutional Tribunal, the reservations are unjustified. The fact what sphere of privacy is related to obtained information is not usually dependent on the form of communication, and on the ways of obtaining information in the course of operational surveillance, but on the content of messages. The specific content of recorded messages may only determine whether the information may refer to family, intimate or professional life. Therefore, it does not seem to be possible to a priori determine the spheres of privacy with which interference may be made on the basis of the challenged provisions. Also, as aptly stated by the Marshal of the Sejm, in the letter of 2 March 2012, “the exclusion or narrowing down of operational surveillance with regard to certain realms of private life does not appear to be justified in the light of the usefulness of such surveillance. Indeed, one should bear in mind that operational surveillance serves the prevention or detection of unlawful activity, or the identification of perpetrators thereof, and that the said unlawful activity may be linked to any aspects of privacy, and hence it would not be right to exclude any of those aspects from the scope of the secret obtaining of information” (p. 38). For instance, information concerning sexual life may be of significance for the prevention of an offence provided for in Article 200(1) of the Penal Code (a sexual intercourse with a minor under the age of 15), the detection and prosecution thereof, whereas information on a given person’s financial situation may be of relevance when it comes to offences that are related to corruption and which fall within the scope of Article 19(1)-(7) of the Act on the Police.
Moreover, one should take account of the fact that the other provisions specifying the ways of carrying out operational surveillance, i.e. the surveillance of correspondence and the inspection of the content of parcels, challenged by the Ombudsman, also lack sufficient specificity as regards the indication of the aforementioned spheres of privacy.
9.2.4. The Constitutional Tribunal also draws attention to one more circumstance that affects the assessment of constitutionality of the challenged provisions. In the Tribunal’s opinion, the scope of the regulation of 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 Fiscal Supervision, 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 Central Anti-Corruption Bureau Act as well as Article 31(4)(3) of the Act on the Military Counter-Intelligence Service is narrower than this is assumed in the doctrine of law (see part III, 6.1.3 of this statement of reasons). As a result, the catalogue of information and evidence that may be obtained on the basis thereof is also narrower in scope.
In the literature on the subject, what is juxtaposed is the requirement of “the surveillance of correspondence” – referred to in Article 19(6)(1) of the Act on the Police, Article 9e(7)(1) of the Act on the Border Guard, Article 36c(4)(1) of the Act on Fiscal Supervision, Article 31(7)(1) of the Act on the Military Police, Article 27(6)(1) of the Act on the Internal Security Agency, Article 17(5)(1) of the Central Anti-Corruption Bureau Act as well as Article 31(4)(1) of the Act on the Military Counter-Intelligence Service – with “the application of technical measures”, referred to in the challenged provisions (see part III, point 6.1 of this statement of reasons). It is assumed that the term ‘correspondence’ is narrow in scope and covers only the exchange of written messages. By contrast, the surveillance of electronic correspondence, including that transferred via the Internet (email) or telecommunications networks (text and multimedia messages, etc.) may be ordered only on the basis of the following provisions: 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 Fiscal Supervision, 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 Central Anti-Corruption Bureau Act, and Article 31(4)(3) of the Act on the Military Counter-Intelligence Service. Such a stance was also held by the representatives of police forces and state security services at the hearing.
In the Tribunal’s opinion, such a narrowing interpretation is unjustified. What follows from the systemic interpretation of the challenged provisions is that they supplement and extend the possibilities of obtaining information and evidence beyond what is provided for in Article 19(6)(1) and (2) of the Act on the Police, Article 9e(7)(1) and (2) of the Act on the Border Guard, Article 36c(4)(1) and (2) of the Act on Fiscal Supervision, Article 31(7)(1) and (2) of the Act on the Military Police, Article 27(6)(1) and (2) of the Act on the Internal Security Agency, Article 17(5)(1) and (2) of the Act of the Central Anti-Corruption Bureau Act or Article 31(4)(1) and (2) of the Act on the Military Counter-Intelligence Service. In other words, the challenged provisions make it possible to review other information than “the content of correspondence” or “the content of parcels”. In the Tribunal’s opinion, the phrase ‘the surveillance of correspondence’ is not limited to the traditional form of exchanging information, but it comprises every method of transferring information between individuals regardless of the form (traditional postal services, electronic mail, text or multimedia messages, etc.).
9.2.5. The Constitutional Tribunal finds no arguments for ruling that the challenged provisions have infringed Article 2 and Article 47 in conjunction with Article 31(3) of the Constitution. At the same time, the Tribunal agrees with the view presented in the letter of 2 March 2012 by the Marshal of the Sejm, which indicates that there is a sufficient level of procedural guarantees that counteract any actions which exceed the scope of competence assigned to the organs of public authority that are authorised to carry out operational surveillance. In particular, the Tribunal points out that the ordering of operational surveillance takes place in accordance with a multi-step procedure. Firstly, the legislator requires that the head of a given police force or state security service should file a written application. Secondly, before the application is lodged with a court, permission must be granted by the Public Prosecutor-General or a competent public prosecutor in a given circuit, depending on the location of the office of the authority applying for the ordering of the surveillance. Thirdly, only after obtaining permission from the competent public prosecutor, it is possible to refer the application to the court. Thus, the scope of discretion of police forces and state security services has been limited, as regards interference in the realm of the privacy of the individual. Also, what is of relevance is the precise way of specifying formal requirements in a statute with regard to such interference. The statute must inter alia contain: the description of an offence with the indication, whenever possible, of its legal category; circumstances that justify the need to carry out operational surveillance, including the recognised ineffectiveness or uselessness of other measures, which makes it possible to unambiguously determine the scope ratione personae or the scope ratione materiae within which operational surveillance is to be carried out, as well as the purpose, timing and type of conducted operational surveillance (see Article 19(7) of the Act on the Police). Moreover, a public authority is to present the circuit court with material that justifies the need to carry out the said surveillance in a specific case and with regard to persons indicated in the application (Article 19(1a) of the Act on the Police).
What follows from the above provisions of the statutes regulating operational surveillance is that there is a vital formal requirement for the admissibility of the application for the ordering of operational surveillance; namely, an authority lodging the application is to define “the way of carrying out operational surveillance” and “the type of operational surveillance”. As it follows from information provided by the representatives of police forces and state security services that were present at the hearing, this is specified. The Tribunal holds the view that, regardless of the way of applying the law, the content of statutory provisions and executive acts issued on the basis thereof provide for the obligation to indicate by an authority applying for the ordering of operational surveillance which of the three statutory forms of surveillance the said authority requests (i.e. the surveillance of correspondence, the inspection of the content of parcels, or surveillance that involves other technical measures), as well as what the said surveillance would consist in and via what means it would be carried out. The phrase ‘the way of carrying out operational surveillance’ also makes it possible to assess what types of information could be obtained in the course of the surveillance (e.g. the records of telephone calls, text or multimedia messages, and the registration of the routes of relocation).
The Constitutional Tribunal draws attention to the fact that a public authority that applies for the ordering of surveillance is obliged to indicate not just a way of carrying out the said surveillance, but only the way which is provided for by law. This stems from the constitutional principle that public authorities shall function on the basis of, and within the limits of, the law (Article 7 of the Constitution). Therefore, the binding law needs to specify ‘the ways of carrying out operational surveillance’ out of which the authority applying for the surveillance is to indicate the way that is recommended in a given case. This also corresponds to requirements put forward by the European Court of Human Rights, which has emphasised on a number of occasions that the measures of secret surveillance should be prescribed by law (see part III point 2 of this statement of reasons).
The legislator has not specified elements that must be included in a court decision on the ordering of operational surveillance, in contrast to requirements set out for the application to be filed by the head of a competent police force or state security service. As it has been determined by the Constitutional Tribunal in the course of these proceedings (see part I, point 3.11.1 of this statement of reasons), the jurisprudence of circuit courts reveals discrepancies in court practice as regards indicating, in a decision on the ordering of operational surveillance, what type of a technical measure is to be used out of the technical measures referred to in: 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 Fiscal Supervision, 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 Central Anti-Corruption Bureau Act as well as Article 31(4)(3) of the Act on the Military Counter-Intelligence Service. In principle, courts do not indicate a technical measure in the decision, but merely mention that surveillance will involve the use of a technical measure. Despite the lack of consistent practice in the jurisprudence of courts in that respect, the Constitutional Tribunal has deemed that it is sufficient, for the realisation of constitutional guarantees, to adopt such an interpretation of the challenged provisions that the authority ordering operational surveillance is obliged to individualise a technical measure to be used in a given case. From the point of view of constitutional requirements, it is admissible to use only such a measure which has been provided for by law and which may be used by an authority applying for the ordering of operational surveillance. Moreover, the Tribunal draws attention to the fact that the position of courts – as public authorities that are independent of the executive branch of government and which are to safeguard subjective rights and freedoms enshrined in the Constitution (Article 10 and Article 77(2) of the Constitution) – makes them fit to conduct a comprehensive assessment of applications for the ordering of operational surveillance, and thus to precisely delineate the scope and ways of obtaining information. Consequently, this entails that a court decision should indicate a technical measure by means of which information and evidence on the individual are to be obtained.
Additionally, the Constitutional Tribunal notes that in the light of information provided by the presidents of the courts of appeal (see part I, point 3.11.1 of this statement of reasons), the number of judges that are responsible for the assessment of the applications for the ordering of operational surveillance does not indicate that there has been any systemic dysfunctionality as to the assessment of submissions filed with a given court. Hence, there are no grounds to state that supervision exercised by courts, in its present form, is illusory and ineffective, and hinders or rules out a thorough review of applications for the ordering of operational surveillance in terms of the lawfulness and adequacy of technical measures which are applied for.
Taking the above into consideration, the Constitutional Tribunal states 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 Fiscal Supervision, 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 Central Anti-Corruption Bureau Act as well as Article 31(4)(3) of the Act on the Military Counter-Intelligence Service – construed in the way that, in a given case, a competent authority ordering operational surveillance is obliged to indicate the type of a technical measure prescribed by law for obtaining information and evidence as well as for recording them – are consistent with Article 2 and Article 47 in conjunction with Article 31(3) of the Constitution.
10. Granting access to telecommunications data.
10.1. The third constitutional issue concerns the disproportionate restriction of the right to the protection of privacy and the privacy of communication by the statutory regulation of a procedure for providing police forces and state security services with telecommunications data referred to in Article 180c and Article 180d of the Telecommunications Act. This is regulated by the following: 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 Fiscal Supervision, 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 Anti-Corruption Bureau Act, Article 32(1)(1) of the Act on the Military Counter-Intelligence Service and Article 75d(1) of the Act on the Customs Service.
In the application of 1 August 2011, the Ombudsman requests the Tribunal to determine 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 Fiscal Supervision, 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 Central Anti-Corruption Bureau Act and Article 32(1)(1) of the Act on the Military Counter-Intelligence Service are inconsistent with Article 49 in conjunction with Article 31(3) of the Constitution as well as Article 8 of the Convention. With regard to that category of provisions, the applicant formulates the following allegations. Firstly, the challenged provisions make it possible for the police, the Border Guard and the Military Police to obtain telecommunications data for the purpose of preventing or detecting any prohibited acts that constitute offences, regardless of the seriousness of a given prohibited act. The fiscal intelligence service may be granted access to those data in order to prevent all fiscal offences and the offences of corruption – referred to in Articles 228-231 of the Penal Code, committed by persons employed or doing service in the organisational units that are subject to the competent minister in matters concerning public finance – as well as any breaches of national and Community provisions on customs duties, i.e. actions which may not even be offences in the light of the law, as well as to detect such offences and torts. By contrast, the functionaries of the Central Anti-Corruption Bureau, the Military Counter-Intelligence Service and the Internal Security Agency may obtain these data for the purpose of carrying out all their statutory tasks. Secondly, the obtaining of telecommunications data on the basis of the challenged provisions is not subsidiary in character. The said obtaining of the data is admissible in every case, whenever this is requested by competent police forces and state security services. What constitutes a prerequisite for gaining access to those data is not the fact of exhausting other legal measures that interfere less in the realm of privacy and the privacy of communication. Thirdly, the legislator has not provided for the obligation to obtain permission from a court or any other independent authority for gaining access to those data, which implicitly follows from 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 Fiscal Supervision, and Article 30(1) of the Act on the Military Police. In the applicant’s opinion, this constitutes legislative omission the assessment of which falls within the scope of the jurisdiction of the Constitutional Tribunal. By contrast, Article 28(1)(1) of the Act on the Internal Security Agency, Article 18(1)(1) of the Central Anti-Corruption Bureau Act and Article 32(1)(1) of the Act on the Military Counter-Intelligence Service explicitly rule out permission granted by a court. What would constitute an optimal solution here would be to grant competence within that scope to courts. The constitutional standard would also be met if the supervision in this context was conducted by another organ of public authority that would be external and independent of the executive branch of government. In conclusion, the challenged provisions disproportionately interfere in the freedom and privacy of communication, which arise from Article 49 of the Constitution, and also – for the same reasons – infringe Article 8 of the Convention.
In the application of 27 April 2012, the Ombudsman requests the Tribunal to determine that Article 75d(1) of the Act on the Customs Service is inconsistent with Articles 47 and 49 in conjunction with Article 31(3) of the Constitution. Indeed, he raises the same arguments as in his application of 1 August 2011, with the difference that the higher-level norms for the review also include Article 47 of the Constitution, which expresses the right to the protection of privacy. The Ombudsman points out that the challenged provision in a relatively narrow way – in comparison with the above-indicated 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 Fiscal Supervision, 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 Central Anti-Corruption Bureau Act, and Article 32(1)(1) of the Act on the Military Counter-Intelligence Service – regulates the grounds for the obtaining of telecommunications data by the Customs Service. Indeed, the said data may be provided for the purpose of preventing fiscal offences referred to 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: hereinafter: the Penal Fiscal Code), or detecting the said offences. Hence, the constitutional requirement for the specificity of a regulation that restricts constitutional rights and freedoms is met. However, the said provision is not free from the other defects mentioned above. In particular, the legislator has made it possible for the Border Guard to access telecommunications data, even if there exist other ways of obtaining information which are less intrusive for the individual. Also, he has not provided for independent external supervision over the obtaining of telecommunications data. Therefore, Article 75d(1) of the Act on the Customs Service infringes Articles 47 and 49 in conjunction with Article 31(3) of the Constitution.
What extends and supplements the arguments raised in the applications of the Ombudsman’s applications dated 1 August 2011 and 27 April 2012 within the above scope is the application of 21 June 2012 filed by the Public Prosecutor-General. The Public Prosecutor-General challenges the following provisions:
- Article 20c(1) of the Act on the Police in conjunction with the following: Article 212(1) and (2), Article 216(1) and (2), Article 217(1), Article 221, Article 278(1)-(3) and (5), Article 284(1)-(3), Article 288(1) and (2) as well as Article 290(1) of the Penal Code, Article 45, Article 46(1), Article 49 and Article 49a of the Press Act of 26 January 1984 (Journal of Laws ‑ Dz. U. No. 5, item 24, as amended; hereinafter: the Press Act), Article 34(2), (3) and (4) of the Act of 16 April 2004 on Construction Products (Journal of Laws ‑ Dz. U. No. 92, item 881, as amended; hereinafter: the Act on Construction Products), Article 33 of the Act of 25 February 2011 on chemical substances and mixtures thereof (Journal of Laws ‑ Dz. U. No. 63, item 322), Article 77(2), (2a) and (3) of the Animal Health Protection Act (Journal of Laws ‑ Dz. U. of 2008 No. 213, item 1342, as amended) and in conjunction with Article 52(2) and (4) of the Act of 13 October 1995 – the Hunting Law (Journal of Laws ‑ Dz. U. of 2013 No. 1226, as amended; hereinafter: the Hunting Act);
- Article 10b(1) of the Act on the Border Guard in conjunction with Article 212(1) and 2, Article 216(1) and (2), Article 217(1), Article 221, Article 278(1)-(3) and (5), Article 284(1)-(3), Article 288(1) and (2) as well as Article 290(1) of the Penal Code, Article 45, Article 46(1), Article 49 and Article 49a of the Press Act, Article 34(2), (3) and (4) of the Act on Construction Products, Article 33 of the Act on chemical substances and mixtures thereof, Article 77(2), (2a) and (3) of the Animal Health Protection Act and in conjunction with Article 52(2) and (4) of the Hunting Act;
- Article 30(1) of the Act on the Military Police in conjunction with: Article 212(1) and (2), Article 216(1) and (2), Article 217(1), Article 221, Article 278(1)-(3) and (5), Article 284(1)-(3), Article 288(1) and (2) as well as Article 290(1) of the Penal Code, Article 60(2) and (3), Article 61(1), Article 62(1), (3) and (4), Article 80(1) and (2), Article 93(2) and (3), Article 95(1), Article 108(2) as well as Article 109 of the Act of 10 September 1999 – the Penal Fiscal Code, Article 45, Article 46(1), Article 49 and Article 49a of the Press Act, Article 34(2), (3) and (4) of the Act on Construction Products, Article 33 of the Act on chemical substances and mixtures thereof, Article 77(2), (2a) and (3) of the Animal Protection Act in conjunction with Article 52(2) and (4) of the Hunting Act;
- Article 36b(1)(1) of the Act on Fiscal Supervision in conjunction with Article 60(2) and (3), Article 61(1), Article 62(1), (3) and (4), Article 80(1) and (2), Article 93(2) and (3), Article 95(1), Article 108(2) as well as Article 109 of the Penal Fiscal Code,
- Article 36b(1)(1) in conjunction with Article 2(1)(12) of the Act on Fiscal Supervision, in conjunction with Article 85(4), Article 86(4), Article 87(4), Article 88(3), Article 89(3), Article 90(3), Article 91(4), Article 92(3), Article 94(3), Article 95(2) and Article 96(1) of the Penal Fiscal Code as well as in conjunction with Article 100(1) and Article 101(1) of the Act of 19 March 2004 – the Customs Law (Journal of Laws ‑ Dz. U. No. 68, item 622, as amended; hereinafter: the Customs Act);
- Article 28(1)(1) in conjunction with Article 5(1)(2)(a) of the Act on the Internal Security Agency, insofar as it refers to the wording “and other offences against national security”;
- Article 28(1)(1) in conjunction with Article 5(1)(2)(b) and Article 5(1)(2)(c), as well as Article 5(1)(2)(5) of the Act on the Internal Security Agency;
- Article 32(1)(1) in conjunction with Article 5(1)(1)(a) of the Act on the Military Counter-Intelligence Agency, insofar as it refers to the wording “as well as other statutes and international agreements”;
- Article 32(1)(1) in conjunction with Article 5(1)(1)(g) of the Act on the Military Counter-Intelligence Agency, insofar as it refers to the wording “as well as offences other than those enumerated in points (a)-(f), which undermine the defence potential of the following: the state, the Armed Forces of the Republic of Poland, the organisational units of the Ministry of Defence, and foreign states that guarantee reciprocity”;
- Article 32(1)(1) in conjunction with Article 5(1)(9) of the Act on the Military Counter-Intelligence Service;
- Article 18(1)(1) in conjunction with Article 2(1)(2) of the Central Anti-Corruption Bureau Act in conjunction with Article 4, Article 12(3)-(6), Article 13 and Article 15 of the Act on restrictions on the conduct of economic activity by persons performing public functions;
- Article 18(1)(1) in conjunction with Article 2(1)(5) of the Central Anti-Corruption Bureau Act in conjunction with Article 8(1) and (3) as well as Article 10(1), (2), (5) and (6) of the Act on restrictions on the conduct of economic activity by persons performing public functions, Article 35(1) of the Act of 9 May 1996 on Sejm Deputies and Senators (Journal of Laws ‑ Dz. U. of 2011 No. 7, item 29, as amended; hereinafter: the Act on Sejm Deputies and Senators), Article 87(1) of the Act of 27 July 2001 ‑ the Law on the Organisational Structure of Common Courts (Journal of Laws ‑ Dz. U. No. 98, item 1070, as amended; hereinafter: the Act on the Organisational Structure of Common Courts), Article 38 of the Act of 23 November 2002 on the Supreme Court (Journal of Laws ‑ Dz. U. No. 240, item 2052, as amended; hereinafter: the Act on the Supreme Court), Article 49a(1) of the Act of 20 June 1985 on the Public Prosecutor’s Office (Journal of Laws ‑ Dz. U. of 2011 No. 270, item 1599, as amended; hereinafter: the Act on the Public Prosecutor’s Office), Article 24h(1) of the Act of 8 March 1990 on the Self-Government of Communes (Journal of Laws ‑ Dz. U. of 2001 No. 142, item 1591, as amended; hereinafter: the Act on the Self-Government of Communes), Article 25c(1) of the Act of 5 June 1998 on the Self-Government of Poviats (Journal of Laws ‑ Dz. U. of 2001No. 142, item 1592, as amended; hereinafter: the Act on the Self-Government of Poviats) as well as in conjunction with Article 27c(1) of the Act of 5 June 1998 on the Self-Government of Voivodeships (Journal of Laws ‑ Dz. U. of 2001 No. 142, item 1590, as amended);
- Article 18(1)(1) in conjunction with Article 2(1)(3) of the Central Anti-Corruption Bureau Act in conjunction with Article 1(1) and (2) of the Act of 21 June 1990 on the return of profits gained unjustly at the expense of the State Treasury or other state legal entities (Journal of Laws ‑ Dz. U. No. 44, item 255 as amended; hereinafter: Act on the return of profits gained unjustly at the expense of the State Treasury);
- Article 18(1)(1) in conjunction with Article 2(1)(4) of the Central Anti-Corruption Bureau Act in conjunction with Article 200 of the Act of 29 January 2004 – the Law on Public Procurement (Journal of Laws ‑ Dz. U. of 2010 No. 113, item 759, as amended; hereinafter: the Public Procurement Act), Article 46(1), Article 75(1)-(4) and Article 110(1) of the Act of 2 July 2004 on the Freedom of Economic Activity (Journal of Laws ‑ Dz. U. of 2010 No. 220, item 1447, as amended) as well as in conjunction with Article 3(1), Article 20a(1)-(3), Article 3la, Article 36(1), Article 39(1) and Article 69e of the Act of 30 August 1996 on Commercialisation and Privatisation (Journal of Laws ‑ Dz. U. of 2002 No. 171, item 1397 as amended; hereinafter: the Act on Commercialisation);
- Article 18(1)(1) in conjunction with Article 2(1)(6) and Article 2(1)(7) of the Central Anti-Corruption Bureau Act;
- Article 75d(1) in conjunction with Article 75d(5) of the Act of 27 August 2009 on the Customs Service in conjunction with Article 108(2) and Article 109 of the Penal Fiscal Code.
As higher-level norms for the review, the Public Prosecutor-General indicates Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution, as well as Article 8 of the Convention. The applicant’s argumentation is based on the following reasoning: with reference to the types of offences and fiscal offences – described by him as “minor” or as “having insignificant detrimental effects on society” – and also with reference to certain breaches of law that do not constitute offences, interference in the individual’s privacy and the privacy of communication is alleged to be excessive. The Public Prosecutor-General challenges the admissibility of granting access to telecommunications data in the aforementioned circumstances for two reasons. Firstly, access to telecommunications data is not a useful measure for preventing and detecting certain offences, as well as for carrying out statutory tasks assigned to a given police force or state security service. Secondly, in numerous cases, the significance of an interest protected by the penalisation of a given prohibited act, with regard to which telecommunications data may be accessed, or, possibly, the effectiveness of carrying out analytical and planning tasks, within the scope of which these data may be provided, is less important than protecting individuals’ privacy and ensuring the privacy of communication. In other words, interests that are in conflict here are not properly weighed up.
10.2. In the present case, the Constitutional Tribunal considers the joined applications filed by the Ombudsman and the Public Prosecutor-General, i.e. authorities that have unlimited locus standi to institute proceedings before the Constitutional Tribunal. Bearing in mind the purposes of these proceedings, and the requirement of expeditious proceedings, the Constitutional Tribunal, taking account of argumentation included in all applications concerning the gathering and processing of telecommunications data, decides to review the conformity of 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 Fiscal Supervision, 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 Central Anti-Corruption Bureau Act, Article 32(1)(1) of the Military Counter-Intelligence Service to Article 49 in conjunction with Article 31(3) of the Constitution, as well as Article 75d(1) of the Act on the Customs Service to Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution. Ruling these provisions to be unconstitutional in their entirety will entail that the examination of the detailed allegations raised by the Public Prosecutor-General – which mention them with relation to specific provisions of other statutes – is redundant.
10.3. The Constitutional Tribunal draws attention to the fact that the applicants have not challenged the provisions of the Telecommunications Act which impose, on the providers of telecommunications services or networks, an obligation to retain telecommunications data (the so-called data retention). As a consequence, what will be found outside the scope of the allegation is the issue of admissibility and proportionality of the said obligation, the scope of data that are subject to retention and a period for which they need to be retained. The applicants’ reservations pertaining to the use of telecommunications data concentrate only on a relatively limited case of providing police forces and state security services – as part of operational and investigative activities – with retained telecommunications data. Hence, the scope of the allegation is relatively narrow. Also, when assessing the constitutionality of provisions governing competence which authorise the organs of public authority to use those data in the course of operational and investigative activities, the Tribunal may not ignore normative surroundings in which such provisions function, as well as a way in which they are applied by competent authorities. Nor may it overlook the significance of the judgment issued by the Court of Justice of the European Union on 8 April 2014 in the case C-293/12, in which the Court of Justice ruled that the Data Retention Directive 2006/24/EC was invalid (see part III, point 3 of this statement of reasons).
10.4. The assessment of the conformity of Article 20c(1) of the Act on the Police to Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution.
10.4.1. The challenged provision reads as follows:
“For the purpose of preventing or detecting offences, the Police may access data mentioned in Article 180c and Article 180d of the Telecommunications Act of 16 July 2004 (Journal of Laws ‑ Dz. U. No. 171, item 1800, as amended), hereinafter referred to as ‘telecommunications data’, and may process them”.
10.4.2. The challenged provision authorises the police to collect and process telecommunications data referred to in Article 180c and Article 180d of the Telecommunications Act, as well as it specifies premisses within the scope ratione materiae as regards providing those data to the functionaries of the police (for more, see part III, point 6.2 of this statement of reasons).
What follows from the linguistic interpretation of Article 20c(1) of the Act on the Police is that the functionaries of the police may be provided with telecommunications data for the purpose of “preventing or detecting” every prohibited act that is regarded as an offence, including – what is not definitively ruled out – also a fiscal offence. The only restriction is that the prevention of given offences, or the detection thereof, should fall within the scope of the statutory tasks of the police, as set out in Article 1 of the said Act. However, the catalogue of those tasks is broad. The legislator has determined that the tasks of the police comprise, inter alia: the protection of life and health of other people as well as property against unlawful attempts at interference with those interests (Article 1(2)(1)); the protection of public security and order, including the preservation of order in public places as well as in the means of public transportation, in road traffic and public waters (Article 1(2)(2)); and also the detection of offences and misdemeanours as well as the prosecution of the perpetrators thereof (Article 1(2)(4)). The wording of Article 1(2)(4), in particular, allows one to draw the conclusion that the tasks of the police include the detection of every prohibited act categorised as an offence in the light of the Polish law. Juxtaposing those findings with the interpretation of challenged Article 20c(1) of the Act on the Police, one would have to consequently assume that requesting access to telecommunications data will also be possible for the prevention or detection of offences. Thus, it is justified to state that the legislator specifies the purpose of providing the police with telecommunications data in a very general way.
10.4.3. The Constitutional Tribunal notes that interference in the constitutional right to the protection of privacy (Article 47) and the privacy of communication (Article 49 of the Constitution) may take place not only in the case where the organs of public authority became familiar with the content of messages exchanged between individuals, but also in a situation where authorities obtain information related to the said process (for more, see part III, point 1.4, 1.10, and 6.2. of this statement of reasons). Such a view – as it has been pointed out earlier – was also adopted by the Court of Justice of the European Union in its judgment of 8 April 2014, where the Court ruled that the Data Retention Directive 2006/24/EC was invalid. This means that providing the police with data referred to in Article 180c and Article 180d of the Telecommunications Act constitutes interference in the right to the protection of privacy and the privacy of communication. Although such interference is currently unavoidable – since the police must make use of tools that allow police officers to effectively fight crime – the admissibility of that measure depends on the fulfilment of requirements arising from the principle of proportionality (Article 31(3) of the Constitution).
10.4.4. The Constitutional Tribunal agrees with the applicants’ allegations about the non-conformity of Article 20c(1) of the Act on the Police to Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution.
First of all, the Tribunal decides to address the allegation about insufficient procedural guarantees, related to the lack of external supervision of the process of accessing telecommunications data. The said allegation remains the same with regard to all the provisions challenged within that group. The ruling declaring the unconstitutionality thereof renders it redundant to address the other allegations formulated by the applicants with regard to the admissibility of obtaining data also for the purpose of preventing and prosecuting offences that have relatively insignificant detrimental effects on society, or the lack of the premiss of subsidiarity.
One of the requirements which should be met by statutory provisions that authorise the police to obtain telecommunications data is to provide a mechanism for independent supervision. Since the data are obtained in secret, without the knowledge and will of individuals about whom the police gather information, and at the same time with the limited oversight of society, the lack of independent review by the organs of the state over that process poses a risk of misuse. Not only may this cause unjustified interference with the rights and freedoms of the individual, but it may also pose a threat to democratic mechanisms for exercising power. The need for regulating procedural mechanisms by statute, for the prevention of any arbitrariness in the course of obtaining telecommunications data, is correlated with the scope of competence of state authorities for the secret obtaining of information; the broader the scope of the said competence, the greater the need for the said mechanisms to be regulated by statute. The police may obtain telecommunications data not only to counteract serious offences, but also in less significant cases, or even – as it is specified in a letter of 2 March 2012 submitted by the Marshal of the Sejm – in cases that are trivial. The examples of offences, with regard to which telecommunications data may be disclosed to the police, are set out in a letter of 21 June 2012 submitted by the Public Prosecutor-General. They include inter alia: the offence of defamation (Article 212 of the Penal Code), acquiring carcasses of game animals and hunting trophies, as well as the breeding and upkeep of pedigree greyhounds and their cross-breeds (Article 52(2) and (4) of the Hunting Act). Moreover, the legislator has not correlated the possibility of requesting data with the actual circumstances of a given case, an actual risk level, and, finally, the exhaustion of other means of obtaining information that are less intrusive for the individual. In such a situation, it is even more important to establish procedural guarantees of external supervision over the process of obtaining telecommunications data, especially telephone billing data and location data.
Neither challenged Article 20c(1) of the Act on the Police nor any other provision imposes an obligation on the police to obtain permission from a competent court (or from any other authority that would be independent of authorities that request access to such data or authorities that are superior to them) for the disclosure of data specified in Article 180c and Article 180d of the Telecommunications Act. The said procedure, as it has been stressed earlier, does not require permission from a prosecutor. Nor has the legislator provided for the general elements of ex post facto review that legalises undertaken action. Thus, the obtaining of telecommunications data by the functionaries of the police remains beyond any permanent supervision, conducted by an authority that is independent of the police.
The Constitutional Tribunal notes that, in the provisions of the Act on the Police, the legislator has included certain restrictions on access to telecommunications data. Indeed, not every functionary may – as part of his/her work activities – be granted access to such data. Pursuant to Article 20c(2) of the Act on the Police, telecommunications data referred to in Article 180c and Article180d of the Telecommunications Act, may be disclosed to functionaries who have received appropriate authorisation from the Head of the Polish Police or the head of the police in a given voivodeship. However, the said guarantee does not suffice to prevent any misuse. The restrictions on access to telecommunications data, included in provisions that are currently binding, although needed, do not eliminate the obligation to ensure independent supervision over the process of obtaining telecommunications data.
The Constitutional Tribunal does not determine at this point what exactly a procedure for access to telecommunications data should look like, and in particular, whether it is necessary – with regard to every type of retained data referred to in Article 180c and Article 180d of the Telecommunications Act – to obtain permission for access thereto. Not always access to the data of the same type results in the same extent of interference in the freedoms and rights of the individual. Thus, in the opinion of the Tribunal, it may not be ruled out that, with regard to accessing telecommunications data in the course of operational and investigative activities, ex post facto supervision will be introduced as a rule. When regulating that mechanism, the legislator should take account, inter alia, of the special character and statutory scope of tasks of particular police forces and state security services, as well as of emergencies in which the quick obtaining of telecommunications data may be necessary for the prevention or detection of offences. Pursuant to the constitutional requirement of efficiency in the work of public institutions (the Preamble to the Constitution), a mechanism should be created which would make it possible for police forces and state security services to effectively counteract risks. Nevertheless, the Tribunal recognises arguments for the introduction of ex ante supervision in certain cases. In particular, what is meant here is access to the telecommunications data of persons that hold professions in which the public repose confidence. However, the said issues must be appropriately weighed up by the legislator.
At the same time, the Constitutional Tribunal does not require – referring to the argumentation put forward by the applicants and the other participants in the review proceedings – that supervision over the disclosure of telecommunications data should be exercised by courts. However, it is necessary that this would be an independent authority, and that it would not remain in a direct or indirect relation of superiority to functionaries that are obtaining data. The said requirement should be regarded as well-established in the jurisprudence of the Constitutional Tribunal, as well as that of the European Court of Human Rights and the Court of Justice of the European Union (see part III points 2 and 3 of this statement of reasons).
Taking the above into account, Article 20c(1) of the Act on the Police, due to the fact that it does not provide for independent supervision over the process of granting access to telecommunications data referred to in Article 180c and Article 180d of the Telecommunications Act, is inconsistent with Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution.
10.5. The assessment of the conformity of Article 10b(1) of the Act on the Border Guard to Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution.
10.5.1. The challenged provision reads as follows:
“For the purpose of preventing or detecting offences, the Border Guard may access data mentioned in Article 180c and Article 180d of the Act of 16 July 2004 – the Telecommunications Act (Journal of Laws ‑ Dz. U. No. 171, item 1800, as amended), hereinafter referred to as ‘telecommunications data’, in accordance with the following procedures:
1) a written application filed by the Head of the Border Guard or the head of a regional unit of the Border Guard, or persons that have been authorised by them;
2) a spoken request from a functionary who holds a written authorisation granted by persons referred to in point 1;
3) via a telecommunications network, to a functionary who holds the written authorisation referred to in point 1 – and may process those data”.
10.5.2. The applicants have formulated the same arguments for the non-conformity of that provision to Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution as in the case of Article 20c(1) of the Act on the Police.
Despite almost identical normative content of Article 10b(1) of the Act on the Border Guard and Article 20c of the Act on the Police, which provide for the possibility of granting access to telecommunications data “for the purpose of preventing or detecting offences”, the Constitutional Tribunal draws attention to the fact that the challenged provision of the Act on the Border Guard must also be construed in the context of Article 1(2) of the Act on the Border Guard, which regulate the tasks of that state security service. In particular, Article 1(2)(4) defines the types of offences which are to be investigated, detected and prevented by the Border Guard and also includes the prosecution of perpetrators of the offences within the scope of the competence of the Border Guard.
The Constitutional Tribunal states that it is not necessary to consider the allegations pertaining to the scope ratione materiae of telecommunications data in the Act on the Border Guard or refer to the allegation concerning the lack of the subsidiarity clause. Neither Article 10b(1) of the Act on the Border Guard nor any other provision contains minimum procedural guarantees which entail establishing independent supervision over the process of obtaining data. Determining the lack of the mechanism is sufficient for the Tribunal to adjudicate that the challenged provision is unconstitutional.
Taking the above into consideration, Article 10b(1) of the Act on the Border Guard, due to the fact that it does not provide for independent supervision over the process of granting access to telecommunications data referred to in Article 180c and Article 180d of the Telecommunications Act, is inconsistent with Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution.
10.6. The assessment of the conformity of Article 36b(1)(1) of the Act on Fiscal Supervision to Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution.
10.6.1. The challenged provision reads as follows:
“For the purpose of preventing or detecting fiscal offences or other offences referred to in Article 2(1)(14b), as well as breaches of law specified in Article 2(1)(12), the fiscal intelligence service may have access to data: 1) mentioned in Article 180c and Article 180d of the Telecommunications Act of 16 July 2004 (Journal of Laws – Dz. U. No. 171, item 1800, as amended), hereinafter referred to as ‘telecommunications data’, (…) and may process them”.
10.6.2. With regard to that provision, the applicants have formulated the same allegations and arguments in support of its non-conformity to Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution as well as to Article 8 of the Convention as in the case of Article 20c(1) of the Act on the Police.
The Constitutional Tribunal draws attention to the fact that the challenged provision of the Act on Fiscal Supervision differs from Article 20c of the Act on the Police. Above all, the legislator does not make reference to all offences, but specifies in what circumstances the functionaries of the fiscal intelligence service may have access to the data. In accordance with the interpretation of that provision, the obtaining of those data is legally possible with reference to all – without exception – fiscal offences, and offences specified in Articles 228-231 of the Penal Code, committed by persons employed or in service in organisational units that are subordinate to a competent minister for public finance, as well as for the purpose of preventing and detecting any breaches of national customs provisions and prosecuting any breaches of national or Community customs provisions by carrying out cross-border monitoring of persons, places, means of transport and goods as well as having monitored delivery, within the meaning of the Convention drafted on the basis of Article K.3 of the Treaty on European Union, done in Brussels on 18 December 1997 (Journal of Laws ‑ Dz. U. of 2008 No. 6, item 31).
10.6.3. The Constitutional Tribunal does not determine at this point whether the scope ratione materiae of the access of the fiscal intelligence service to telecommunications data meets the requirements of the principle of proportionality. None of the provisions of the Act, or of any other normative act, establishes even minimum procedural guarantees which include independent supervision over the process of granting access to telecommunications data. The Tribunal’s finding that there is no such mechanism suffices to rule that the challenged provision is unconstitutional.
Taking the above into consideration, Article 36b(1)(1) of the Act on Fiscal Supervision, due to the fact that it does not provide for independent supervision over the process of granting access to telecommunications data referred to in Article 180c and Article 180d of the Telecommunications Act, is inconsistent with Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution.
10.7. The assessment of the conformity of Article 30(1) of the Act on the Military Police to Article 47, and Article 49 in conjunction with Article 31(3) of the Constitution.
10.7.1. The challenged provision reads as follows:
“For the purpose of preventing or detecting offences, including fiscal offences, the Military Police may access data mentioned in Article 180c and Article 180d of the Telecommunications Act of 16 July 2004 (Journal of Laws ‑ Dz. U. No. 171, item 1800, as amended), hereinafter referred to as ‘telecommunications data’, (…) and may process them”.
10.7.2. The applicants have formulated the same allegations of non-conformity to Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution and Article 8 of the Convention with regard to that provision as in the case of Article 20c(1) of the Act on the Police.
The Constitutional Tribunal points out that the legislator in a narrower sense specifies grounds for disclosing telecommunications data to the Military Police than grounds for disclosing the said information to the functionaries of the police. What seems to arise from the wording of the challenged provision is that the Military Police may have access to data referred to in Article 180c and Article 180d of the Telecommunications Act for the purpose of preventing and detecting all offences set out in the Penal Code and the Penal Fiscal Code. Such a view is also presented by the applicants. But one should bear in mind that the legislator has restricted the scope ratione personae of the competence of the Military Police. Pursuant to Article 4(1)(4) of the Act on the Military Police, the tasks of the said police force comprise inter alia the detection of offences and misdemeanours, including fiscal ones, committed by persons referred to in Article 3(2) of the said Act, i.e. soldiers and persons who are not soldiers, if they cooperate with soldiers in committing offences, stay within the boundaries of military units or are subject to the jurisdiction of military courts.
10.7.3. The Constitutional Tribunal states that regardless of that type of a restriction within the scope ratione personae with regard to offences set out in the Penal Code and the Penal Fiscal Code, in the case of which the Military Police may be granted access to telecommunications data, neither the challenged provision nor any other provision of that Act mentions minimum procedural guarantees which include independent supervision over the process of granting access to the said data. The lack of such supervision is a sufficient ground for ruling the challenged provision to be unconstitutional.
Taking the above into account, Article 30(1) of the Act on the Military Police, due to the fact that it does not provide for independent supervision over the process of granting access to telecommunications data referred to in Article 180c and Article 180d of the Telecommunications Act, is inconsistent with Article 47 and Article 9 in conjunction with Article 31(3) of the Constitution.
10.8. The assessment of the conformity of Article 28(1)(1) of the Act on the Internal Security Agency to Article 47, and Article 49 in conjunction with Article 31(3) of the Constitution.
10.8.1. The challenged provision reads as follows:
“The obligation to obtain permission from a competent court, as specified in Article 27(1), does not concern information that is necessary for the Internal Security Agency to carry out tasks set out in Article 5(1), in the form of data: 1) referred to in Article 180c and Article 180d of the Telecommunications Act of 16 July 2004 (Journal of Laws ‑ Dz. U. No. 171, item 1800, as amended)”.
10.8.2. The said provision in a different way than it was considered above regulates the obtaining of telecommunications data. Unlike the provision of the Act on the Police, the Act on the Border Guard, the Act on Fiscal Supervision and the Act on the Military Police, Article 28(1) of the Act on the Internal Security Agency explicitly excludes the obligation to obtain the permission of the court (and more precisely: the issuance of a decision granting permission for telecommunications data to be disclosed to the functionaries of the Internal Security Agency). It should be noted that the legislator has not provided for another, alternative mechanism of independent supervision over the process of granting access to telecommunications data to the functionaries of the Internal Security Agency which could be regarded as one that meets the constitutional standard.
In addition, the legislator has authorised the Internal Security Agency to obtain telecommunications data for the purpose of the investigation, detection and prosecution of offences (which are specified in Article 5(1)(2)), but also other tasks referred to in Article 5(1) of the Act on the Internal Security Agency. The said tasks comprise: identifying and counteracting threats undermining the internal security of the state and its constitutional order, and in particular undermining its sovereignty and international position, the sovereignty and inviolability of its territory, as well as the defence system of the state, preventing these threats (point 1); within the scope of competence assigned to the Agency, carrying out tasks aimed at protecting confidential information, as well as fulfilling the function of a national security authority as regards the protection of confidential information in international relations (point 3); obtaining, analysing, processing and transferring information that may be vital for the protection of the internal security of the state and its constitutional order, as well as providing such information to other organs of public authority (point 4); and also undertaking other tasks specified in separate statutes and international agreements (point 5). Concurrently, some tasks, for instance, the investigation and detection of offences enumerated in Article 5(1)(2) of the Act on the Internal Security Agency, and the prevention of those offences, have been formulated in such a general way that on their basis one may not determine specific circumstances in which telecommunications data may be disclosed to the functionaries of the Internal Security Agency.
10.8.3. The Constitutional Tribunal once again emphasises that the relatively general indication of tasks assigned to an organ of public authority (in this case the Internal Security Agency) is not in itself unconstitutional. However, a problem arises when, within the scope of such tasks, the organs of public authority may undertake actions that interfere in the rights and freedoms of individuals, since the tasks involve the secret obtaining of information. Every time an organ of public authority is authorised to obtain information on the private life of individuals, including telecommunications data, it is necessary to precisely determine the scope ratione personae by statute within which such actions may be carried out.
10.8.4. Bearing in mind the unusually broad scope of circumstances in which the Internal Security Agency may be granted access to telecommunications data, and together with the exclusion of the obligation to obtain permission from the court as well as the lack of the obligation to obtain permission for access to the data from an independent public authority, the Tribunal deems that the challenged provision does not even contain minimum procedural guarantees, which are necessary from the point of view of the Constitution. This suffices to rule that Article 28(1)(1) of the Act on the Internal Security Agency, due to the fact that it does not provide for independent supervision over the process of granting access to telecommunications data referred to in Article 180c and Article 180d of the Telecommunications Act, is inconsistent with Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution.
10.8.5. As a side remark, the Tribunal wishes to point out that the Polish text of Article 28(1) of the Act on the Internal Security Agency is not free from editorial mistakes. It contains a language mistake – an inappropriate syntactic construction that hinders the comprehension of the provision. The mistake consists in the separation of a prepositional phrase ‘in the form of data’ from the noun ‘information’. The said words make up a syntactic phrase. In the Polish language, this type of phrase is grammatically categorised as związek przynależności, where a prepositional phrase ‘in the form of data’ fulfils the function of a prepositional attribute modifying the noun ‘information’.
The challenged provision breaches both the general rule of the natural word order in Polish and the specific rule of placing a prepositional attribute right after a word that it modifies. In the said provision, the noun ‘information’ and the prepositional phrase ‘in the form of data’ are separated by over a dozen other words. What is more, on the basis of a linguistic analysis of the provision, it may not be ruled out that a syntactic construction with the prepositional phrase ‘in the form of data’ does not include the noun ‘information’, but the noun ‘tasks’. Also, it is worth noting that the noun ‘information’ is modified by an adjectival attribute ‘necessary’. If a given noun is simultaneously modified by an adjectival attribute and a prepositional attribute, then – in order to avoid a misunderstanding or stylistic clumsiness – the noun should be repeated with every attribute. The challenged provision does not respect that rule of the Polish syntax.
The Constitutional Tribunal points out that, firstly, “legal provisions as clauses in a grammatical sense must be formulated in accordance with the rules of the syntax of the Polish language, which are commonly accepted and applied. There are no special syntactic rules for legal texts; the rules are same as in the case of any other texts” (M. Zieliński, “Komentarz do § 7 Zasad techniki prawodawczej”, [in:] S. Wronkowska, M. Zieliński, Komentarz do Zasad techniki prawodawczej z dnia 20 czerwca 2002 r., Warszawa 2012, p. 39). Secondly, the syntactic accuracy of a provision, as well as the clear structure of clauses and larger passages constitute two of the prerequisites for the comprehensibility of legal texts, or any other texts (cf. H. Jadacka, “Od czego zależy zrozumiałość tekstu?” [in:] Przegląd Legislacyjny, Issue No. 4/1995, p. 190). The above-discussed issues should be taken into account by the legislator when he undertakes to amend the unconstitutional provision.
10.9. The assessment of the conformity of Article 18(1)(1) of the Central Anti-Corruption Bureau Act to Article 47, and Article 49 in conjunction with Article 31(3) of the Constitution.
10.9.1. The challenged provision reads as follows:
“The obligation to obtain permission from a competent court, as mentioned in Article 17, does not concern information that is necessary for the Central Anti-Corruption Bureau to carry out tasks set out in Article 2, in the form of data: 1) referred to in Article 180c and Article 180d of the Telecommunications Act of 16 July 2004 (Journal of Laws – Dz. U. No. 171, item 1800, as amended), hereinafter referred to as ‘telecommunications data’ ”.
10.9.2. The applicants have formulated the same allegations of non-conformity to Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution and Article 8 of the Convention with regard to the above-quoted provision as in the case of Article 20c(1) of the Act on the Police and Article 28(1)(1) of the Act on the Internal Security Agency. In addition, the legislative construct of the said provision is similar to Article 28(1)(1) of the Act on the Internal Security Agency.
The Constitutional Tribunal draws attention to the excessively broad scope of tasks in the context of which the functionaries of the Central Anti-Corruption Bureau may be granted access to telecommunications data. The said tasks – which is aptly indicated by the Public Prosecutor-General in his application of 21 June 2012 – do not only comprise the investigation and prosecution of serious offences, as well as the prevention thereof, but they also include carrying out other tasks, such as detecting and counteracting any breaches of the provisions of the Act on restrictions on the conduct of economic activity by persons performing public functions (Article 2(1)(2) of the Central Anti-Corruption Bureau Act), gathering relevant evidence and then initiating the implementation of the provisions of the Act on the return of profits gained unjustly at the expense of the State Treasury or other state legal entities (Article 2(1)(3) of the Central Anti-Corruption Bureau Act), and finally carrying out analytical activity pertaining to phenomena falling within the scope of the competence of the Central Anti-Corruption Bureau as well as reporting on those matters to the Prime Minister, the President of the Republic of Poland, the Sejm and the Senate (Article 2(1)(6) of the Central Anti-Corruption Bureau Act).
10.9.3. Bearing in mind the unusually broad range of circumstances in which the Central Anti-Corruption Bureau may be granted access to telecommunications data, and together with the exclusion of the obligation to obtain permission from the court as well as the lack of the obligation to obtain permission for access to the data from an independent public authority, the Tribunal deems that the challenged provision does not even contain minimum procedural guarantees, which are necessary from the point of view of the Constitution. This suffices to rule that Article 18(1)(1) of the Central Anti-Corruption Bureau Act, due to the fact that it does not provide for independent supervision over the process of granting access to telecommunications data referred to in Article 180c and Article 180d of the Telecommunications Act, is inconsistent with Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution.
10.10. The assessment of the conformity of Article 32(1)(1) of the Act on the Military Counter-Intelligence Service to Article 47, and Article 49 in conjunction with Article 31(3) of the Constitution.
10.10.1. The challenged provision reads as follows:
“The obligation to obtain permission from a competent court, as mentioned in Article 31(1), does not concern information that is necessary for the Military Counter-Intelligence Service to carry out tasks set out in Article 5, in the form of data: 1) referred to in Article 180c and Article 180d of the Telecommunications Act of 16 July 2004 (Journal of Laws – Dz. U. No. 171, item 1800, as amended), hereinafter referred to as ‘telecommunications data’ ”.
10.10.2. The applicants have formulated the same allegations of non-conformity to Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution and Article 8 of the Convention with regard to the above-quoted provision as in the case of Article 20c(1) of the Act on the Police and Article 28(1)(1) of the Act on the Internal Security Agency.
10.10.3. The Constitutional Tribunal draws attention to the very broad scope of tasks with regard to which the Military Counter-Intelligence Service may obtain telecommunications data. They are not limited to the investigation, detection or prevention of offences enumerated in Article 5(1)(1), committed by soldiers in service, functionaries of the Military Counter-Intelligence Service and the Military Intelligence Service, as well as employees of the Armed Forces and of other units of the Ministry of National Defence. They also include tasks involving inter alia: obtaining, storing, analysing, processing, and transferring, to competent organs of public authority, information that may be of significance for the defence system of the state, the security or defence capacity of the Armed Forces or other organisational units of the Ministry of National Defence, within the scope of offences specified in Article 5(1)(1); as well as undertaking action to eliminate detected threats (Article 5(1)(6)), and to participate in the planning and conducting of supervision over the implementation of international agreements on disarmament (Article 5(1)(4)); and also investigating and detecting offences referred to in Article 5(1), committed with the involvement of soldiers in service, functionaries of the Military Counter-Intelligence Service and the Military Intelligence Service, or employees of the Armed Forces and of other units of the Ministry of National Defence.
Although the characteristics of the Military Counter-Intelligence Service – which is competent in matters of protection against internal threats to the defence system of the state, the security and defence capacity of the Armed Forces and other organisational units that are subordinate to or supervised by the Ministry of National Defence – may justify, to some extent, a broader scope of competence as regards the obtaining of telecommunications data, the Constitutional Tribunal holds the view that it is necessary to have procedural guarantees which would prevent any abuse of law.
The challenged provision of the Act on the Military Counter-Intelligence Service explicitly excludes the obligation to obtain permission from the court for access to telecommunications data. At the same time, it does not provide for any other, alternative mechanism of supervision over the process of granting access to such data to the functionaries of the Military Counter-Intelligence Service. Also, there are no arguments in favour of lifting that requirement in the case of the said state security service. The challenged provision does not even contain minimum procedural guarantees, which are necessary from the point of view of the Constitution. Bearing this in mind, the Tribunal rules that Article 32(1)(1) of the Act on the Military Counter-Intelligence Service, due to the fact that it does not provide for independent supervision over the process of granting access to telecommunications data referred to in Article 180c and Article 180d of the Telecommunications Act, is inconsistent with Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution.
10.11. The assessment of the conformity of Article 75d(1) of the Act on the Customs Service to Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution.
10.11.1. The challenged provision reads as follows:
“For the purpose of preventing or detecting fiscal offences referred to in chapter 9 of the Penal Fiscal Code, the Customs Service may be granted access to data mentioned in Article 180c and Article 180d of the Telecommunications Act of 16 July 2004 (Journal of Laws – Dz. U. No. 171, item 1800, as amended), hereinafter referred to as ‘telecommunications data’. The Customs Service may process disclosed telecommunications data.”
10.11.2. In his application of 27 April 2012, with regard to Article 75d(1) of the Act on the Customs Service, the Ombudsman raises, in principle, the same allegations and arguments for the non-conformity of the provision to Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution, as in the case of Article 20c(1) of the Act on the Police. However, he does not raise the allegation of the insufficient specificity of the regulation, for the legislator has explicitly indicated in Article 75d(1) that the functionaries of that state security service may be granted access to telecommunications data for a strictly specified purpose i.e. the purpose of preventing and detecting fiscal offences referred to in chapter 9 of the Penal Fiscal Code. By contrast, the said provision does not contain other constitutionally required guarantees, and in particular it does not provide for an ex ante judicial review or the premiss of subsidiarity.
10.11.3. The challenged provision meets the criteria of specificity that may be reasonably expected from the legislator. By making reference to the Penal Fiscal Code, the legislator has narrowed down the scope ratione materiae of the obtaining of telecommunications data to offences regulated in chapter 9 of the said Act. However, as pointed out by the Public Prosecutor-General in his application of 21 June 2012, not all offences provided for in the indicated chapter are serious enough to justify interference in the right to the protection of privacy and the privacy of communication. In his opinion, offences specified in Article 108(2) and Article 109 of the Penal Fiscal Code are not serious in character. The first one penalises running or setting up – in breach of statutory provisions or the terms of a permit – a raffle, bingo, a promotional lottery, or an SMS or telephone lottery, where a surplus from those forms of games was to be allocated for a public cause, in particular a charitable one. Such an offence is punishable by a fine of up to 120 daily rates, specified in relevant provisions. The other offence indicated by the Public Prosecutor-General, referred to in Article 109 of the Penal Fiscal Code, consists in participating in a lottery, betting, or playing gaming machines, where such activities are set up or carried out in breach of statutory provisions or the terms of a licence or permit. The offence is also punishable by a fine of up to 120 daily rates.
10.11.4. The Constitutional Tribunal deems that irrespective of the level of specificity of the scope ratione materiae of telecommunications data disclosed to the Customs Service, neither Article 75d(1) of the Act on the Customs Service nor any other provision of that Act provides for minimum procedural guarantees, which include independent supervision over the process of granting access to telecommunications data to the Customs Service.
Taking the above into consideration, the Tribunal rules that Article 75d(1) of the Act on the Customs Service, due to the fact that it does not provide for independent supervision over the process of granting access to telecommunications data referred to in Article 180c and Article 180d of the Telecommunications Act, is inconsistent with Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution.
11. The protection of professional confidentiality.
11.1. The fourth constitutional issue concerns legislative omission which consists in the lack of a regulation that rules out the carrying out of operational and investigative activities (i.e. operational surveillance and the obtaining of telecommunications data referred to in Article 180c and Article 180d of the Telecommunications Act) with regard to persons bound by professional confidentiality.
11.2. In his application of 13 November 2012, the Public Prosecutor-General raises an allegation of legislative omission in Article 19 of the Act on the Police, Article 9e of the Act on the Border Guard, Article 36c of the Act on Fiscal Supervision, Article 31 of the Act on the Military Police, Article 27 of the Act on the Internal Security Agency, Article 17 of the Central Anti-Corruption Bureau Act, as well as Article 31 of the Act on the Military Counter-Intelligence Service, since the said provisions do not exclude – from the group of persons subjected to operational surveillance – persons from whom the obtaining of information protected by professional confidentiality that binds advocates, journalists, notaries public, legal advisers, tax advisers and medical practitioners “is prohibited, when such information is sought as evidence, within the scope covered by prohibitions on evidence”. In the applicant’s opinion, this appears to infringe Article 2, Article 42(2), Article 47, Article 49, Article 51(2) and Article 54(1) in conjunction with Article 31(3) of the Constitution, as well as Article 6(3)(b) and Article 6(3)(c), and moreover Article 8 and Article 10(1) of the Convention. However, no allegations are raised to challenge the admissibility of conducting operational surveillance with regard to a clergyman who is bound by the secrecy of confession and who is absolutely prohibited from providing evidence (see Article 178(2) of the Code of Criminal Procedure).
11.2.1. The reasoning presented by the applicant is based on the following assumption. Since, in the light of provisions on criminal proceedings, some information may not generally be used as evidence in criminal proceedings, for there is either an absolute prohibition or a qualified one against the use of the said information as evidence, it is hard to deem that the obtaining of the information in the course of operational surveillance is necessary in a democratic state and that it meets requirements arising from the principle of proportionality. In the opinion of the Public Prosecutor-General, the constitutional standard would be met if the following criteria were fulfilled jointly: if a relevant statute provided for the immediate, witnessed and recorded destruction of material – gathered in the course of operational surveillance – which did not contain any evidence that would make it possible to institute criminal proceedings or which contained evidence that was irrelevant to criminal proceedings that were pending; and if the statute excluded certain persons from the scope of operational surveillance, insofar as information obtained during such surveillance was covered by prohibitions on the use of the information as evidence in criminal proceedings. The constitutional problem concerns the inadmissibility of obtaining – in the course of operational surveillance – information which, due to its character and relevance for the rights and freedoms of the individual, may not generally be made available to third parties, and in particular to the organs of public authority.
The reasoning of the Public Prosecutor-General may suggest that his intention was to have a horizontal review of the statutory regulation of operational surveillance in the light of the statutory regulation of prohibitions on the use of certain information as evidence. This is confirmed by the petitum of the application that challenges provisions on operational surveillance “within the scope covered by prohibitions” against the use of certain information as evidence. This problem is pointed out by the Marshal of the Sejm in his letter. Despite certain flaws in the argumentation presented by the Public Prosecutor-General, in his letter of 13 November 2012, the Tribunal deems that the Prosecutor’s intentions are sufficiently clear. Indeed, what follows from the application is that the raised allegations amount to the claim that operational surveillance has been regulated in an imprecise way and does not guarantee sufficient protection of the constitutional rights and freedoms to persons in the interest of whom the obligation of professional confidentiality as well as prohibitions on the use of certain information as evidence have been established. This is confirmed by a passage from the justification of the application, where the Public Prosecutor-General states that the provisions he challenges grant police forces and state security services “an excessively broad scope of discretion in the course of operational surveillance, and thus the provisions do not fulfil the role of a guarantee for individuals subjected to such surveillance, as regards the protection of individuals’ constitutional rights and freedoms” (p. 55 of the application). This was also confirmed by the applicant at the hearing. Hence, there are no grounds for discontinuing the review proceedings within the scope specified above, which is requested by the Marshal of the Sejm, although the Tribunal acknowledges the aptness of the Marshal’s statement that the applicant’s argumentation is not strong and the reasoning lacks sufficient precision.
The applicant places emphasis on the protection of professional confidentiality that binds defence counsels and journalists. In his view, the lack of a possibility of unhindered contacts between an accused person and his/her defence counsel, or even the awareness of possible recording of those conversations, constitutes a breach of the constitutional and conventional right to defence, expressed in Article 42(2) of the Constitution and Article 6(3)(b) and (c) of the Convention. The breach of the said professional confidentiality requirement is inadmissible in a democratic state ruled by law. With regard to professional confidentiality that binds journalists, the Public Prosecutor-General indicates that the protection of journalistic sources is one of the pillars of the free media. The possibility of obtaining such information, especially if it may not be further used in criminal proceedings, due to a prohibition on the use of such evidence, undermines the essence of professional confidentiality that binds journalists.
11.2.2. Bearing in mind the arguments put forward by the Marshal of the Sejm in support of the partial discontinuation of the review proceedings in the present case, on the grounds that, inter alia, no justification has been provided (pp. 9-18 of the letter of 13 May 2013), the Constitutional Tribunal deems that it is necessary to address formal issues. The Tribunal shares the Marshal’s view that the applicant in no way proves, or makes it probable, that Article 2 of the Constitution has been infringed. Within that scope, the review proceedings are subject to discontinuation on the grounds that the issuing of a ruling is inadmissible (Article 39(1)(1) of the Constitutional Tribunal Act).
However, there are no grounds to discontinue the review proceedings, due to formal defects, in the context of the higher-level norms arising from Article 42(2), Article 47, Article 49 and Article 51(2) and Article 54(1) in conjunction with Article 31(3) of the Constitution as well as the provisions of the Convention that have been indicated by the applicant. As it has been pointed out, the justification within that scope is partially insufficient. Nevertheless, in the view of the Constitutional Tribunal, it is possible to recognise the intention of the applicant, who questions – firstly – excessive interference with the broadly understood realm of privacy, and – secondly – the infringement of the freedom of the press and the indispensable element of that freedom, namely the protection of professional confidentiality that binds journalists. Therefore, the Tribunal states that the indicated provisions of the Constitution are adequate higher-level norms for the review and there are no formal obstacles to refer to them in the analysis of the regulations under examination, within the scope challenged by the applicant.
11.3. The Ombudsman, in his application of 1 August 2011, when challenging provisions on collecting and processing telecommunications data, also draws attention to the incompleteness of the regulations. In his opinion, in the challenged provisions, the legislator has not excluded any of the categories of persons using ICT networks from the group of individuals whose data may be obtained. In particular, according to the Ombudsman, no account has been taken of special, strict rules set for protecting information covered by professional confidentiality requirements (that bind advocates, journalists, notaries public, legal advisers, tax advisers and medical practitioners – see Article 180(2) of the Code of Criminal Procedure), which may be waived only when this is necessary for the proper administration of justice, and a given circumstance may not be determined on the basis of any other evidence.
Apart from the generally formulated allegation, the Ombudsman provides no arguments in support thereof. Within the above-mentioned scope, the Ombudsman’s application does not meet formal requirements arising from Article 32(1)(4) of the Constitutional Tribunal Act, i.e. it does not provide justification for the allegation and evidence in support thereof. Thus, the review proceedings within that scope are also subject to discontinuation pursuant to Article 39(1)(1) of the Constitutional Tribunal Act.
11.4. With reference to the allegations raised by the Public Prosecutor-General, in the opinion of the Constitutional Tribunal, there is no justification for an absolute exclusion of any categories of persons from the admissibility of being subjected to operational and investigative activities, including the obtaining of information in the course of operational surveillance. The Constitution does not, in that respect, provide for any exclusion within the scope ratione personae. This does not imply that it is admissible to obtain information, in accordance with such a procedure, from all persons to the same extent and on the same terms. In the view of the Constitutional Tribunal, higher standards of constitutionality in the case of regulations on the secret obtaining of information on individuals pertain to messages exchanged with persons who hold professions in which the public repose confidence, where the exchange falls within the scope of professional duties. As it is aptly pointed out by the Polish Bar Council in its opinion submitted in these review proceedings, such contacts – especially when they are related to providing legal aid – are based on special trust which clients have not only in the professional qualifications of lawyers, but also in the fact that the lawyers will be discreet about information confided to them, which often concerns strictly personal or intimate matters. The protection of the confidentiality of such exchanges – and not persons who have been confided with such information – is a vital element of building mutual trust and a prerequisite for the protection thereof, both at the level of individuals as well as society as a whole. For this reason, the legislator is obliged to protect, to a much greater extent, the confidentiality of messages provided discreetly to persons who hold professions in which the public repose confidence, than the confidentiality of other information exchanged between individuals. Once again it should be emphasised that legal protection should be guaranteed to the confidentiality of the said information not so much due to the person who is the recipient of the confidential information, but rather due to the character of the information.
11.5. One of instruments for protecting the above-mentioned trust is professional confidentiality, together with guarantees that the said confidentiality will be respected in court proceedings. The guarantees comprise inter alia absolute and qualified prohibitions on the use of certain evidence in criminal proceedings, which the Public Prosecutor-General indicates in his application and, in a sense, in the light of which he requests the Tribunal to assess the constitutionality of the challenged provisions. In this context, the Tribunal points out that the protection of professional confidentiality as well as prohibitions on the use of certain evidence in criminal proceedings, which are related to the said confidentiality, do not constitute autotelic values. Although adherence to the requirement of confidentiality by persons who hold professions in which the public repose confidence must always be regarded as an integral value of a democratic state ruled by law, the basic role of the said professionals is to protect the constitutional rights and values of individuals who in secret impart to them certain information about themselves (cf. the judgment of the Constitutional Tribunal of 2 July 2007, ref. no. K 41/05, part III, point 7). Thus, in every case, the protection of professional confidentiality should be perceived as a form of protecting individuals’ rights and freedoms, and in particular: their privacy (Article 47); informational self-determination (Article 51(1)); the right to defence (Article 42(2)); the right to a fair trial (Article 45(1)); the freedom of conscience and religion (Article 53); or the freedom to acquire information, including the freedom of the press (Article 54(1) of the Constitution). For this reason, the Tribunal has stressed – with reference to professional confidentiality that binds legal advisers – that the right to the privacy and confidentiality of information has not been granted to legal advisers, but to their clients; legal advisers are obliged to respect that right (see the judgment of the Constitutional Tribunal of 22 November 2004, ref. no. SK 64/03, OTK ZU No. 10/A/2004, item 107, part III, point 3). This conclusion applies accordingly to professional confidentiality that binds other groups of professionals.
11.6. Both in national and European jurisprudence, great significance is assigned to the confidentiality of contacts between an accused person and his/her defence counsel in criminal proceedings, where the said confidentiality is considered to be a prerequisite for the effective exercise of the right to defence (Article 42(2)) of the Constitution and Article 6(3)(b) and (c) of the Convention), as well as to the confidentiality of journalistic sources as a requirement for the existence of the freedom to disseminate information, and consequently – the freedom of the press (Article 54(1) of the Constitution and Article 10(1) of the Convention).
11.6.1. The significance of confidentiality that binds defence counsels, as a guarantee of the constitutional right to defence, and a need for the enhanced protection thereof arise – which was aptly pointed out by the Polish Bar Council – from the special character of criminal proceedings; within the scope of those proceedings, important issues pertaining to the status of the individual are determined, such as the deprivation of liberty or the revocation of public rights. Taking this into consideration, in the jurisprudence of the Constitutional Tribunal and the European Court of Human Rights, it has been stated many times that in order to effectively make use of assistance provided by the defence counsel, it is necessary to preserve the confidentiality of communication between the defence counsel and the accused (the suspect) (see the judgment of 11 December 2012, ref. no. K 37/11, OTK ZU No. 11/A/2012, item 133, part III, point 3 as well as the jurisprudence of the Tribunal and the ECHR cited therein). The lack of a possibility of confidential communication between the accused and his/her defence counsel, also via information and communications technologies, entails that the effectiveness of legal aid is considerably undermined. Being afraid that his/her conversation with the defence counsel may be intercepted, the accused may indeed refrain from relying on professional legal aid or may decide not to share, with the defence counsel, the vital circumstances of a given case. As aptly pointed out by the Polish Bar Council, in such a situation, the defence counsel – failing to obtain complete information about the circumstances of the case – is unable to provide his/her client with best legal advice. Consequently, such a state of affairs may hinder the effective construction of a line of defence, which may even result in an unjust sentence. Awareness that contacts between the accused and the defence counsel are secretly monitored undermines trust which is necessary for the proper fulfilment of the role assigned to the defence counsel as well as for the effective exercise of the right to defence. It is necessary to guarantee the confidentiality of conversations between the accused and his/her defence counsel not only at the stage of court proceedings, but also at every stage of proceedings, even before a non-judicial authority (a public prosecutor, the police or a state security service). Indeed, an infringement of the right to defence at the stage of pre-trial proceedings may result in irregularities in court proceedings (see P. Hofmański, A. Wróbel [in:] Konwencja o Ochronie Praw Człowieka i Podstawowych Wolności. Komentarz do artykułów 1-18, Vol. 1, L. Garlicki (ed), Warszawa 2010, p. 407 and the ECHR jurisprudence cited therein).
11.6.2. The special protection of journalistic sources is related to the fact that the media are considered to be the guardians of democracy and pluralism (see the ECHR judgments of: 27 March 1996 in the case of Goodwin v. the United Kingdom, application no. 17488/90; 22 November 2007, the case of Voskuil v. the Netherlands, application no. 64752/01; 14 September 2010, the case of Sanoma Uitgevers B.V. v. the Netherlands, application no. 38224/03). The lack of special protection for journalistic sources may undermine informants’ trust in journalists, and may also result in their fear of such collaboration. This will considerably hinder the proper functioning of the press and other means of mass communication. At the same time, the ECHR jurisprudence indicates that not in every case when public authorities obtain material protected by professional confidentiality that binds journalists, inter alia with regard to their sources of information, interference in the right specified in Article 10(1) of the Convention is disproportionate. In the above-cited judgment in the case of Weber and Saravia v. Germany, where one of the applicants was a journalist, it was alleged that Article 10(1) of the Convention had been infringed due to the fact that in the course of the strategic monitoring of telephone calls, it was possible to obtain information that identified the journalist’s sources. The ECHR did not deem that the German regulations were inconsistent with Article 10(1) of the Convention. First of all, the strategic monitoring of telephone calls had not been intended to determine data on the basis of which it was possible to identify the sources of information – the purpose was not to disclose those sources. The monitoring was not aimed at obtaining telecommunications data on journalists, but only on persons involved in criminal activity. Secondly, as indicated by the ECHR, although the German regulations did not contain special rules safeguarding the freedom of the press and, in particular, guaranteeing the non-disclosure of sources, it did provide for other (general) safeguards which were adequate for minimising the risk of arbitrary or excessive interference (see paras 151-152 of the said judgment). For the above reasons, the ECHR did not rule that Article 10 of the Convention had been breached.
The issue of disclosing journalistic sources was also addressed in the case of Telegraaf Media Nederland Landelijke Media B.V and Others v. the Netherlands (the judgment of 22 November 2012, application no. 39315/06). The ECHR (by a majority of five to two votes) ruled that Article 10 of the Convention had been infringed. A motive in the case was that the Netherlands’ authorities obliged the journalists to disclose to them who had provided information on the unauthorised leak of confidential documents of the Netherlands’ secret service to persons involved in criminal activity. The basic purpose of intercepting the journalists’ conversations was to identify their informants. Furthermore, the Netherlands’ law did not provide for a court’s ex ante permission for the waiving of the journalistic privilege of non-disclosure. The ECHR found it insufficient to have only an ex post facto review in place, conducted by an independent authority, since such a review cannot restore the confidentiality of journalistic sources once it is breached (paras 100-101 of the said judgment). A similar stance on the necessity of an ex ante judicial review for the waiving of the journalistic privilege of non-disclosure was also adopted by the ECHR in the case of Sanoma Uitgevers B.V. v. the Netherlands, application no. 38224/03.
The issue of professional confidentiality binding journalists has also been addressed in the jurisprudence of the Constitutional Tribunal (see the judgments of the Constitutional Tribunal of: 30 October 2006, ref. no. P 10/06, OTK ZU No. 9/A/2006, item 128; 12 May 2008, ref. no. SK 43/05, OTK ZU No. 4/A/2008, item 57). In its judgment in the case P 10/06 (issued by the full bench), the Tribunal held that it was justified to consider the said confidentiality in the light of Article 14 and Article 54 of the Constitution. The first provision expresses a systemic principle and emphasises the importance of the freedom of the press in a democratic society. The other concerns the freedom to express opinions in any form in all circumstances. But the Tribunal did not extensively discuss constitutional requirements concerning the protection of professional confidentiality that binds journalists in the context of the secret obtaining of information on persons in the course of operational and investigative activities.
The significance of professional confidentiality binding journalists – as an essential component of the freedom of the press as well as the freedom to acquire and disseminate information – has been stressed in the jurisprudence of the Polish Supreme Court. In its resolution of 19 January 1995 (ref. no. I KZP 15/94, OSNKW No. 1-2/1995, item 1), the Supreme Court emphasised: “undoubtedly, professional confidentiality that binds journalists constitutes a vital factor for the freedom of the press and creates beneficial conditions for gaining social trust. Indeed, the said confidentiality makes it possible to provide a personal evaluation of various aspects of social life, without any need to disclose the sources of information or the name of the author of given press material. Professional confidentiality that protects journalists eliminates possible influences of political and administrative factors – including the police, social and professional organisations, various interest groups or particular interested individuals – on the content of a publication”.
11.7. A conflict may arise between the protection of privacy, the right to defence, the freedom of conscience and religion or even the freedom of the press – which are all guaranteed protection in criminal proceedings under the professional confidentiality requirement and the aforementioned prohibitions on the use of certain information as evidence – on the one hand, and an effective fight against threats, on the other. The obtaining of information in the course of operational surveillance, or even the mere admissibility of ordering such surveillance, constitutes interference in a relation which requires special protection, as it is based on trust and discretion. This may have far-reaching consequences, both for the individual – affecting the actual exercise of constitutional rights and freedoms by individuals who communicate with persons holding professions in which the public repose confidence and to whom they impart confidential information – as well as for society at large. However, despite the assertions of the Public Prosecutor-General – the conflict of the two values does not consist in the fact that the protection of the individual’s rights and freedoms always takes precedence, and so does indirectly professional confidentiality. The Constitutional Tribunal has pointed this out several times in its jurisprudence (cf. the judgments of the Constitutional Tribunal of: 22 November 2004, ref. no. SK 64/03, part III, point 3; 2 July 2007, ref. no. K 41/05, part III, point 7; 13 December 2011, ref. no. K 33/08, OTK ZU No. 10/A/2011, item 116, part III, point 6.4); in the context of the present case, the Tribunal adopts the same stance. Since the protection of the confidentiality of certain information (safeguarded in criminal proceedings by the professional confidentiality requirement and prohibitions on the use of that information as evidence) serves the unrestrained exercise of constitutional rights and freedoms, then every case of the legislator’s interference in that realm should be considered in the light of the principle of proportionality and in terms of conformity to the other standards of a democratic state ruled by law. Such values include, inter alia, the protection of the following: national security, public order, or the rights and freedoms of other persons.
Bearing this in mind, it is possible that police forces and state security services may be authorised to obtain confidential information imparted to persons holding professions in which the public repose confidence. Considering the significance of new technologies for an effective fight against threats (see part III points 1.5-1.7 of this statement of reasons), in the view of the Constitutional Tribunal, the general exemption of persons bound, in a statute, by professional confidentiality from being subjected to operational surveillance, or even the exemption of information covered by the professional confidentiality requirement as absolutely prohibited from being obtained in that way, would considerably hinder the gathering of evidence material for certain types of offences committed, for instance, with the use of new technologies. Furthermore, it should be borne in mind that it is usually impossible to determine – in an abstract way – a relation between an interest which is protected by prohibitions on the use of certain information as evidence (as well as by the professional confidentiality requirement) and the interest of the administration of justice, national security and public order, in terms of which interest is “superior/inferior” or “more/less important” (see the judgment of the Constitutional Tribunal of 13 December 2011, ref. no. K 33/08, part III, point 6.4 the statement of reasons). Such an evaluation may be carried out on a case-to-case basis, taking account of the circumstances of a particular case. This evaluation should be preceded by determining: the seriousness of a threat because of which the professional confidentiality requirement may be waived; and the significance of privileged information which is to be disclosed. It may not be ruled out that an interest such as the safety of a large number of people in a given case may override the necessity to protect a relation of confidentiality, and thus may justify the recording of confidential information and its subsequent – even if only operational – use by the organs of the state. Also, the special character of operational surveillance may not be disregarded; the said surveillance does not so much consist in recording individual messages exchanged between persons whose names have been identified, but it rather involves monitoring the sources of information for a certain period (e.g. the use of tapping devices, the monitoring of written and electronic correspondence) with regard to a person indicated in a relevant court order. Only after the completion of the surveillance and the analysis of collected information, it is possible to verify the content of collected data and to determine which information is subject to absolute protection without any chance of further use thereof, and which must unconditionally be destroyed.
In the opinion of the Tribunal, emphasis thus shifts to ensuring appropriate procedural guarantees which are to prevent police forces and state security services from unauthorised acquisition of information which – due to its content and circumstances in which it is obtained – should be subject to legal protection. What constitutes a model resolution of that conflict of interests is a mechanism of waiving the professional confidentiality requirement by a court, as provided in Article 180(2) of the Code of Criminal Procedure, if this is necessary for the proper administration of justice, and a given circumstance may not be determined in any other way that would not breach professional confidentiality. The said mechanism has been evaluated in a positive way by the Constitutional Tribunal (see the judgment of the Constitutional Tribunal of 22 November 2004, ref. no. SK 64/03). In the Tribunal’s view, legislative solutions that are similar in their essence should also pertain to the protection of professional confidentiality in the course of operational and investigative activities, including operational surveillance. There are no justified grounds to apply more lenient standards at that stage of proceedings than those provided for in criminal proceedings. On the contrary, due to the secret character of operational surveillance and the fact that it is not related to court proceedings, the said standards should be at least concurrent with the standards applicable to criminal proceedings.
Irrespective of introducing mechanisms of an ex ante judicial review and of selection of material which is likely to be subject to professional confidentiality, a regulation on operational surveillance must also include an effective mechanism for the immediate, witnessed and recorded destruction of the said privileged material, when the material contains no information which would justify instituting or conducting criminal proceedings, due to its uselessness for further proceedings or inadmissibility (the lack of a legal possibility to use the information in the subsequent stages of the proceedings).
The Constitutional Tribunal observes that, in the jurisprudence of courts and in the doctrine of law, criminal-procedure provisions on professional confidentiality that binds the defence counsel are frequently interpreted in the way that the defence counsel is excluded from the category of persons whose conversations may be monitored and recorded (see, in particular, the decision of the Supreme Court of 26 October 2011, ref. no. I KZP 12/11, OSNKW No. 10/2011, item 90).
However, the said stance was adopted on the basis of the provisions of the Code of Criminal Procedure, regulating the interception of conversations which is ordered with relation to criminal proceedings that are pending. The point is that since it is inadmissible to use – as evidence in criminal proceedings – information protected by professional confidentiality binding the defence counsel, for this would be contrary to an absolute prohibition rendered in Article 178(1) of the Code of Criminal Procedure, and where at the same time there are no legal obstacles to using the said information to obtain other evidence (indeed, in the Polish law, there is no concept of “the fruit of the poisonous tree”), then the only measure that guarantees the actual protection of professional confidentiality binding the defence counsel is an absolute prohibition on interference in confidential relations between the accused and his/her defence counsel – in other words, a prohibition against monitoring and recording conversations held by the defence counsel. This is pointed out in the letter of 13 May 2013 by the Marshal of the Sejm. However, in the said letter, he presents further-reaching conclusions. He argues for the necessity to extend the scope of the prohibition to include operational surveillance, which is not linked to court proceedings. Consequently, in the opinion of the Marshal of the Sejm, it is impossible to use operational surveillance with regard to the defence counsel. The said view also seems to refer to the inadmissibility of obtaining information which could identify journalistic sources.
The Constitutional Tribunal does not deny that such an interpretation of the binding provisions is adopted by courts, which in every case assign precedence to the protection of professional confidentiality binding the defence counsel, and thus to the confidentiality of contacts between the accused and his/her defence counsel, although – which may not be ruled out – this may undermine the fight against serious threats. The standard adopted by courts and approved in the literature on the subject does surpass what the Constitution requires, for – as it is stressed – it would be difficult to derive that type of absolute prohibitions within the scope ratione personae from the Constitution. In the case under examination, the Tribunal does not share the optimistic view of the Marshal of the Sejm that the interpretation of the provisions of the Code of Criminal Procedure adopted in the jurisprudence of courts as well as the proper application of that interpretation in the light of the challenged regulations sort out all constitutional issues and guarantee the proper protection of persons bound by professional confidentiality in the context of operational surveillance. This is also confirmed by a letter submitted by the President of the Military Chamber of the Supreme Court, who points out that there are no proper guarantees, arising from provisions or the jurisprudence of courts, to protect professional confidentiality in the course of operational and investigative activities. A similar stance was adopted by the presidents of circuit courts and courts of appeal whom the Tribunal requested to provide information on the application of provisions concerning operational surveillance (see part I point 3.11 of this statement of reasons). What follows from those submissions is that one may not speak of an established line of jurisprudence that would guarantee the protection of professional confidentiality in the course of operational surveillance.
In the opinion of the Constitutional Tribunal, even if one were to adopt the interpretation of the challenged provisions in accordance with the Constitution, as suggested by the Marshal of the Sejm, then a potential prohibition on operational surveillance of persons bound by professional confidentiality, especially defence counsels and journalists, does not entail that police forces and state security services may not obtain information covered by the requirement of such confidentiality (e.g. in the course of using surveillance with regard to accused persons or journalists’ informants). Moreover, the said prohibition does not determine a procedure for handling such material; nor does it make it possible to specify the scope of protection of confidential information imparted to persons holding professions in which the public repose confidence.
Having considered the above conclusions, the Tribunal now moves on to assess the constitutionality of particular challenged provisions.
11.8. The assessment of the conformity of Article 19 of the Act on the Police to Article 42(2), Article 47, Article 49, Article 51(2) and Article 54(1) in conjunction with Article 31(3) of the Constitution.
11.8.1. The Constitutional Tribunal agrees with the applicant that, in the context of the challenged provision (as well as the other universally binding provisions), reservations may be raised as to the lack of sufficient procedural guarantees that would ensure the protection of confidentiality of information imparted to persons that hold professions in which the public repose confidence. It does not provide for – in a way that would not raise interpretative doubts – either an obligation of an ex ante judicial review of collected data or a possible exemption from (the waiving of) the professional confidentiality requirement in a particular case. What is meant here is not the issuance of a decision granting permission for the ordering of operational surveillance (the permission is required de lege lata anyway). The constitutional defect of Article 19 of the Act on the Police is the lack of a statutory guarantee – in the case of a justified suspicion that obtained material contains privileged information and hence requires special protection – that additional verification of the material will be carried out by a competent court and possibly the professional confidentiality requirement will be waived, before the material is provided to the functionaries of a given police force or state security service or to a public prosecutor. The Tribunal is aware of risks ensuing from the possibility of accessing privileged information by the said functionaries, especially that there is no clear statutory prohibition against the use of “the fruit of the poisonous tree”. The said risk is serious, but not serious enough to exempt a certain group of individuals – including defence counsels and journalists – from the scope of operational surveillance. In this state of affairs, it is the legislator’s obligation to introduce legal solutions which would prevent the risk of unauthorised use of information that requires protection, or which would at least minimise that risk.
Also, the challenged provisions do not include a procedure for destroying information that has been collected in the course of operational surveillance and which is protected by professional confidentiality. In the Tribunal’s opinion, such a basis may not be derived – without raising interpretative doubts – from inter alia Article 19(15b) and (17) of the Act on the Police and, when accordingly applied, Article 238(3)-(5) and Article 239 of the Code of Criminal Procedure. In accordance with Article 19(15b) of the Act on the Police, it is a public prosecutor’s obligation in every case to verify material collected in the course of operational surveillance and to decide within what scope and in what manner it will be used. Pursuant to Article 238(3) of the Code of Criminal Procedure, applied accordingly, if all material collected in the course of the said surveillance is irrelevant to criminal proceedings, the public prosecutor requests that the material be destroyed after the end of the surveillance. However, if the material is irrelevant to criminal proceedings within the scope of which it has been ordered to monitor and record telephone conversations, and the material does not constitute evidence referred to in Article 237a, then in accordance with Article 238(4) of the Code of Criminal Procedure, the public prosecutor requests that the material of that kind be destroyed. The court considers the prosecutor’s motion at a sitting which may be attended by the parties. By contrast, pursuant to Article 238(5) of the said Code, if the prosecutor does not request that the material or records collected in the course of operational surveillance be destroyed, this may be requested – however not earlier than after the completion of preliminary proceedings – inter alia by a person whose conversations were monitored. In Article 239 of the said Code, the legislator indicates that providing a person subjected to surveillance with notification of the monitoring and recording of conversations may be deferred for as long as it is necessary for the sake of a given case, and in preliminary proceedings – no later than until the completion of those proceedings.
What should be criticised is the lack of appropriate solutions with regard to those examples of privileged information which – due to their significance for the implementation of values, such as the right to defence and the freedom of the press – should be subject to special protection against disclosure to police forces and state security services that carry out operational surveillance. Although the mere possibility of the secret obtaining of privileged information exchanged between the accused and his/her defence counsel does not, in itself, violate the right to defence (indeed, the accused may rely on the assistance of his/her defence counsel, by communicating with him/her in person, without using such means of communication that may be subject to operational surveillance), the Constitutional Tribunal holds the view that the legislator has failed to effectively rule out serious breaches of that right by police forces and state security services. Similar arguments lead to a negative evaluation of the challenged provisions in the light of Article 54(1) of the Constitution, which guarantees the protection of professional confidentiality binding journalists, and which is a higher-level norm for the review in the present case. Indeed, the Act does not rule out a possibility that the functionaries of the police may obtain and analyse material that is crucial for independent journalism, such as personal details of informants. As pointed out by the Tribunal, what constitutes a minimum standard, in the context of the protection of confidentiality of contacts between the accused and the defence counsel as well as the confidentiality of journalistic sources, is the existence of judicial review to verify material collected by the police in the course of operational and investigative activities, where there is justified likelihood that the material contains information protected by professional confidentiality, as well as to rule out the further use of the material, which is vital for the protection of the relation of trust.
Taking this into consideration, the Constitutional Tribunal states that Article 19 of the Act on the Police – insofar as it does not provide for the guarantee of immediate, witnessed and recorded destruction of material that contains information prohibited from being used as evidence, with regard to which the court has not waived the professional confidentiality requirement or in the case of which the waiving of the requirement is inadmissible – is 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.
11.8.2. As a side remark, the Tribunal states that the applicant aptly indicates considerable discrepancies between the regulations as regards obtaining information in the course of operational and investigative activities, where the regulations (de lege lata) provide for recording messages that may not actually be used in criminal proceedings as evidence in a given case. Thus, binding guarantees provided for in the Code of Criminal Procedure with regard to information protected by professional confidentiality become illusory, since despite a general prohibition on using such privileged information as evidence in a given case, the legislator permits – although indirectly, by an ambiguous statutory regulation – that such information may be collected and stored by police forces and state security services authorised to carry out operational surveillance. This is particularly striking in the context of privileged information in possession of defence counsels and journalists (within the above-indicated scope), which – under the Code of Criminal Procedure – is covered by absolute legal protection in the form of a prohibition on the use of such information as evidence.
11.9. The assessment of the conformity of Article 9e of the Act on the Border Guard to Article 42(2), Article 47, Article 49, Article 51(2) and Article 54(1) in conjunction with Article 31(3) of the Constitution.
11.9.1. With regard to Article 9e of the Act on the Border Guard, the applicant formulates the same allegations as in the context of Article 19 of the Act on the Police. In the view of the Tribunal, neither the scope of the activity of the fiscal intelligence service nor any other circumstances justify a different assessment of the conformity of the provision to the indicated higher-level norms for the review.
Taking the above into consideration, Article 9e of the Act on the Border Guard – insofar as it does not provide for the guarantee of immediate, witnessed and recorded destruction of material that contains information prohibited from being used as evidence, with regard to which the court has not waived the professional confidentiality requirement or in the case of which the waiving of the requirement is inadmissible – is 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.
11.10. The assessment of the conformity of Article 31 of the Act on the Military Police to Article 42(2), Article 47, Article 49, Article 51(2) and Article 54(1) in conjunction with Article 31(3) of the Constitution.
11.10.1. With regard to Article 31 of the Act on the Military Police, the applicant formulates the same allegations as in the context of Article 19 of the Act on the Police. In the view of the Tribunal, neither a different normative context of carrying out operational surveillance in the light of the Act on the Military Police nor any other reasons justify a different assessment of the conformity of the provision to the indicated higher-level norms for the review.
Taking the above into consideration, Article 31 of the Act on the Military Police – insofar as it does not provide for the guarantee of immediate, witnessed and recorded destruction of material that contains information prohibited from being used as evidence, with regard to which the court has not waived the professional confidentiality requirement or in the case of which the waiving of the requirement is inadmissible – is 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.
11.11. The assessment of the conformity of Article 36c of the Act on Fiscal Supervision to Article 42(2), Article 47, Article 49, Article 51(2) and Article 54(1) in conjunction with Article 31(3) of the Constitution.
11.11.1. With regard to Article 36c of the Act on Fiscal Supervision, the applicant formulates the same allegations as in the context of Article 19 of the Act on the Police. In the view of the Tribunal, neither the scope of the activity of the fiscal intelligence service nor any other circumstances justify a different assessment of the conformity of the provision to the indicated higher-level norms for the review.
In this context, the Tribunal states that Article 36c of the Act on Fiscal Supervision – insofar as it does not provide for the guarantee of immediate, witnessed and recorded destruction of material that contains information prohibited from being used as evidence, with regard to which the court has not waived the professional confidentiality requirement or in the case of which the waiving of the requirement is inadmissible – is 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.
11.12. The assessment of the conformity of Article 27 of the Act on the Internal Security Agency to Article 42(2), Article 47, Article 49, Article 51(2) and Article 54(1) in conjunction with Article 31(3) of the Constitution.
11.12.1. With regard to Article 27 of the Act on the Internal Security Agency, the applicant formulates the same allegations as in the context of Article 19 of the Act on the Police. In the view of the Tribunal, neither the character of the activity of the Internal Security Agency nor the statutory scope of operational surveillance justifies a different assessment of the conformity of the provision to the indicated higher-level norms for the review.
Taking the above into consideration, the Tribunal deems that Article 27 of the Act on the Internal Security Agency – insofar as it does not provide for the guarantee of immediate, witnessed and recorded destruction of material that contains information prohibited from being used as evidence, with regard to which the court has not waived the requirement of professional confidentiality or in the case of which the waiving of the requirement is inadmissible – is 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.
11.13. The assessment of the conformity of Article 17 of the Central Anti-Corruption Bureau Act to Article 42(2), Article 47, Article 49, Article 51(2) and Article 54(1) in conjunction with Article 31(3) of the Constitution.
11.13.1. With regard to Article 17 of the Central Anti-Corruption Bureau Act, the applicant formulates the same allegations as in the context of Article 19 of the Act on the Police. In the view of the Tribunal, neither a different normative context of carrying out operational surveillance in the light of the Central Anti-Corruption Bureau Act nor any other reasons justify a different assessment of the conformity of the provision to the indicated higher-level norms for the review.
Taking the above into consideration, the Tribunal states that Article 17 of the Central Anti-Corruption Bureau Act – insofar as it does not provide for the guarantee of immediate, witnessed and recorded destruction of material that contains information prohibited from being used as evidence, with regard to which the court has not waived the professional confidentiality requirement or in the case of which the waiving of the requirement is inadmissible – is 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.
11.14. The assessment of the conformity of Article 31 of the Act on the Military Counter-Intelligence Service to Article 42(2), Article 47, Article 49, Article 51(2) and Article 54(1) in conjunction with Article 31(3) of the Constitution.
11.14.1. With regard to Article 31 of the Act on the Military Counter-Intelligence Service, the applicant formulates the same allegations and arguments as in the context of Article 19 of the Act on the Police. In the view of the Tribunal, neither a different normative context of carrying out operational surveillance in the light of the Act on the Military Counter-Intelligence Service nor any other reasons justify a different assessment of the conformity of the provision to the indicated higher-level norms for the review.
Taking the above into consideration, the Tribunal states that Article 31 of the Act on the Military Counter-Intelligence Service – insofar as it does not provide for the guarantee of immediate, witnessed and recorded destruction of material that contains information prohibited from being used as evidence, with regard to which the court has not waived the professional confidentiality requirement or in the case of which the waiving of the requirement is inadmissible – is 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.
12. The destruction of telecommunications data.
12.1. The fifth constitutional issue concerns the fact that the statutes do not specify grounds for destroying telecommunications data which prove to be irrelevant (useless) to proceedings for the sake of which they have been obtained. In his application of 1 August 2011, the Ombudsman requests the Tribunal to determine that Article 36b(5) of the Act on Fiscal Supervision, Article 28 of the Act on the Internal Security Agency, Article 18 of the Central Anti-Corruption Bureau Act as well as Article 32 of the Act on the Military Counter-Intelligence Service – insofar as they permit the obtaining of data referred to in Article 180c and Article 180d of the Telecommunications Act, but do not provide for destroying those data that prove to be irrelevant to given proceedings – are inconsistent with Article 51(2) in conjunction with Article 31(3) of the Constitution. By contrast, in his application of 27 April 2012, the Ombudsman requests the Tribunal to rule that Article 75d(5) of the Act on the Customs Service is inconsistent with Article 51(4) of the Constitution.
In the applicant’s opinion, Article 28 of the Act on the Internal Security Agency, Article 18 of the Central Anti-Corruption Bureau Act and Article 32 of the Act on the Military Counter-Intelligence Service do not provide for destroying collected telecommunications data, even if they are useless for the purposes for which they have been obtained. In the Ombudsman’s opinion, collecting and storing telecommunications data, with no time restrictions – where the data are not necessary for the purposes for which they have been obtained – infringe Article 51(2) in conjunction with Article 31(3) of the Constitution. The applicant formulates here two specific allegations. Firstly, the challenged provisions do not at all provide for a procedure to evaluate telecommunications data disclosed to given police forces or state security services in terms of their usefulness for the purposes for which they have been obtained. Secondly, the legislator has not provided for a procedure to destroy useless data. The term ‘useless data’ seems to be interpreted by the applicant as data that are useless for attaining the statutory purposes for which they are collected; the said purposes are specified, respectively, in Article 28(1) of the Act on the Internal Security Agency, Article 18(1) of the Central Anti-Corruption Bureau Act and Article 32(1) of the Act on the Military Counter-Intelligence Service. When making reference to the allegation about the unconstitutionality of Article 36b(1) of the Act on Fiscal Supervision, the Ombudsman explains that the procedure regulated therein for destroying telecommunications data only partly meets constitutional requirements. The legislator has provided for an obligation to destroy collected data only when a competent minister for finance – who exercises supervision over the functionaries of the fiscal intelligence service – deems that an application for access to telecommunications data is unjustified. By contrast, as regards data that have been gathered on the basis of a justified application and which have proved to be useless in given proceedings, the legislator has not provided for an obligation to destroy them forthwith.
The applicant takes a slightly different approach to the constitutional issue in the context of Article 75d(5) of the Act on the Customs Service, and hence he formulates the allegation of unconstitutionality differently. The said provision is alleged to be inconsistent with Article 51(4) of the Constitution, as it makes it possible for the Customs Service to retain telecommunications data that have been collected in breach of the statute. These data are data which make it possible to detect and prosecute offences other than those enumerated in the catalogue set out in Article 75d(1) of the Act on the Customs Service, i.e. prohibited acts other than fiscal offences mentioned in chapter 9 of the Penal Fiscal Code. Indeed, the challenged regulation provides for an obligation to destroy data obtained on the basis of Article 75d(1) of the Act on the Customs Service only with regard to data that “do not contain any information which may be relevant to proceedings in cases concerning fiscal misdemeanours or offences”. Thus, the scope of the statutory purpose of collecting telecommunications data is narrower than the scope of the purpose of storing them and possibly using them in the future.
12.2. The assessment of the conformity of Article 28 of the Act on the Internal Security Agency, Article 18 of the Central Anti-Corruption Bureau Act and Article 32 of the Act on the Military Counter-Intelligence Service to Article 51(2) in conjunction with Article 31(3) of the Constitution.
12.2.1. The challenged provisions regulate granting access to telecommunications data to the functionaries of the Internal Security Agency, the Central Anti-Corruption Bureau and the Military Counter-Intelligence Service. Although the applicant narrows down the scope of his allegation, his point is that there is no regulation which is necessary from the point of view of the Constitution. In other words, the constitutional issue here concerns the fact that the challenged provisions do not mention a procedure for verification and destruction of data which are irrelevant (i.e. useless) to given proceedings. In his view, this infringes Article 51(2) in conjunction with Article 31(3) of the Constitution.
12.2.2. Pursuant to Article 51(2) of the Constitution, public authorities may not obtain, collect and disclose information about citizens other than that which is necessary in a democratic state ruled by law. As it has been pointed out in the jurisprudence of the Constitutional Tribunal, the said provision has a double significance. Firstly, it legalises the activity of public authorities that consists in obtaining, collecting and disclosing information on individuals in a different way than when such data are provided by citizens themselves. This also includes data collected in secret by authorities without any knowledge and consent of the individual. Secondly, the provision, to some extent, autonomously sets out the premisses of the legality (limits) of such activities, by restricting the legislator’s discretion to determine the scope of tasks and competence – assigned to the organs of the state – which comprise obtaining data on citizens (cf. the judgment of the Constitutional Tribunal of 17 June 2008, ref. no. K 8/04, part III, point 2 and the jurisprudence cited therein).
In Article 51(2) of the Constitution, the constitution-maker does not define “information (…) which is necessary in a democratic state ruled by law”; the Tribunal deems that the assessment of the necessity should be carried out by taking account of the principle of proportionality that arises from Article 31(3) of the Constitution. As a result, an infringement of informational self-determination that consists in obtaining, storing or disclosing information on citizens by public authorities should always meet requirements defined in Article 31(3) of the Constitution (see the judgment of the Constitutional Tribunal of 20 November 2002, ref. no. K 41/02, part V, point 27). As it was indicated by the Tribunal in another judgment: “the norm expressed in Article 51(2) of the Constitution is not autonomous in character. In the said provision, the constitution-maker explicitly mentions a restriction to rule out the possibility that the scope of information on citizens, collected by public authorities, will be determined in an arbitrary way in ordinary statutes and emphasises that the restriction is necessary and should adhere to standards that are binding in a democratic state ruled by law; however, he does not specify the catalogue of constitutionally protected interests (values) which – in his view – may be weighed up in the course of assessing the admissibility of such a solution. In this context, it is necessary to make reference to the general regulation of Article 31(3) of the Constitution, pursuant to which any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights” (the judgment of the Constitutional Tribunal of 17 June 2008, ref. no. K 8/04, part III, point 2). An additional restriction specified in Article 51(2) of the Constitution, which rules out the possibility of obtaining information other than that which is necessary, should be justified by the fact that “infringements of the right to informational self-determination ‑ caused by requests for access to information on the individual which is unnecessary, but convenient, for public authorities – constitute a tool that is typical for modern times, which public authorities willingly use and thanks to which they confirm their position in relation to the individual. Informational self-determination, which is normatively singled out from the entirety of the protection of privacy in Article 51, is justified by frequent, persistent and casual interference in privacy by public authorities. The normative singling out of informational self-determination – by introducing a separate prohibition in Article 51(2) of the Constitution – makes it easier to identify such interference and simplifies the process of proving that such interference has taken place. Indeed, what is to be proved then is only whether the obtaining of information was necessary, or whether it was merely ‘convenient’ or ‘useful’ for authorities. It needs to be proved that a given infringement of the right to informational self-determination was necessary in a democratic state ruled by law” (the judgment of the Constitutional Tribunal of 20 November 2002, ref. no. K 41/02, part V, point 27).
In its jurisprudence concerning operational and investigative activities, the Tribunal has tried to specify the term ‘data which are necessary in a democratic state ruled by law’. In its judgment in the case K 32/04, the Tribunal stressed that: “in a democratic state ruled by law, it is unnecessary to store information on citizens that has been obtained in the course of operational activities because of the potential usefulness of that information. This may only be resorted to in the context of specific proceedings, conducted on the basis of a statute restricting freedom for the sake of safeguarding national security and public order” (the judgment of the Constitutional Tribunal of 12 December 2005, ref. no. K 32/04, part III, point 4.7). In the present case, the Tribunal holds the same view.
In Article 51(2) of the Constitution, the constitution-maker has clearly referred the prohibition expressed therein to the action of obtaining information on “citizens”. This might suggest that public authorities could obtain, collect and store information on other individuals (e.g. persons who are not Polish citizens) within a much broader scope than in the case of citizens, i.e. also information which is not necessary in a democratic state ruled by law. The adoption of such a stance would entail assuming varying degrees of protection with regard to individuals’ privacy, depending on whether they hold Polish citizenship or not. The Constitutional Tribunal does not rule out such differentiation, provided that it may not be regarded as a rule, and that in no case may it result in arbitrary differentiation among the subjects of those constitutional rights and freedoms which the constitution-maker has not characterised as granted exclusively to citizens. Bearing in mind, above all, Article 30 and Article 37(1) of the Constitution, one should adopt – as a starting point – a uniform standard for interference in constitutional rights and freedoms, regardless of the fact whether the subject thereof is a Polish citizen or not. Every person who is subject to the jurisdiction of the Republic of Poland, i.e. subject to Polish law (see the judgment of the Constitutional Tribunal of 15 November 2000, ref. no. P 12/99, OTK ZU No. 7/2000, item 260) – regardless of whether s/he holds Polish citizenship or not – may rightly expect protection against unjustified interference in the rights and freedoms that s/he is entitled to. In the context of the present case, one should in fact assume that it is necessary to establish the same standards for obtaining, collecting or storing data gathered by public authorities in the course of operational and investigative activities with regard to all persons that are subject to the jurisdiction of the Republic of Poland.
With such rendition of the principle of uniform protection, it will be admissible to introduce exceptions, in a statute, with regard to foreigners that are subject to Polish law. This is determined by Article 37(2) of the Constitution. The Tribunal is aware of doctrinal controversy ignited by mutual relations between Article 37(2) and Article 31(3) of the Constitution (see inter alia L. Garlicki, comment 8 on Article 37 [in:] Konstytucja…, t. III, p. 6 et seq.). However, the Tribunal is inclined to agree with the view that Article 37(2) of the Constitution may not be regarded as lex specialis that excludes the application of Article 31(3) of the Constitution, as then foreigners would, in fact, have no constitutionally guaranteed rights (ibid., pp. 8-9). Therefore, every restriction imposed on rights or freedoms that are not reserved only for citizens should be proportionate within the meaning of Article 31(3) of the Constitution, as well as it may not violate the essence of the rights or freedoms. By contrast, the result of Article 37(2) of the Constitution being in force is a possibility to provide a more flexible interpretation of particular requirements that make up the principle of proportionality, which warrants a greater extent of interference in rights and freedoms granted to foreigners than in those reserved for citizens. This view may also be confirmed by the wording of Article 51(2) of the Constitution, which has been indicated as a higher-level norms for the review in the present case, and which clearly focuses on the requirement of necessity when it comes to obtaining, collecting and storing data on citizens.
The above assumption does not rule out the admissibility of a different way of specifying grounds for obtaining and processing data in the context of persons who are not Polish citizens (e.g. data obtained by intelligence services on the activity of foreigners abroad), although in every case, such actions taken by public authorities must comply with the standards of a state ruled by law.
12.2.3. The Constitutional Tribunal agrees with the applicant’s allegations raised with regard to Article 28 of the Act on the Internal Security Agency, Article 18 of the Central Anti-Corruption Bureau Act and Article 32 of the Act on the Military Counter-Intelligence Service. As indicated above (see part III, point 5.1.3 of this statement of reasons), a prerequisite for the secret obtaining of information on individuals, including telecommunications data related to them, is to devise a procedure for the immediate selection and destruction of material that is useless and inadmissible. The said solution prevents situations where information which has been legally obtained by the organs of the state is used in an unauthorised way as well as is stored in case it proves useful for other purposes in the future. As emphasised earlier, what constitutes interference in the realm of the individual’s privacy is not only one instance of obtaining data on the individual (inter alia in accordance with the procedures set out in Article 28(1) of the Act on the Internal Security Agency, Article 18(1) of the Central Anti-Corruption Bureau Act and Article 32(1) of the Act on the Military Counter-Intelligence Service), but also any further processing of those data, including storing them or re-using them in the course of other proceedings (see part III, point 1.9 of this statement of reasons).
The challenged provisions do not regulate procedures for handling telecommunications data, after they have been collected on the basis of Article 28(1) of the Act on the Internal Security Agency, Article 18(1) of the Central Anti-Corruption Bureau Act and Article 32(1) of the Act on the Military Counter-Intelligence Service. The issue of handling data collected on the said basis has not been addressed by the legislator. At the same time, there is no legal basis for the proper application of the provisions that regulate the destruction of data collected in the course of operational surveillance or the provisions of the Code of Criminal Procedure which regulate the interception and recording of conversations (Article 237 and the subsequent provisions of the said Code). This entails that in the light of Article 28(1) of the Act on the Internal Security Agency, Article 18(1) of the Central Anti-Corruption Bureau Act and Article 32(1) of the Act on the Military Counter-Intelligence Service, there are no regulations concerning the verification and destruction of useless data. Thus, it is not prohibited to store data that are irrelevant to given proceedings, in the course of which access to such data was requested, or which are useless for other constitutionally justified purposes. As aptly pointed out by the Marshal of the Sejm in his letter of 2 March 2012, the challenged provisions lead to a situation where data on individuals may be stored only due to the fact that the thorough verification of the data was discontinued.
The Constitutional Tribunal does not negate the admissibility of further storage of telecommunications data (i.e. after they have been analysed and deemed irrelevant to proceedings that are pending in a given case) in the context of foreigners that are subject to the jurisdiction of the Republic of Poland, especially if there are serious and justified suspicions that they may be involved in activity undermining national security, such as terrorist activity and organised crime. Such differentiation in the degree of protection may be derived primarily from Article 51(2) and Article 37(2) of the Constitution.
Taking the above into consideration, Article 28 of the Act on the Internal Security Agency, Article 18 of the Central Anti-Corruption Bureau Act and Article 32 of the Act on the Military Counter-Intelligence Service, insofar as they do not provide for the destruction of data that are irrelevant to given proceedings, are inconsistent with Article 51(2) in conjunction with Article 31(3) of the Constitution.
12.3. The assessment of the conformity of Article 36b(5) of the Act on Fiscal Supervision to Article 51(2) in conjunction with Article 31(3) of the Constitution.
12.3.1. The challenged provision reads as follows:
“A competent minister for public finance shall order the immediate, witnessed and recorded destruction of data obtained from the providers of telecommunications services or postal services, if s/he deems that filing the application referred to in para 2 is unjustified”.
12.3.2. In this context, the applicant properly determined the scope of the regulation of Article 36b(5). What indeed follows from the said provision is that only data obtained from the providers of telecommunications and postal services on the basis of an unjustified application are subject to destruction. The Ombudsman is right, stating that the provision sets out grounds for the destruction of data within an excessively narrow scope. It does not provide for the destruction of data which have been collected on the basis of a justified application, but which are irrelevant to proceedings that are pending.
The assessment of the constitutionality of Article 36b(5) of the Act on Fiscal Supervision, in the context of the aforementioned allegation, may not be isolated from the entirety of regulations on the obtaining and storing telecommunications data by the fiscal intelligence service, and in particular from Article 36d(3) of the said Act. Pursuant to Article 36d(3), “Material obtained as a result of actions taken on the basis of Article 36aa(1), Article 36b(1), Article 36c(1) and (2) or Article 36ca(1) – which does not contain evidence to institute proceedings in a case concerning an offence or a fiscal offence, or which is irrelevant to review proceedings – is subject to immediate, witnessed and recorded destruction”.
Bearing in mind the wording of that provision, the Marshal of the Sejm assumed that the legal system provides guarantees for the destruction of useless data; the omission of such guarantees was alleged by the applicant (pp. 59-60 of the Marshal’s letter of 2 March 2012). Challenged Article 36b(5) of the said Act constitutes an additional ground for destroying telecommunications data obtained in the course of activity conducted by the fiscal intelligence service. Consequently, the Marshal of the Sejm concluded that Article 36b(5) of the said Act was consistent with the above-indicated higher-level norms for the review.
As it follows from the justification for the application and information provided at the hearing, the Ombudsman challenges legislative omission. He points out that there is a provision that guarantees the destruction of data, but it does so within a scope that is insufficient from the point of view of the Constitution. In the Tribunal’s opinion, what constitutes an issue that needs to be addressed in this context is not – as the applicant argues – legislative omission in Article 36b(5) of the Act on Fiscal Supervision, caused by the excessively narrow regulation of grounds for the destruction of telecommunications data collected by the fiscal intelligence service. In fact, the constitutional issue in this context is the excessively broad scope of regulation in Article 36d(3) of the said Act, which permits the storage and use of previously obtained data for purposes which are not constitutionally justified. In other words, the issue is not what the legislator has not regulated ‑ although adhering to the Constitution, he should have regulated – but what he has regulated in a different statutory provision that is not challenged by the applicant in this case.
The Constitutional Tribunal states that the applicant has formulated the allegations with respect to the wrong provision. When adjudicating, the Tribunal is bound by the limits of the application, pursuant to Article 66 of the Constitutional Tribunal Act; the said limits are determined by the subject of the application and the selected higher-level norms for the review. Considering the petitum and the justification for the Ombudsman’s application of 1 August 2011, it is hard to assume – even by making reference to the principle of falsa demonstratio non nocet (see the judgement of the Constitutional Tribunal of 15 July 2013, ref. no. K 7/12, OTK ZU No. 6/A/2013, item 76, part III, point 1.3) – that the applicant’s intention was to challenge a different provision, i.e. Article 36d(3) of the Act on Fiscal Supervision, or rather – the assigning of the allegations and the justification thereof to Article 36d(3), and not – as done by the applicant – to Article 36b(5) of the said Act. The applicant’s entire argumentation (quite laconic actually) focuses on the lack of a mechanism for destroying data that are useless for given proceedings. The applicant has not discussed the scope ratione materiae of the storage and further use of telecommunications data. The mechanism which, according to the Ombudsman, is missing from the legal system does exist, but may raise constitutional reservations. However, the said issue may not be assessed in these review proceedings. Taking account of the scope of the Ombudsman’s application, interpreted in the light of the principle of falsa demonstratio, as well as the information provided at the hearing, the Tribunal has no possibility to determine a constitutional issue that is rendered in this way. Consequently, the Tribunal states that Article 36b(5) of the Act on Fiscal Supervision is consistent with Article 51(2) in conjunction with Article 31(3) of the Constitution. Indeed, the said provision introduces an additional guarantee the existence of which could not be deemed unconstitutional. On the contrary, the guarantee should be regarded as a solution that enhances the lawfulness of the activity carried out by the fiscal intelligence service, and thus raises the level of protection of the individual’s rights and freedoms.
12.4. The assessment of the conformity of Article 75d(5) of the Act on the Customs Service to Article 51(4) of the Constitution.
12.4.1. The challenged provision reads as follows:
“Material obtained as a result of activities carried out on the basis of para 2, which contains no information that is relevant to proceedings concerning fiscal misdemeanours or offences shall be subject to immediate, witnessed and recorded destruction”.
12.4.2. Although challenged Article 75d(5) of the Act on the Customs Service requires the Customs Service to destroy telecommunications data which are useless for proceedings conducted by the said Service, the provision sets out grounds for preserving collected material in an excessively broad way, which has been challenged by the Ombudsman. The destruction of material is to be carried out only with regard to material which contains no information that is relevant to proceedings in cases concerning fiscal misdemeanours or offences. As aptly pointed out by the Ombudsman, “the Customs Service may obtain telecommunications data within a narrow scope for the purpose of preventing or detecting fiscal offences related to the organisation of gambling, but it does not have to destroy material which, although irrelevant in view of the said purpose, is relevant to other proceedings in cases concerning any fiscal misdemeanours or offences. In other words, a different purpose is pursued when the Customs Service obtains telecommunications data and a different one when the said data are stored (p. 13 of the Ombudsman’s application of 27 April 2012). However, the applicant does not propose that every individual could request that data acquired illegally be deleted, but that a statutory mechanism, operating in a sense automatically, should be created for the exercise of the subjective right provided for in Article 51(4) of the Constitution.
12.4.3. Pursuant to Article 51(4) of the Constitution: “Everyone shall have the right to demand the correction or deletion of untrue or incomplete information, or information acquired by means contrary to statute”.
In this provision, the constitution-maker has distinguished between two types of rights which are granted to the individual when it comes to information concerning him/her. Firstly, the right to request that this information be corrected. Secondly, the right to request that the information be deleted. The linguistic and logical interpretation seems to indicate that information which is subject to correction or deletion must be “untrue”, “incomplete”, or “acquired by means contrary to statute”. Relying on the linguistic meaning of those phrases, it may be assumed that untrue information is information which does not correspond to the actual state of affairs, whereas incomplete information – lacks all details, and distorts reality. By contrast, as regards the last category of information set out in Article 51(4), emphasis is placed on the way of collecting information by a given entity which keeps the information, and not on the content thereof (cf. the judgment of the Constitutional Tribunal of 12 December 2005, ref. no. K 32/04, part III, point 5.1). Thus, “information acquired by means contrary to statute” does not need to be untrue or incomplete at the same time. In fact, it may happen that information will completely and accurately reflect the actual state of affairs (the situation of the individual), yet – despite being true and complete – it has been obtained illegally, and thus it will have to be destroyed in the light of Article 51(4) of the Constitution. Although the constitution-maker has not determined in a precise way what rights arising from Article 51(4) are to be granted to the individual with regard to each of the three types of information, it should be assumed that correction may apply to untrue or incomplete information, whereas deletion – above all (though not exclusively) – refers to information acquired by means contrary to statute.
The Tribunal deems that, in the light of Article 51(4) of the Constitution, the case of “information acquired by means contrary to statute” may occur in three types of situations. First of all, when the obtaining of a given kind of information is not at all admissible under the Constitution. Secondly, when information is not obtained on the basis of a statute and within limits explicitly set there. Thirdly, when the obtaining of information is admissible under the Constitution or a statute, but is carried out in breach of a procedure specified by law.
12.4.4. The constitutional issue raised by the Ombudsman amounts to addressing a question that is very narrow in scope, namely: may data obtained by an organ of the state, in compliance with a relevant statute, be collected and possibly used for a different purpose than the original purpose for obtaining them?
The applicant has not challenged the provision regulating the purpose of collecting data in the light of the principle of proportionality, and in particular he has not alleged that when telecommunications data collected for the prevention or detection of fiscal offences set out in chapter 9 of the Penal Fiscal Code are used to prevent and detect other fiscal offences or misdemeanours, this results in excessive interference – considering the mass scale of secretly collected data – in the right to the protection of privacy, the privacy of communication and informational self-determination that are enjoyed by the individual.
12.4.5. The Constitutional Tribunal agrees with the allegations raised by the Ombudsman in the context of Article 75d(5) of the Act on the Customs Service, although the Tribunal perceives the constitutional issue slightly differently in the light of the higher-level norm for the review indicated by the applicant. The applicant has stated that Article 75d(5) makes it possible to retain telecommunications data not only when they are of relevance to proceedings in cases concerning fiscal offences referred to in chapter 9 of the Penal Fiscal Code, but also when they are relevant to proceedings in cases concerning any other fiscal offences or misdemeanours, without any exception, even those not specified in chapter 9 of the said Code. However, the Tribunal points out that the proper interpretation of Article 75d(5) of the Act on the Customs Service – i.e. one arrived at in the light of the Constitution – gives no reasons for assigning the provision with such a broad scope, as done by the applicant. Indeed, the provision regulating grounds for collecting data (para 5) is included in the same article of the Act as the provision that determines the purpose of obtaining data (para 1). Thus, the two provisions should be interpreted together. Then the challenged provision will be construed as limited only to fiscal offences and misdemeanours specified in chapter 9 of the Penal Fiscal Code, to which reference is made in Article 75d(1) of the Act on the Customs Service. Still, the Tribunal assumes that the Ombudsman, being a constitutional state authority, analysed the application of the challenged provision. Therefore, the Tribunal assumes that the said provision is interpreted by competent organs of the state in the same as indicated by the Ombudsman.
Furthermore, the Constitutional Tribunal assumes that Article 75d(5) of the Act on the Customs Service, which regulates grounds for destroying material that is useless for proceedings which are pending, is not merely procedural in character, but – to some extent – is a substantive provision. It specifies statutory requirements for collecting information on individuals, such as telecommunications data, in compliance with the statute. Only after considering Article 75d(1) and (5) can one assess whether certain information was “acquired by means contrary to statute”, i.e. whether the rule set out in Article 51(4) of the Constitution applies to the information. In other words, in the light of the higher-level norm for the review indicated by the applicant, evaluation as to whether the Customs Service collects information legally may not be limited to the original purpose for collecting given data (Article 75d(1)). Such evaluation must also take account of grounds for data storage, which are determined in Article 75d(5) of the Act on the Customs Service.
It should be borne in mind that the legislator has in a relatively narrow way set the admissible scope of obtaining telecommunications data by the Customs Service. In the light of Article 75d(1) of the Act on the Customs Service, this is statutorily admissible for the purpose of preventing and detecting fiscal offences specified solely in chapter 9 of the Penal Fiscal Code, i.e. offences related to the organisation of gambling. Applying for access to those data is possible with relation to particular proceedings, if there is a suspicion that a fiscal offence defined in a specific chapter of a relevant criminal-law statute has been committed. Therefore, in every case, where at the moment of collecting telecommunications data by the Customs Service, there is a constitutionally or statutorily legitimate purpose which justifies the obtaining of the data, and this is carried out in accordance with a procedure set out by statute, it should be deemed that the said data have been obtained in compliance with the statute. In the Tribunal’s opinion, if – in the course of collecting data – it turns out that the said data do not contain evidence for the commission of a fiscal offence, or they are useless for further proceedings in the context of the fiscal offence with relation to which they have been collected, but they will be useful for the prevention or detection of other prohibited acts specified in chapter 9 of the Penal Fiscal Code, they should be regarded – in the light of Article 75d(5) of the Act on Customs Service – as collected in accordance with the statute and should be allowed to be used by the Customs Service. They may also be regarded as necessary in a democratic state, since undoubtedly a constitutionally legitimate purpose is to detect the commission of prohibited acts and to prevent them. Still, the Tribunal does not determine whether the use of obtained telecommunications data for the purpose of detecting or preventing any fiscal offences and misdemeanours, which are penalised under chapter 9 of the Penal Fiscal Code, may be regarded as proportionate in the context of the mass collection of telecommunications data. The applicant has not raised such an allegation, and just focused on the procedural issue. In particular, he has not indicated Article 31(3) in the Constitution as a higher-level norm for the review in this context.
In this state of affairs, the Constitutional Tribunal deems that Article 75d(5) of the Act on the Customs Service – insofar as it provides for the retention of data other than those containing information that is relevant to proceedings concerning fiscal misdemeanours or offences specified in chapter 9 of the Penal Fiscal Code – is inconsistent with Article 51(4) of the Constitution.
13. The discontinuation of the review proceedings.
13.1. The discontinuation of the review proceedings, due to the fact that part of the application has been withdrawn.
13.1.1. At the hearing on 30 July 2014, the Public Prosecutor-General withdrew his application of 21 June 2012 in the part concerning Article 46(1) of the Press Act indicated in conjunction with other provisions. The said provision had been ruled to be inconsistent with Article 2 and Article 42(1) of the Constitution in the judgment of the Constitutional Tribunal of 1 December 2010, ref. no. K 41/07 (Journal of Laws ‑ Dz. U. No. 235, item 1551), and had ceased to have effect as of 14 June 2012.
Taking the above into account, on the basis of Article 39(1) of the Constitutional Tribunal Act, the Tribunal decides to discontinue the review proceedings within the scope indicated by the applicant.
13.2. The discontinuation of the review proceedings within the scope of reviewing the conformity of Article 31(1) in conjunction with Article 5(1)(1)(g) of the Act on the Military Counter-Intelligence Service to Article 2, Article 47, Article 49 in conjunction with Article 31(3) of the Constitution as well as Article 8 of the Convention.
13.2.1. Challenged Article 31(1) of the Act on the Military Counter-Intelligence Service reads as follows:
“When carrying out operational and investigative activities, assigned to the Military Counter-Intelligence Service for the purpose of performing tasks set out in Article 5, where other measures have proved to be ineffective or will be useless, the court – upon a written application by the Head of the Military Counter-Intelligence Service, filed after obtaining written permission from the Public Prosecutor-General – may issue a decision to order operational surveillance”.
Pursuant to Article 5(1)(1)(g) of the Act on the Military Counter-Intelligence Service:
“The tasks of the Military Counter-Intelligence Service shall comprise the following: the investigation, prevention and detection of offences committed by soldiers in service, functionaries of the Military Counter-Intelligence Service and the Military Intelligence Service as well as employees of the Armed Forces of the Republic of Poland and of other organisational units of the Ministry of National Defence, where the said offences (…) are related to terrorist activity, as well as offences other than those enumerated in points (a)-(f), which undermine the defence potential of the following: the state, the Armed Forces of the Republic of Poland, the organisational units of the Ministry of Defence, and foreign states that guarantee reciprocity”.
The Public Prosecutor-General raised allegations about unconstitutionality only insofar as the ordering of operational surveillance was admissible in the case of offences other than those enumerated in Article 5(1)(1)(a)-(f), which undermined the defence potential of the state, the Armed Forces of the Republic of Poland, the organisational units of the Ministry of Defence, and foreign states that guaranteed reciprocity. He indicated the following provisions as higher-level norms for the review: Article 2, Article 47, and Article 49 in conjunction with Article 31(3) of the Constitution as well as Article 8 of the Convention.
13.2.2. Formal requirements that need to be met by an application or a question of law, referred to in Article 32(1)(3) and Article 32(1)(4) of the Constitutional Tribunal Act, include inter alia: formulating an allegation about the non-conformity of a normative act to the Constitution, a ratified international agreement or a statute (para 3) as well as providing justification for the allegation and evidence in support thereof (para 4).
The Constitutional Tribunal states that the applicant has failed to meet the second of the above-indicated requirements, i.e. has not justified how the said provisions of the Constitution and the Convention are infringed in this context, and he has presented no evidence in support of his allegation. Although, when reviewing the hierarchical conformity of norms, the Constitutional Tribunal is obliged to consider all relevant circumstances in order to examine the case thoroughly, is not bound by evidentiary submissions filed by participants in the proceedings, and may, ex officio, admit evidence which it considers to be relevant to the examination of the case (Article 19 of the Constitutional Tribunal Act), this does not mean that the burden of proof lies with the Tribunal.
The Public Prosecutor-General formulates his allegation of unconstitutionality in general terms; in fact, he relies on the same argumentation as in the case of the other provisions of statutes that regulate the competence of police forces within the scope of carrying out operational surveillance. In support of his allegation, he also makes reference to the so-called signalling decision issued by the Tribunal in the case S 4/10, which concerned the Act on the Internal Security Agency, which is regarded as relevant here in the context of Article 31(1) in conjunction with Article 5(1)(1)(g) of the Act on the Military Counter-Intelligence Service. Furthermore, he argues that the term ‘offences which undermine the defence potential of the state, the Armed Forces of the Republic of Poland, the organisational units of the Ministry of National Defence, and foreign states that guarantee reciprocity’ is not sufficiently specified; as a result, it is impossible to determine what offences are meant there. Yet, he does not present any premisses which could prove the adequacy of that thesis. From the point of view of formal requirements set for applications, it should be deemed insufficient to state that Article 5(1)(1)(g) of the Act on the Military Counter-Intelligence Service is an incomprehensible provision and phrases included therein are not used in the legal language. It is necessary in the present case to thoroughly justify the allegation that the challenged provision is imprecise, considering the Tribunal’s judgment of 27 June 2008 in the case K 51/07 (part III, point 6.1.), in which the Tribunal addressed inter alia the issue of compliance of Article 70a(1) of the Introductory Law to the Act on the Military Counter-Intelligence Service with the principle of specificity of law. With reference to the allegation that the challenged provision had infringed the principle of specificity of legal regulations and the principle that the organs of public authority should function on the basis of, and within the limits of, the law, as it was impossible to precisely determine the scope of the activity of military intelligence services prior to 2003, the Tribunal concluded in the above-mentioned judgment that: “the terms ‘the defence system of the state’ and ‘the security of the Armed Forces of the Republic of Poland’ are sufficiently precise for the purpose of specifying the scope of activity carried out by the organs of public authority. Every term in the general language, to some extent, lacks specificity, which stems from the very nature of the language. The attainment of a higher degree of precision in the course of drafting the wording of normative acts is not possible. The risk of arbitrary actions on the part of the organs of public authority occurs, above all, in situations where the law does not provide for a judicial review of the application of law by the executive”. For this reason, the Constitutional Tribunal did not rule that there had been infringements of the principle of specificity of law (Article 2) and of the principle which states that the actions of the organs of public authority should be based on and limited by law (Article 7 of the Constitution). Bearing in mind the above theses from the statement of reasons for the judgment in the case K 51/07, the Public Prosecutor-General should have explained why the challenged regulation had infringed the constitutional principle of specificity of law, even though procedural guarantees had been in place, which comprised inter alia the ordering of operational surveillance by the court and the existence of the premiss of subsidiarity.
Also, the Public Prosecutor-General did not try to determine what offences the challenged provision might potentially refer to. In particular, he did not explain whether the catalogue of offences set out in Article 5(1)(1)(g) of the Act on the Military Counter-Intelligence Service does not in fact constitute an empty set, as the scope of the regulation of Article 5(1)(1)(a)-(f) of the said Act exhausts all statutory types of offences which undermine such interests as the defence potential of the following: the state, the Armed Forces of the Republic of Poland, the organisational units of the Ministry of Defence, and foreign states that guarantee reciprocity.
When raising his allegation about disproportionate interference in the right to the protection of privacy and in the privacy of communication, the Public Prosecutor-General did not justify in any way what constituted the supposed disproportionate restriction of constitutional rights. Thus, it is not clear whether the reason for the unconstitutionality is an excessively broad catalogue of offences with regard to which one may carry out – on the basis of Article 31(1) in conjunction with Article 5(1)(1)(g) – operational surveillance (at the same time, it should be stressed that the applicant did not at all indicate with regard to what kind of offences operational surveillance was excessive), or whether it is the uselessness of operational surveillance for the investigation, detection, and possibly prevention of some of the offences.
The Constitutional Tribunal also points out that there is no justification for the allegation that Article 31(1) in conjunction with Article 5(1)(1)(g) of the Act on the Military Counter-Intelligence Service is inconsistent with Article 8 of the Convention. Within that scope, the applicant made reference to more general theses selected from the jurisprudence of the ECHR. However, he made no reference to the Polish determinants; nor did he explain any reasons why the formal and substantive grounds for the admissibility of applying measures for the secret obtaining of information, which had been required in the jurisprudence of the Strasbourg Court, were allegedly inconsistent with Article 8 of the Convention.
The discontinuation of the review proceedings within the above scope does not hinder – in the event of a future review of the provision – conducting a substantive review, provided that the requirements set out in Article 32 of the Constitutional Tribunal Act will be met.
Taking the above into consideration, the Constitutional Tribunal has decided to discontinue the review proceedings within the indicated scope, on the grounds that the issuing of a ruling is inadmissible (Article 39(1)(1) of the Constitutional Tribunal Act).
13.3. The discontinuation of the review proceedings within the scope of reviewing the conformity of Article 31(1) in conjunction with Article 5(1)(9) of the Act on the Military Counter-Intelligence Service to Article 2, Article 47, and Article 49 in conjunction with Article 31(3) of the Constitution, as well as Article 8 of the Convention.
13.3.1. Article 5(1)(9) of the Act on the Military Counter-Intelligence Service reads as follows:
“The tasks of the Military Counter-Intelligence Service shall comprise tasks assigned to that Service in other statutes as well as international agreements that bind the Republic of Poland”.
Considering the normative content of Article 31(1), the legislator has permitted the ordering of operational surveillance not only for the purpose of fighting crime, but also for the purpose of performing other tasks which have not been specified in the Act on the Military Counter-Intelligence Service, but which have been assigned to the Service in other normative acts.
13.3.2. In the opinion of the Tribunal, also with regard to that provision, the applicant has not met the requirements arising from Article 32(1)(4) of the Constitutional Tribunal Act, i.e. he has not justified the allegation about the non-conformity of the provision to the Constitution and the Convention. The entire argumentation amounts to the thesis that the legislator does not specify particular actions of the Military Counter-Intelligence Service, when he authorises the Service to carry out operational surveillance. This is alleged to result in a situation where every case of assigning new tasks to the Service by statute or in international agreements extends the scope ratione materiae of operational surveillance.
The Public Prosecutor-General based his allegation on a potential infringement of rights and freedoms with relation to the acceptance of new international obligations. However, he did not indicate any tasks assigned to the Military Counter-Intelligence Service in other statutes or international agreements with regard to which operational surveillance might be carried out on the basis of Article 31(1) in conjunction with Article 5(1)(9) of the Act on the Military Counter-Intelligence Service. Also, the Constitutional Tribunal has found no tasks that would be assigned to the said Service in normative acts other than the Act on the Military Counter-Intelligence Service. Therefore, the allegation of unconstitutionality is only hypothetical in character and is based on a far-reaching simplification.
The Tribunal draws attention to the fact that, when enacting provisions that assign new tasks to the Military Counter-Intelligence Service, the legislator must be aware of the fact that this will extend the scope of operational surveillance carried out by the said Service. The challenged provision will automatically open up the possibility of resorting to operational surveillance with relation to any new tasks that will be assigned to the Service by statute or in an international agreement. Consequently, when assigning the new tasks, the legislator will be obliged to fulfil requirements arising inter alia from this judgment with regard to provisions regulating the secret obtaining of information on individuals, and in particular requirements implied by the test of proportionality and the principle of specificity of regulations. In the event of the future challenging of provisions of other statutes or international agreements assigning certain tasks to the Military Counter-Intelligence Service, the discontinuation of the present review proceedings within the above scope does not hinder a review of such a provision in conjunction with Article 31(1) and in conjunction with Article 5(1)(9), as well as of Article 31(1) in conjunction with Article 5(1)(9) of the Act on the Military Counter-Intelligence Service, on the condition that formal requirements set out in Article 32 of the Constitutional Tribunal Act will be met.
Taking the above into consideration, the Constitutional Tribunal has decided to discontinue the review proceedings within the indicated scope, on the grounds that the issuing of a ruling is inadmissible (Article 39(1)(1) of the Constitutional Tribunal Act).
13.4. The discontinuation of the review proceedings on the grounds that the issuing of a ruling is useless.
In accordance with the well-established jurisprudence of the Constitutional Tribunal, if the Tribunal declares the unconstitutionality of a given challenged regulation to at least one of indicated higher-level norms for review, the review proceedings within the scope of examining of the conformity of the said regulation to the other higher-level norms may be discontinued on the basis of Article 39(1)(1) of the Constitutional Tribunal Act, on the grounds that the issuing of a ruling is useless (see the judgment of the Constitutional Tribunal of 12 January 2012, ref. no. Kp 10/09, OTK ZU No. 1/A/2012, item 4, part III, point 3.8 and the jurisprudence indicated therein). Taking this into account, the Tribunal has on that basis decided to discontinue the review proceedings of provisions which it ruled to be unconstitutional with at least one of the indicated higher-level norms for the review. Such a solution, which is justified for the sake of the efficiency of proceedings, may not however be interpreted as approval expressed for the challenged provisions that interfere in the constitutional right to the protection of privacy, informational self-determination and the protection of the privacy of communication in the light of the higher-level norms for the review, in the context of which the review proceedings have been discontinued on the basis of Article 39(1)(1) of the Constitutional Tribunal Act. When drafting new regulations within the ambit of operational surveillance and within the scope of the disclosing and processing of telecommunications data, the legislator is obliged to take into account the constitutional standard concerning operational and investigative activities, presented in this judgment (see part III point 4 of this statement of reasons).
14. The deferral of the date when the provisions will cease to have effect.
The Tribunal has decided to defer the date when the unconstitutional provisions indicated in points 2, 5, 6 and 8 in part II of the operative part of the judgment will cease to have effect. These are provisions concerning: operational surveillance in the Act on the Internal Security Agency with regard to “offences against the essential economic interests of the state” (point 2); the obtaining of telecommunications data (point 5); the protection of professional confidentiality in the course of operational surveillance (point 6); and the destruction of useless telecommunications data in the statutes on the Internal Security Agency, the Military Counter-Intelligence Service and the Central Anti-Corruption Bureau (point 8).
In the light of the previous jurisprudence of the Tribunal, during the period of deferral, the said provisions remain part of the legal system and they may be applied appropriately by the organs of public authority. However, in the further application thereof, it should be borne in mind that their presumption of constitutionality has been overturned.
The said determination is justified by the necessity to limit the threat that there may prove to be no effective mechanisms to counteract risks, which could lead to an increase in crime, or the threat that the detection of risks will be undermined.
The Tribunal has deferred the date when the provisions will cease to have effect by a maximum period provided in Article 190(3) of the Constitution, i.e. by 18 months. Considering the reservations as to the constitutionality of certain regulations on operational surveillance, indicated in the decision of the Constitutional Tribunal in the case S 4/10, as well as the constitutional standard with which the legislator is sufficiently familiar, as it was recalled a number of times in the Tribunal’s previous jurisprudence, the said time-limit is regarded by the Tribunal to be sufficient for the introduction of relevant legislative changes.
Taking the above into consideration, the Constitutional Tribunal has adjudicated as in the operative part of the judgment.
Dissenting Opinion
of Judge Mirosław Granat
to the statement of reasons for the judgment of the Constitutional Tribunal
of 30 July 2014, ref. no. K 23/11
The Constitutional Tribunal, when presenting its view on the privacy of the individual in the context of operational surveillance carried out by state security services and police forces, simplified the issue of the freedom of the person, which arises from Article 31 of the Constitution. The Tribunal did not fully reconstruct the freedom of the individual in the light of the said provision. Consequently, it did not specify a point of reference by means of which it resolves disputes over freedom. The relation between the freedom of the person and the protection of national security and public order in the digital age (part III point 1 of the statement of reasons), which is vital in the present case, has thus become unclear.
1. According to the Tribunal, freedom is the reflection of Article 31(2) of the Constitution. Every individual has a realm of freedom (positive freedom) in which no-one may impose anything on him/her (negative freedom). In the Tribunal’s view, both freedoms are two sides of the same situation. They are linked logically and one may not exist without the other. Freedom is “positive” (looking at it from the point of view of who it is assigned to) and also “negative” (taking the perspective of the one who needs to refrain from any interference). These are, as described by the Tribunal, “aspects of freedom”.
The approach presented by the Constitutional Tribunal in the statement of reasons creates paradoxes in the expression of freedom. This is shown by part III point 1 of the statement of reasons. As the Tribunal asserts, it is possible to entirely depart from respecting “the negative aspect” of a constitutional freedom, under certain conditions, provided in paragraph 3 of Article 31 of the Constitution. If it is possible in the light of the Constitution to depart from respecting the freedom which the Tribunal describes as “negative freedom”, then such an approach – in my opinion – blurs the sense of freedom. I object to such a conclusion. This indeed entails that freedom becomes devoid of substance, which should be here the realm of freedom of the person. As it seems, one could indicate here more paradoxes of explaining freedom in terms of its “positive-negative” aspects.
2. I hold the view that the Tribunal does not reconstruct the full sense of the freedom arising from Article 31 of the Constitution. The said “bilateral character” of freedom does not suffice to describe the entirety of freedom in that provision. It does not reach the core of freedom. The Tribunal’s “positive-negative” rendition of freedom focuses only on the lack of imperative for the individual (Article 31(2)), but overlooks the realm of prohibitions against him/her (Article 31(3)). There is a direct transition between freedom in a negative sense and freedom in a positive sense (I elaborate on that below).
The Tribunal’s notion of freedom, above all, lacks reference to Article 31(3) of the Constitution, which includes the category of exercising freedom, and where the category would be an element of that freedom. According to the argumentation of the Constitutional Tribunal, limitation clauses arising from Article 31(3) of the Constitution constitute external, additional aspect when juxtaposed with the aspects of freedom that may be distinguished. In accordance with the Tribunal, only an unambiguous statutory regulation may impose restrictions within the scope of undertaking certain actions that fall within the scope of a particular freedom. In my opinion, “the exercise of freedom” arising from Article 31(3) falls within the very essence of freedom and is indispensable for the explanation thereof. I believe that premisses mentioned in Article 31(3) of the Constitution constitute an integral element of the freedom of the person. Article 31 should not be read in the way that we deal with a situation in which “there is freedom” and a situation where “the exercise of freedom” takes place. In the light of the said provision, this is different. Freedom itself comprises the exercise of freedom.
3. The notion of freedom provided for in the Constitution is richer than the “positive-negative” rendition of freedom presented by the Constitutional Tribunal. Freedom in the Constitution comprises the scope of liberty of the person and the possibility of making use of the scope. It constitutes a product of the freedom of the person and possibilities (skills, powers) to exercise it. Therefore, in my view, freedom comprises liberty i.e. the possibility of shaping our conduct and life (Article 31(2)) and a capacity or ability in that respect to exercise the said liberty (Article 31(3)). Hence, grounds arising from para 3 remain the integral elements of the freedom of the person. The lack of imperatives as to freedom (as stated by para 2) does not include the lack of prohibitions with regard to the exercise of freedom (as stated in para 3). Only those two resultants together – i.e. the lack of imperatives as to the conduct of the individual, which is stipulated in Article 31(2), as well as the possibility of introducing prohibitions (restrictions) arising from Article 31(3) – specify the realm of our liberty, which I construe as freedom in the light of the Constitution. Its content may therefore be expressed in such a way that nothing is imposed on us, but certain things may not be done. “Do not impose anything on persons, and introduce prohibitions only in certain situations” – this seems to be the essence of constitutional freedom. What characterises such an interpretation of the provisions of the Constitution on freedom is that it comprises entire Article 31, and thus also includes para 3 as regards the understanding of freedom. “Restrictions within the scope of the exercise of freedom” (para 3), are not something external with regard to freedoms that are mentioned. We know perfectly well that vital disputes over freedom which are taking place before the Constitutional Tribunal, and before other constitutional courts, concern the realm of prohibitions and restrictions (e.g. the case of a prohibition against ritual slaughter or cases concerning a prohibition against abortion). Thus, Article 31 of the Constitution in entirety means that the person has a realm of freedom and that s/he may make use thereof.
I believe that an advantage of such rendition of freedom is the fact that the rendition is “operational” i.e. it may be used by a judge for the purpose of determining different issues concerning freedom. Indeed, it is almost obvious that the field of the freedom of the individual (Article 31(2)) and the possibility of exercising it (Article 31(3)) must be correlated. When determining the issue of delineating the limits of surveillance of citizens, the Constitutional Tribunal should specify a point of reference by means of which it assesses the individual’s freedom. In my view, the said point of reference is applied when we adjust the realm of the individual’s liberty, which must be as broad as possible, (which arises from Article 31(2)) to the realm of the individual’s exercise of his/her freedom (which follows from Article 31(3)). In this rendition, “security or public order”, “health” “public morals” or “the freedoms and rights of other persons” fall within the scope of the individual’s freedom. They are meant for “weighing” restrictions and prohibitions related to freedom from the point of view of the individual and his/her freedom. The Tribunal inappropriately addresses the issue of the tool for weighing freedom and the restriction thereof. It specifies a broader dimension of obligations of the organs of the state to guarantee rights and freedoms. The Tribunal stresses the obligation to set up actual conditions by the state in which citizens are guaranteed freedoms and rights that they may freely exercise. A prerequisite of guaranteeing rights and freedoms is the sense of security in the state and the lack of threats to citizens [ibid.]. Undeniably, it is impossible to negate those assertions. By contrast, it is not clear how they reflect the Tribunal’s proposal that an approach should be worked out as to the assessment of proportionality of provisions under examinations which is to be characterised by “differentiation” [ibid.].
4. When referring to the two “aspects of freedom” that arise from the Constitution, the Tribunal uses terminology that pertains to freedom in a way which moves away from classic terminology. The issue of terminology is here of course of secondary importance. I do not wish to focus my attention on it, although terms, used in one way or another, often conceal the essence of the case. However, I would like to point out that the Constitutional Tribunal, despite the classic doctrine, describes the realm of the person’s liberty as positive freedom. The said freedom from the years of J.S. Mill or I. Berlin (cf. Dwie koncepcje wolności, Warszawa 1991, p. 114) has been named “negative freedom” (and not positive one). I would like to stress once again that the point here is not about terminology.
When we talk about “negative freedom” and “positive freedom”, then we talk about different types of freedom. This distinction does not comprise the Tribunal’s “aspects” of freedom. The above-mentioned freedom (negative freedom) differs from positive freedom. Freedom in a positive sense answers a different question than negative freedom. It amounts to the extent of influence exercised by the state and the organs of the state on the individual and his/her behaviour (who governs me). This usually means indication by state authorities as to how the individual should act or behave according to those authorities. Indeed, authorities often want to teach people what freedom is. It seems that J. S. Mill was right, stating that at times democracy may cause worse assault to the individual’s freedom than a totalitarian regime. The distinction between these two ideas of freedom pertains to the essence of talking about freedom.
5. The Tribunal’s findings with regard to the understanding of the constitutional freedom of the person are of fundamental significance. On the one hand, most cases considered by the Tribunal concern issued related to freedom and the understanding thereof. Alternatively, they may be rephrased as disputes over freedom or, more strictly, as disputes over the scope of the exercise of freedom. On the other hand, freedom appears so obvious to us that we assign different definitions and content thereto. Thus, the doubt as to the understanding of freedom in Article 31 of the Constitution had to be signalled.
Dissenting Opinion
of Judge Wojciech Hermeliński
to the judgment of the Constitutional Tribunal
of 30 July 2014, ref. no. K 23/11
On the basis of Article 68(3) of the Constitutional Tribunal Act of 1 August 1997, (Journal of Laws ‑ Dz. U. No. 102, item 643, as amended; hereinafter: the Constitutional Tribunal Act), I submit my dissenting opinion to part I, points 3, 5 and 6 of the judgment of the Constitutional Tribunal of 30 July 2014, ref. no. K 23/11, as well as to the Tribunal’s adjudication that the review proceedings should be discontinued.
I hold the view that the Constitutional Tribunal, within the scope I have indicated here, carried out an insufficiently thorough review of the constitutionality of the challenged regulations, and also delineated the scope of the allegation in a way that lacked justification.
In my view, the following ruling should have been issued:
Point 3 in part I of the operative part of the judgment, insofar as it refers to the Act of 24 May 2002 on the Internal Security Agency and the Foreign Intelligence Agency (Journal of Laws ‑ Dz. U. of 2010 No. 29, item 154, as amended; hereinafter: the Act on the Internal Security Agency) should read as follows:
a) Article 27(1) in conjunction with Article 5(1)(2)(a) (insofar as it comprises the wording: “and other offences against national security”) of the Act on the Internal Security Agency is inconsistent 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 (Journal of Laws – Dz. U. of 1993 No. 61, item 284, as amended; hereinafter: the Convention), whereas
b) Article 27(1) in conjunction with Article 5(1)(2)(c) of the Act on the Internal Security Agency, construed as one that refers to offences indicated in Articles 228-230a of the Act of 6 June 1997 – the Penal Code (Journal of Laws ‑ Dz. U. No. 88, item 553, as amended; hereinafter: the Penal Code), is consistent with the indicated higher-level norms for the review.
While questioning the ruling included in part I point 3(a) of the operative part of the judgment, I have no reservations with regard to the conclusion drawn in part I point 3(b), provided that it is complemented in the above-mentioned way.
Within the scope referring to the Act of 9 June 2006 on the Military Counter-Intelligence Service and the Military Intelligence Service (Journal of Laws ‑ Dz. U. of 2014, item 253, as amended; hereinafter: the Act on the Military Counter-Intelligence Service), point 3 in part I of the operative part of the judgment should read as follows:
a) Article 31(1) in conjunction with Article 5(1)(1)(a) of the Act on the Military Counter-Intelligence Service (insofar as it comprises the wording “as well as other statutes and international agreements”);
b) Article 31(1) in conjunction with Article 5(1)(1)(g) of the Act on the Military Counter-Intelligence Service (insofar as it comprises the wording “as well as offences other than those enumerated in points (a)-(f), which undermine the defence potential of the following: the state, the Armed Forces of the Republic of Poland, the organisational units of the Ministry of Defence, and foreign states that guarantee reciprocity”); as well as
c) Article 31(1) in conjunction with Article 5(1)(9) of the Act on the Military Counter-Intelligence Service
– are inconsistent with Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution as well as Article 8 of the Convention. Consequently, I have reservations as to the ruling about the first of the enumerated norms, included in part I point 3(c) of the judgment, and I also question the Tribunal’s decision to discontinue the review proceedings with regard to the review of the other norms.
Point 5 in part I of the operative part of the judgment should read as follows:
a) Article 20c(1) of the Act of 6 April 1990 on the Police (Journal of Laws ‑ Dz. U. of 2011 No. 287, item 1687, as amended; hereinafter: the Act on the Police),
b) Article 10b(1) of the Act of 12 October 1990 on the Border Guard (Journal of Laws ‑ Dz. U. of 2011 No. 116, item 675, as amended; hereinafter: the Act on the Border Guard),
c) Article 36b(1)(1) of the Act of 28 September 1991 on Fiscal Supervision),
d) Article 30(1) of the Act of 24 August 2001 on the Military Police and military security forces (Journal of Laws ‑ Dz. U. of 2013 item 568, as amended; hereinafter: the Act on the Military Police),
e) Article 28(1)(1) of the Act on the Internal Security Agency,
f) Article 32(1)(1) of the Act on the Military Counter-Intelligence Service,
g) Article 18(1)(1) of the Act of 9 June 2006 on the Central Anti-Corruption Bureau (Journal of Laws ‑ Dz. U. of 2012 item 621, as amended; hereinafter: the Central Anti-Corruption Bureau Act),
h) Article 75d(1) of the Act of 27 August 2009 on the Customs Service (Journal of Laws ‑ Dz. U. of 2013, item 1404, as amended; hereinafter: the Act on the Customs Service)
due to the fact that:
- they provide for access to telecommunications data for a different purpose than detecting and prosecuting the most serious offences that are strictly specified by statute,
- without an obligation to first use other, less intrusive, methods of collecting information or an obligation to indicate high probability that they will prove ineffective,
- do not provide for independent supervision over granting access to telecommunications data referred to in Article 180c and Article 180d of the Telecommunications Act of 16 July 2004 (Journal of Laws ‑ Dz. U. of 2014 item 243, as amended; hereinafter: the Telecommunications Act)
are inconsistent with Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution and Article 8 of the Convention. Thus, I agree with the line of adjudication presented by a majority of the judges of the Constitutional Tribunal. However, I hold the view that the operative part of the judgment does not dispel all the doubts raised by the applicants and that it does not outline to the legislator what indispensable changes should be introduced.
Point 6 in part I of the operative part of the judgment should read as follows:
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 Fiscal Supervision,
d) Article 31 of the Act on the Military Police,
e) Article 27 of the Act on the Internal Security Agency,
f) Article 31 of the Act on the Military Counter-Intelligence Service,
g) Article 17 of the Central Anti-Corruption Bureau Act
insofar as they do not provide for:
- a prohibition against obtaining – in the course of operational surveillance – material protected by the requirement of professional confidentiality that binds defence counsels and journalists; as well as
- a mechanism for the immediate, recorded and witnessed destruction of that kind of material obtained in breach of the above prohibition;
are inconsistent with Article 42(2) and Article 51(2) in conjunction with Article 31(3) of the Constitution, and with Article 6(3)(b) and Article 6(3)(c) as well as Article 10(1) of the Convention. Also in this respect, I accept the evaluation arrived at by a majority of the judges adjudicating in the present case, but I believe that the evaluation should cover the entirety of the allegations raised by the applicants.
I have submitted my dissenting opinion for the following reasons:
1. The scope ratione materiae of operational surveillance conducted by the Internal Security Agency (offences that are against “national security” and “offences of corruption” – part I point 3(a) and (b) of the operative part of the judgment, and part III point 8.7 and 8.8. of the statement of reasons for the judgment).
1.1. Within the meaning of Article 27(1) in conjunction with Article 5(1)(2)(a) of the Act on the Internal Security Agency, the said state security service is authorised to carry out operational surveillance for the purpose of investigating, preventing and detecting unspecified (other than those directly mentioned by statute) offences against “national security”.
Unlike a majority of the judges adjudicating in that case, I hold the view that, due to the lack of precision, the said provision not only does not meet the basic standards of good legislation (cf. Article 2 of the Constitution), but also poses a real risk of unjustified interference in the rights and freedoms of citizens (cf. Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution as well as Article 8(1) of the Convention; see also – as regards the possibility of joined application of formal and substantive higher-level norms for the review – the judgment of 20 April 2004, ref. no. K 45/02, OTK ZU No. 4/A/2004, item 30).
The said provision permits the Internal Security Agency to carry out operational surveillance with relation to all offences (also those that have not been specified in criminal-law codes), as long as the state security service deems that they are “against national security”. The rules for qualifying a given offence are in no way standardised (e.g. by means of the criterion of realms in which national security could be breached), and thus they are strictly evaluative in character. In addition, it is not clear whether “offences against national security” referred to in Article 5(1)(2)(a) of the Act on the Internal Security Agency may at the same time be against “the essential economic interests of the state” (cf. Article 5(1)(2)(b) of the Act on the Internal Security Agency as well as part I point 2 of the operative part of the judgment).
Offences that “are against national security” do not allude to either colloquial or statutory terms for particular prohibited acts; nor do they match the categorisation of offences adopted in the Penal Code. Similar wording – “offences against the internal or external security of the Republic of Poland” – only occurs in Article 112(1) of the Penal Code, in the context of determining the scope ratione personae of the Penal Code. However, the said provision requires that it should be complemented by provisions which specify the characteristics of particular prohibited acts (Article 112(1) of the Penal Code does not give sufficient grounds for formulating an indictment). Moreover, the Penal Code singles out offences against “general security” and “the security of transportation” – chapters XX and XXI, which inter alia comprise the cases of causing fire, a building collapse or a traffic accident (which might only rarely undermine “national security”).
What does not persuade me either is the attempt at interpreting Article 5(1)(2)(a) of the Act on the Internal Security Agency, presented in part III point 8.7.3 of the statement of reasons for the judgment, which relies on the acceptance of the term ‘national security’ by the Constitutional Tribunal in the judgment of 27 June 2008, ref. no. K 51/07 (OTK ZU No. 5/A/2008, item 87). Indeed, the said view was expressed in the context of the scope ratione materiae of the report by the Head of the Verification Committee, inter alia for the President and the Prime Minister, with regard to the functioning of military intelligence and counter-intelligence services. It did not directly concern a relation between the state and citizens (and in particular – the right to privacy in the context of the competence of various state security services to carry out operational surveillance), but relations between different state authorities (the scope of the obligation to report; the higher-level norms for the review within that scope comprised only Articles 2 and 7 of the Constitution). The impact of the report concerning the verification of the Military Information Services on the subjective rights of persons mentioned therein was assessed by the Constitutional Tribunal elsewhere in the said judgment, yet not in terms of the sufficient precision of the term ‘national security’, but as regards sufficient procedural guarantees of the accuracy of the report on the verification of the Military Information Services.
I definitely disagree with the assertion made by the Constitutional Tribunal that the use of the imprecise phrase ‘offences against national security’ is necessary due to “the factual and axiological richness of the subject of the regulation” and that a proposal to replace it with a closed catalogue of offences “would border with the limits of appropriate legislation” (part III, point 8.7.7.6 of the statement of reasons for the judgment). Such a solution is indeed applied in the case of the interception of conversations which is ordered with relation to criminal proceedings that are pending, as provided for in Article 237(3) of the Act of 6 June 1997 – the Code of Criminal Procedure (Journal of Laws ‑ Dz. U. No. 89, item 555, as amended; hereinafter: the Code of Criminal Procedure), i.e. in the context of a very similar legal institution. The fact that the said solution has no equivalent in provisions on operational surveillance, which is carried out with much less supervision from a court than the interception of conversations which is ordered with relation to criminal proceedings that are pending (which is manifested e.g. by the extension of a time-limit for the court’s approval of a decision on operational surveillance issued by the Head of the Internal Security Agency from 3 to 5 days – cf. Article 27(3), second sentence, of the Act on the Internal Security Agency), seems to contradict the assumption that the legislator acts in a reasonable way. Indeed, it is obvious that the more limited procedural guarantees are (and in particular – the less strict court supervision applies), the more precise rules there should be for interfering in the rights and freedoms of citizens.
Additionally, one should note that the justification for the judgment of the Constitutional Tribunal within that scope is internally contradictory. When addressing the issue of the lack of a closed catalogue of offences that justify operational surveillance by the Military Counter-Intelligence Service and the Military Intelligence Service, the Constitutional Tribunal stated that: “the introduction of a static reference to particular passages, in a relevant criminal-law statute, which specify the types of offences would undoubtedly enhance the level of protection of the individual against a potential risk of arbitrariness on the part of the organs of public authority”. It implicitly deemed not only that this was possible, but also that it would constitute the implementation of the highest possible constitutional standard (cf. e.g. part III point 8.9.2 in fine of the statement of reasons for the judgment; likewise: part III point 8.8.2 of the statement of reasons for the judgment; however, it should be acknowledged that the Constitutional Tribunal does not consider this to be a sufficient reason for overturning the presumption of the constitutionality of the challenged provisions).
An important consequence of the insufficient specificity of the challenged regulation is that the verification of the validity of an application for carrying out operational surveillance done by the Head of the Internal Security Agency, the Public Prosecutor-General as well as the court (NB often after the surveillance has already been carried out – cf. Article 27(1)-(3) of the Act on the Internal Security Agency) is illusory, despite the fact that such an application in every case must be filed with justification (cf. Article 27(1a) of the Act on the Internal Security Agency). This makes it possible to take the decision merely on the basis of confidence in the Internal Security Agency, given the assumption that the said state security service is responsible for guaranteeing national security, and in principle acts in a professional way and that every application filed by the said state security service for the purpose of carrying out operational surveillance is justified. Hence, the wording of the challenged provision leads one to the conclusion that (for the lack of objective criteria that would justify refusal to consider applications for operational surveillance) such applications should be accepted, whereas the protection of the rights and freedoms of citizens would require a reaction that would be quite the opposite (refusal in principle, and permission for operational surveillance by way of an exception). As a result, there are no guarantees that the activities of the Internal Security Agency will be predictable; on the basis of the wording of the challenged provision, one may not unambiguously answer the question in which specific cases (with regard to what types of offences or specific acts) the carrying out of operational surveillance is admissible, and in which it is not.
By contrast, what is obvious is that operational surveillance constitutes serious interference in the privacy of affected persons and may lead to the disclosure of essential facts from the private or professional life of a given person. This makes it possible, in a secret way and outside the scope of court proceedings, to obtain information that comes from traditional correspondence, as well as – which is at present more important – the content of telephone conversations and other information exchanged by telecommunications networks (e.g. electronic mail – cf. Article 27(6) of the Act on the Internal Security Agency). In that case, the premisses of the application should be specified in a way that is as precise as possible – by reference to specific criminal-law provisions that set out the characteristics of offences which are to be detected or prosecuted on the basis thereof (cf. the above-mentioned interception of conversations which is ordered with relation to criminal proceedings that are pending, which is regulated in Article 237(3) of the Code of Criminal Procedure). Only such regulation would fulfil – in my opinion – the constitutional requirement that certain restrictions of rights and freedoms (here: the right to privacy and the right to informational self-determination) are to be regulated (lege non distiguente: in their entirety) by statute.
In my opinion, the current way of specifying the competence of the Internal Security Agency is not sufficient; it amounts to the obligation that operational surveillance may be carried out only for the purpose of investigating, preventing and detecting “offences” (in the case under analysis – that are “against national security”). Indeed, the standard of a democratic state ruled by law does not permit that such a broad scope of operational surveillance may be accepted, which in practice comprises not only the perpetrators of offences or the witnesses thereof, but also third parties. Although in the hierarchy of constitutional values, national security (also the economic security of the state) is more important than the privacy of particular citizens, this may not lead to the ubiquitous, unsupervised surveillance of citizens, due to hypothetical and unspecified threats. By contrast, operational surveillance may and should be applied, but only with relation to the suspicions of the most serious, and precisely specified, offences and under the condition of preserving relevant procedural guarantees (cf. below).
1.2. At the same time, I would be willing to state that the minimal standard in that respect is met by Article 27(1) in conjunction with Article 5(1)(2)(c) of the Act on the Internal Security Agency (cf. part I point 3(b) of the operative part of the judgment and part III point 8.8 of the statement of reasons thereof), provided that “the offences of corruption” referred to in this provision would be understood as acts penalised under Article 228, Article 229, Article 230 and Article 230a of the Penal Code.
The said provision does correlate the admissibility of carrying out operational surveillance by the Internal Security Agency with the protection of “national security” (which is linked to the tasks of the said Agency in Article 1 and – challenged by me – Article 27(1) in conjunction with Article 5(1)(2)(a) of the Act on the Internal Security Agency), but only with reference to explicitly specified types of “offences of corruption”. Thus, in this case, the role of that clause is – as it has been aptly noted by the Constitutional Tribunal (cf. part III point 8.8.2 of the statement of reasons for the judgment) – to narrow down, and not to expand, the scope of competence in such a way that the said state security service could carry out operational surveillance only with relation to the most serious “offences of corruption” which are the most detrimental to society.
Consequently, Article 27(1) in conjunction with Article 5(1)(2)(c) of the Act on the Internal Security Agency is characterised by a greater degree of precision than Article 27(1) in conjunction with Article 5(1)(2)(a) and Article 5(1)(2)(b) of the Act, which allows to deem that it is consistent with the indicated higher-level norms for the review. In my opinion, the sine qua non of such a ruling should be the supplementation of that regulation by explicit reference to Article 228, Article 229, Article 230 and Article 230a of the Penal Code, so that there would be no doubt about the meaning of “the offences of corruption”, mentioned in that regulation. This is also indirectly noticed by the Constitutional Tribunal, which states that “resorting to terms used in a relevant code would definitely enhance the protection of individuals” (part III point 8.8 of the statement of reasons for the judgment). However, this has not been reflected in the operative part of the judgment.
1.3. Finally, it should be indicated that points 3(a) and 3(b) of the judgment of the Constitutional Tribunal, challenged by me, are contrary to the hitherto standard of the protection of the right to privacy, presented in the jurisprudence of the Constitutional Tribunal and the European Court of Human Rights (hereinafter: the ECHR).
Above all, one should mention here the so-called signalling decision of 15 November 2010, ref. no. S 4/10 (OTK ZU No. 9/A/2010, item 111), issued with relation to the decision of the Constitutional Tribunal of 5 October 2010, ref. no. P 79/08 (OTK ZU No. 8/A/2010, item 88). The Constitutional Tribunal signalled to the Sejm that there was a need to amend Article 5(1)(2)(b) of the Act on the Internal Security Agency, due to the use of the imprecise phrase ‘the essential economic interests of the state’, included in the said provision. In the statement of reasons for the decision, it was stated inter alia that: “the Circuit Court in Warsaw, when ordering operational surveillance, should indicate a particular person and the type of an offence specified in a relevant criminal-law statute with relation to which operational surveillance is to be carried out. However, in the case where operational surveillance is ordered by the court, within the scope of offences specified in Article 5(1)(2)(b) of the Act on the Internal Security Agency, i.e. within the scope of offences ‘against the essential economic interests of the state’, this is not possible; the phrase ‘offences against the essential economic interests of the state’ makes it impossible to identify the types of offences specified by a relevant criminal-law statute”. In the said context, the Constitutional Tribunal notes that the legislator has identified the types of offences specified by a relevant criminal-law statute with relation to which operational surveillance may be ordered for the police to carry out (cf. Article 19(1) of the Act on the Police), thus implicitly suggesting the direction of a desirable amendment to Article 5(1)(2)(b) of the Act on the Internal Security Agency (in my opinion, this should be even more far-reaching, i.e. it should indicate specific offences, and not just their “types” or “kinds”).
However, the above suggestion proved ineffective, and the said signalling decision is yet to be implemented. I hold the view that the argumentation presented there is still relevant and should be adequately implemented, also with regard to the term ‘offences against national security’, which lacks sufficient specificity (cf. Article 5(1)(2)(a) of the Act on the Internal Security Agency). Indeed, the legislator had enough time to introduce relevant changes to the Act on the Internal Security Agency (the Senate even proposed an amending bill on 9 July 2012 – cf. the Sejm Paper No. 633/7th term of the Sejm; however, the bill received negative evaluation from the Bureau of Research of the Chancellery of the Sejm, and “got stuck” at the stage of first reading). Due to the lack of action on the part of the legislator, the Tribunal had no choice but to rule Article 27(1) in conjunction with Article 5(1)(2)(a) of the Act on the Internal Security Agency to be unconstitutional. Indeed, I see no grounds for departing from the view presented in that decision – nor were they revealed in the statement of reasons for the judgment in the present case (cf. in particular part III, point 5.1.3.1 and point 8.6.3 of the statement of reasons, where it explicitly stated that findings determined in the so-called signalling decision issued in the case S 4/10 remain relevant in the present case).
By contrast, when it comes to the jurisprudence of the ECHR, one should above all mention the standards of the protection of the right to privacy in the course of operational and investigative activities that were summed up in the ruling of 29 June 2006 in the case of Weber and Saravia v. Germany (application no. 54934/00). The ECHR judgment mentions minimum safeguards that should be set out in a statute for the application of secret measures of surveillance:
- “the nature of the offences which may give rise to an interception order;
- a definition of the categories of people liable to have their telephones tapped;
- a limit on the duration of telephone tapping;
- the procedure to be followed for examining, using and storing the data obtained;
- the precautions to be taken when communicating the data to other parties;
- and the circumstances in which recordings may or must be erased or the tapes destroyed”
(para 95 of the decision; cf. also the ECHR judgments of: 24 April 1990 in the case of Huvig v. France, application no. 11105/84, para 34; 30 July 1998 in the case of Valenzuela Contreras v. Spain, application no. 27671/95, para 46; 16 February 2000 in the case of Amann v. Switzerland, application no. 27798/95, para 76; 18 February 2003 in the case of Prado Bugallo v. Spain, application no. 58496/00, para 30). The said guidelines were operationalised by the ECHR inter alia in the judgment of 10 February 2009 in the case of Iordachi and Others v. Moldova (application no. 25198/02), where it was deemed that the interception of conversations and the surveillance of correspondence were inadmissible in proceedings pertaining to an unspecified category of serious, very serious and exceptionally serious offences, which potentially comprises more than a half of offences enumerated in the Moldovan Criminal Code indicated therein (cf. also the ECHR judgment of 28 June 2007 in the case of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, the application no. 62540/00, para 76). The lack of full regulation of competence granted to secret services in a statute, which results in their excessive freedom of operation within the scope of secret surveillance, was also criticised in the ECHR judgment of 2 August 1984 in the case of Malone v. Great Britain (the application no. 8691/79).
2. The scope ratione materiae of operational surveillance carried out by the Military Counter-Intelligence Service and the Military Intelligence Service (offences specified in “other statutes and international agreements”, offences “which undermine the defence potential of the state”, operational surveillance for the purpose of carrying out “activities provided for the Military Counter-Intelligence Service in other statutes, as well as international agreements” – part I point 3(c) of the operative part of the judgment, the adjudication about the discontinuation of the review proceedings as well as part III points 8.9, 13.2 and 13.3 of the statement of reasons for the judgment).
2.1. An analysis of the challenged provisions on operational surveillance carried out by the Military Counter-Intelligence Service and the Military Intelligence Service should also be commenced by considering the formal allegations.
In my view, the Constitutional Tribunal should not have discontinued the review proceedings as regards the review of two regulations challenged by the Public Prosecutor-General on 7 March 2012: Article 31(1) in conjunction with Article 5(1)(1)(g) (within the scope indicated in the application) as well as Article 31(1) in conjunction with Article 5(1)(9) of the Act on the Military Counter-Intelligence Service (cf. part III, points 13.2 and 13.3 of the statement of reasons).
With regard to the first of those regulations, a ground for not considering the application of the Public Prosecutor-General was the fact that it did not mention the evidence of their unconstitutionality, and in particular the lack of an attempt “to determine what offences the [above-mentioned] challenged provision might potentially refer to” as well as the lack of justification as to the nature of the ensuing disproportionate restrictions of constitutional rights. As indicated by the Constitutional Tribunal, it was impossible to determine on the basis of the said application whether “whether the reason for the unconstitutionality is an excessively broad catalogue of offences with regard to which one may carry out (…) operational surveillance (…), or whether it is the uselessness of operational surveillance for the investigation, detection, and possibly prevention of some of the offences” (part III, point 13.2.2 in fine of the statement of reasons). By contrast, one should point out that the basic reservation put forward by the Public Prosecutor-General with regard to the said provision was its blanket character and lack of specificity, which makes it impossible to determine regulations which – on the basis of the said provision – are to delineate the scope of powers vested in the Military Counter-Intelligence Service and the Military Intelligence Service. Thus, one may not expect the Prosecutor to assess the proportionality of the challenged provision, since its scope ratione materiae is unclear (hence, it is impossible to reconstruct the “subject” of the assessment). What is more, in my view, the degree of detail in the justification for the said allegation does not differ from that in the justification for other allegations which the Constitutional Tribunal accepted for substantive examination.
Similar reasons were mentioned in the judgment for the discontinuation of the review proceedings as regards the examination of Article 31(1) in conjunction with Article 5(1)(9) of the Act on the Military Counter-Intelligence Service, although in that context the Tribunal on its own determined that apart from the challenged statute there were no domestic and international regulations which would specify the tasks of the Military Counter-Intelligence Service and the Military Intelligence Service with regard to which reservations raised by the Public Prosecutor-General had a strictly “hypothetical” character. In my opinion, the said stance is excessively strict for analogical reasons as those indicated above, and also it overlooks the special character of review proceedings before the Constitutional Tribunal instituted by the Public Prosecutor-General. Indeed, it should be pointed out that neither in the Constitution nor in the Constitutional Tribunal Act applications filed by the Public Prosecutor-General are specific in character. A constitutional review undertaken as a result of such an application constitutes an abstract review, and thus it is independent of any specific, actual circumstances in which the challenged provision is applied. The non-occurrence of such specific, actual circumstances (referred to as “hypothetical” by the Constitutional Tribunal) may not constitute a ground for refusal to consider an application filed by the Public Prosecutor-General. The actual lack of “referral provisions” for Article 5(1)(9) of the Act on the Military Counter-Intelligence Service means only that the signalised negative effects of the indicated regulation for the rights and freedoms of citizens are deferred in time and may occur as a result of the change in the legal system (the adoption of unspecified new statutes or international agreements) – which is one of the most important allegations set out in the application.
2.2. Article 31(1), in conjunction with Article 5(1)(1)(a) and (g), of the Act on the Military Counter-Intelligence Service authorises the Military Counter-Intelligence Service and the Military Intelligence Service to carry out operational surveillance with relation to offences against peace, offences against humanity and war offences specified in chapter XVI of the Penal Code, as well as in “other statutes and international agreements” and “offences other” than those enumerated in Article 5(1)(1)(a)-(f) “which undermine the defence potential of the following: the state, the Armed Forces of the Republic of Poland, the organisational units of the Ministry of Defence, and foreign states that guarantee reciprocity”. By contrast, Article 31(1) in conjunction with Article 5(1)(9) of the Act on the Military Counter Intelligence makes it possible to “undertake actions provided for the Military Counter-Intelligence in other statutes, as well as international agreements which bind the Republic of Poland”.
In my opinion, the above regulations are inconsistent with Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution as well as Article 8 of the Convention.
The first of the regulations does meet the requirement that the scope ratione materiae of the admissible operational surveillance should be formulated at the statutory level in a specific way, i.e. it should delineate a closed catalogue of prohibited acts with regard to which the Military Counter-Intelligence Service and the Military Intelligence Service may carry out that surveillance. The expression “as well as other statutes and international agreements”, included in Article 5(1)(1)(a) of the Act on the Military Counter-Intelligence Service, makes reference to an unspecified category of offences penalised by unspecified statutes and international agreements. The scope ratione personae of those offences is limited to the indication of an occupational profile of offenders (the Military Counter-Intelligence Service and the Military Intelligence Service may act only for the purpose of detecting and prosecuting offences committed by soldiers or military administration staff), which does not, at the same time, rule out infringements of the rights and freedoms of third parties. The scope ratione materiae alludes to the conceptual framework used in the Penal Code, and comprises safeguarded interests (peace, humanity) or the type of offences (war offences). Although those categories are universally used in the legal register, they may prove difficult to be unambiguously rendered in other statutes or international agreements. Considerable freedom assigned to the Military Counter-Intelligence Service and the Military Intelligence Service in practice eliminates any objective supervision over the application of the challenged regulation (cf. Article 31(1)-(3) of the Act on the Military Counter-Intelligence Service). Additionally, it should also be noted that it does not safeguard citizens against the extension of the scope of competence granted to that state security service “through the back door” – by the creation of new regulations governing competence outside the Act on the Military Counter-Intelligence Service. This may also occur on the basis of international agreements which have been ratified in accordance with an ordinary procedure (without prior consent granted by statute). The Constitutional Tribunal appears to be aware of the above issues, for it deems in the context of that regulation that “the introduction of a static reference to particular passages, in a relevant criminal-law statute, which specify the types of offences would undoubtedly enhance the level of protection of the individual against a potential risk of arbitrariness on the part of the organs of public authority” (part III, point 8.9.2 in fine of the statement of reasons for the judgment). This apt statement had no effect on the assessment of the constitutionality of the challenged provision.
Another challenged regulation included in Article 31(1) in conjunction with Article 5(1)(1)(g) of the Act on the Military Counter-Intelligence Service is affected by the same errors as the provisions on the Internal Security Agency which have been analysed above. Without repeating the entirety of the aforementioned arguments, it suffices to mention that offences that are not specified in a statute, and “which undermine the defence potential of the following: the state, the Armed Forces of the Republic of Poland, the organisational units of the Ministry of Defence, and foreign states that guarantee reciprocity” may not be enough for the Military Counter-Intelligence Service and the Military Intelligence Service to carry out operational surveillance, for they do not unambiguously determine the scope of the surveillance permitted by law. The notion of ‘undermining the defence potential of the state’ is not a legal term and it is hard to determine what actual circumstances may make up that notion, especially that what is meant here is also the defence potential of states “that guarantee reciprocity”. The assessment of that regulation is not affected by the fact that the scope of activity assigned to the Military Counter-Intelligence Service and the Military Intelligence Service is limited in terms of the scope ratione personae and primarily includes soldiers and the employees of military administration. Although, due to the character of performed tasks, they need to accept a greater restriction of their privacy than civilians, they should be certain about the scope of those restrictions.
The most peculiar solution has been included in the third challenged regulation (Article 31(1) in conjunction with Article 5(1)(9) of the Act on the Military Counter-Intelligence), from which it follows that the Military Counter-Intelligence Service and the Military Intelligence Service may apply operational surveillance with relation to the carrying out of unspecified “tasks”, only under the condition that they would arise from statutes or international agreements. Such a way of regulating the competence granted to the Military Counter-Intelligence Service seemingly respects only one ground for the admissibility of constitutional rights and freedoms, namely the requirement that they should be specified in statutory provisions. Even that requirement is not met in its entirety – similarly to Article 5(1)(1)(a) of the Act on the Military Counter-Intelligence Service, it does not rule out the possibility of authorising the Military Counter-Intelligence Service and the Military Intelligence Service to carry out operational surveillance on the basis of international agreements ratified in accordance with an ordinary procedure (without consent expressed by statute). However, the challenged regulation does not provide for any – even the most fragmentary – limits of the scope ratione materiae of the “tasks” performed by those state security services which may require the interception of conversations or the surveillance of correspondence. The degree of generality is particularly significant even in the context of the other, also inadmissible, solutions provided for in the Act on the Military Counter-Intelligence Service, which has been mentioned above.
2.3. Also in that case, in my opinion, the Constitutional Tribunal has failed to take account of standards which arise from the previous jurisprudence for the protection of the right to privacy and the freedom of communication (within that scope, what is of appropriate application is a number of remarks on the challenged provisions of the Act on the Internal Security Agency, included in point 1.3 of this dissenting opinion).
3. The scope ratione materiae and the procedure for providing access to telecommunications data (an open-ended catalogue of offences, subsidiarity, the lack of independent supervision – part I, point 5 of the operative part of the judgment as well as part III, points 10.4-10.11 of the statement of reasons of the judgment).
3.1. By word of introduction, in my opinion, the Constitutional Tribunal has in an unauthorised way narrowed down the scope of consideration of applications filed by the Ombudsman (those dated 1 August 2011 and 27 April 2012) as well as the Public Prosecutor-General (one dated 21 June 2012) which concern the use of telecommunications data by various state security services. In my opinion, the judgment of the Constitutional Tribunal within the above scope is affected by two formal defects.
Firstly, the allegations of the applicants have not been examined in their entirety, despite the fact that they have been analysed correctly in the statement of reasons for the judgment (cf. part III, point 10.1).
What clearly follows from the content of all applications that instituted the review proceedings within the scope under analysis is that the applicants raise allegations about the challenged provisions in the following three contexts:
- the lack of selectiveness both at the stage of commencing the process of obtaining telecommunications data (i.e. the possibility of acquiring telecommunications data in the review proceedings concerning unspecified prohibited acts, regardless of the detrimental effects they have on society, including data that are covered by the requirement of professional confidentiality – cf. the Ombudsman’s application of 1 August 2011, pp. 15 and 17-19, as well as almost the entire application of 21 June 2012 submitted by the Public Prosecutor-General; in the Ombudsman’s application, the said allegation does not concern the obtaining of data by the Customs Service), as well as after the completion thereof (failure to delete data that were gathered by some state security services and which prove useless for criminal proceedings – cf. the Ombudsman’s applications: of 1 August 2011, pp. 14, 15 and 23, as well as of 27 April 2012, pp. 13 and 14);
- the lack of subsidiarity (i.e. failure to comply with the principle that the obtaining of telecommunications data should not constitute a basic form of operational activity, but a measure that is regarded as a last resort, after the exhaustion of other possibilities of gathering evidence or when there is no high likelihood that they will prove ineffective – cf. the Ombudsman’s applications: of 1 August 2011, pp. 15 and 22, as well as of 27 April 2012, pp. 6 and 10);
- the lack of independent judicial review of permission granted for the obtaining of telecommunications data (cf. the Ombudsman’s applications: of 1 August 2011, pp. 15 and 22, as well as of 27 April 2012, pp. 6 and 10).
By contrast, in part I points 5, 6, 7 and 8 of the operative part of the judgment, where the above conclusions are discussed, are limited to the assessment of the constitutionality of the challenged provisions only in respect of some of the above allegations, and the rest of them is not covered by the adjudication about the discontinuation of the review proceedings (cf. part III, point 13 of the statement of reasons). The said ruling does not evaluate an open-ended catalogue of offences that justify access to telecommunications data granted to different state security services and the varied degree of socially detrimental effects of the offences, although in the statement of reasons for the judgment there are arguments which confirm reservations put forward by the Public Prosecutor-General (cf. as regards failure to comply with the principle of subsidiarity, for example: part III, points 10.4.4 and 10.11 of the statement of reasons; however, this was not reflected in the operative part of the judgment). Although a large part of the hearing which concerned the applications submitted by the Ombudsman (those dated 1 August 2011 and 27 April 2012) and by the Public Prosecutor-General (one dated 21 June 2012) focused on other aspects of the challenged regulation (the issue of appropriate procedural guarantees), the applicants did not file any motions for restricting the scope of the allegation and the withdrawal of the applications within the other scope.
In my opinion, the said issues should be rendered in part I point 5 of the operative part of the judgment; the mere guarantee of independent supervision over the decision to grant access to telecommunications data (even if only a judicial review – although the Constitutional Tribunal considers this to be excessive – cf. part III point 10.4 in fine of the statement of reasons for the judgment), without the statutory specification of criteria in accordance with which it is to be carried out, would guarantee only the formal, but not actual, protection of citizens’ rights and freedoms (cf. described below).
Secondly, the Constitutional Tribunal in part I point 5 of the operative part of the judgment in an unjustified way limited the scope of the higher-level norms for the review, overlooking Article 2 of the Constitution and Article 8 of the Convention, which were indicated in the applications with relevant justification. The explanation of that decision was limited to reference to the general principle of the efficiency of proceedings (the uselessness of adjudication – cf. part III point 13.4 of the statement of reasons for the judgment). Formulated by the applicants (in particular by the Public Prosecutor-General), the allegations that the challenged provisions infringed the principle of specificity of law (and consequently – the principle of protection of citizens’ trust in the state and its laws) not only were not “covered” by the other higher-level norms for the review considered by a majority of the judges adjudicating in the present case, but – in my view – they also provide many other important arguments for the unconstitutionality of the provisions under examination (cf. below). By contrast, Article 8 of the Convention had a clearly negative impact on the result of the case, as the provision is a source of a clearly higher standard for the protection of the right to privacy and the privacy of communication than the standard adopted in the judgment in the present case (which is even seen in the context of the ECHR judgments that are discussed in the statement of reasons for the Tribunal’s judgment – cf. part III, point 2, see also the ECHR judgments discussed above). I am also surprised by the lack of consistence on the part of the Constitutional Tribunal, when it comes to applying that particular higher-level norm for the review; indeed, it was considered (without any further explanation of that discrepancy) together with Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution in part I point 3 of the operative part of the judgment, which also concerns the scope ratione materiae of competence assigned to the Internal Security Agency, the Military Counter-Intelligence Service and the Military Intelligence Service for the surveillance of citizens (but in the context of operational surveillance measures, and not the analysis of telecommunications data).
3.2. As regards the merits of the case, the following should be noted:
I hold the view that all the allegations raised by the Ombudsman and the Public Prosecutor-General with regard to Article 20c(1) of the Act on the Police, Article 10b(1) of the Act on the Customs Service, Article 36b(1)(1) of the Act on Fiscal Supervision, Article 30(1) on the Act on the Military Police, Article 28(1)(1) of the Act on the Internal Security Agency, Article 32(1)(1) of the Act on the Military Counter-Intelligence Service, Article 18(1)(1) of the Central Anti-Corruption Bureau Act and Article 75d(1) of the Act on the Customs Service should be taken into account. The said provisions breach Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution as well as Article 8 of the Convention at least for the following reasons.
First of all, they lack explicit specification of the scope ratione materiae as regards access of enumerated state security services to telecommunications data. The challenged regulations merely refer to the purpose for which obtained data are needed, but they mention this in a very general way, indicating that this must be justified by:
- “preventing or detecting offences” (as in e.g. Article 20c(1) of the Act on the Police and Article 10b(1) of the Act on the Border Guard), possibly also fiscal offences (cf. Article 36b(1)(1) of the Act on Fiscal Supervision and Article 30(1) of the Act on the Military Police, and in the case of the Customs Service – fiscal offences from chapter 9 of the Act of 10 September 1999 – the Penal Fiscal Code, Journal of Laws ‑ Dz. U. of 2013 item 186, as amended; hereinafter: the Penal Fiscal Code) or also the “infringements” of other provisions (which are categorised as neither offences nor fiscal offences – cf. Article 36b(1)(1) of the Act on Fiscal Supervision);
- carrying out the statutory “tasks” of the state security services (cf. Article 28(1)(1) of the Act on the Internal Security Agency, Article 18(1)(1) of the Central Anti-Corruption Bureau Act as well as Article 32(1)(1) of the Act on the Military Counter-Intelligence Service).
As a result, the challenged provisions – with the exception of sufficiently precise Article 75d(1) of the Act on the Customs Service – permit access to telecommunications data in the course of proceedings carried out in the following cases:
- acts that are penalised by the Penal Code and which are prohibited on the basis of numerous special statutes (the Public Prosecutor-General estimates in this context that at least twice as many offences may justify granting access to communications data than to carry out operational surveillance – cf. the application of 21 June 2012, p. 52);
- acts that constitute offences or fiscal offences, as well as: torts under administrative law (e.g. failure to fulfil the obligation to submit Intrastat declarations and to correct those declarations – cf. Article 2(1)(12) of the Act on Fiscal Supervision) or under civil law (e.g. unlawful profit at the expense of the State Treasury or other state legal entities – cf. Article 18(1)(1) in conjunction with Article 2(1)(3) of the Central Anti-Corruption Bureau Act), and even breaches of professional duties (e.g. the breach of rules for carrying out economic activity by public officials – cf. Article 18(1)(1) in conjunction with Article 2(1)(2) of the Central Anti-Corruption Bureau Act) or generally without any relation to the violation of any provisions (e.g. as part of the audit of property statements of public officials – cf. Article 18(1)(1) in conjunction with Article 2(1)(5) of the Central Anti-Corruption Bureau Act);
- prosecuted ex officio and by a petition (e.g. defamation – cf. Article 212 of the Penal Code or an insult – cf. Article 216 of the Penal Code), and also acts the prosecution of which occurs upon an application submitted by an aggrieved party (e.g. failure to pay maintenance – cf. Article 209 of the Penal Code, theft of property from a close person – cf. Article 278(4) of the Penal Code);
- regardless of the degree to which they have a detrimental effect on society;
- frequently, regardless of the special character of a given force and the tasks thereof (e.g. the Police and the Border Guard may obtain and process telecommunications data also for the purpose of preventing and detecting fiscal offences, although this should be the realm of fiscal supervision);
- not always for detecting, prosecuting and preventing offences, but also for carrying out supervision (the said audit of property statements – cf. Article 18(1)(1) in conjunction with Article 2(1)(5) of the Central Anti-Corruption Bureau Act) or analytical and planning tasks (cf. Article 32(1)(1) in conjunction with Article 5(1)(4) of the Act on the Internal Security Agency, Article 28(1)(1) in conjunction with Article 5(4) of the Act on the Internal Security Agency and Article 18(1)(1) in conjunction with Article 2(1)(6) of the Central Anti-Corruption Bureau Act).
In the light of the above, it appears that a citizen who is more or less used to the practice of state security services will have great difficulty in determining in what situations s/he must be aware of the fact that state security services use his/her telecommunications data.
This would require the knowledge of provisions from various statutes (just as in the case of relatively precise Article 75d(1) of the Customs Service), and apart from that the acceptance of solutions that are glaringly contrary to common sense. On the basis of the literal wording of the challenged provisions, for instance the police could effectively demand access to telephone billing data with relation to the suspicion of:
- defamation (cf. Article 212 of the Penal Code);
- cutting trees in a forest, up to the amount not exceeding one fourth of the minimum wage (i.e. currently PLN 420, cf. Article 120 of the Act of 20 May 1971 – the Code of Misdemeanours, Journal of Laws ‑ Dz. U. of 2013 item 482, as amended);
- the illegal breeding of pedigree greyhounds (cf. Article 52(4) of the Act of 13 October 1995 – the Hunting Act, Journal of Laws ‑ Dz. U. of 2013 item 1226, as amended), or also
- the lack of an editorial note in a newspaper (cf. Article 49 in conjunction with Article 27 of the Act of 26 January 1984 – the Press Act, Journal of Laws ‑ Dz. U. No. 5, item 24, as amended).
The above-mentioned defects of the challenged regulations (apart from the said Article 75d(1) of the Act on the Customs Service) above all constitute – in my view – an infringement of the principle of protection of citizens’ trust in the state and its laws and the principle of specificity of law (Article 2 of the Constitution), which prohibit enacting provisions that are unclear, absurd, or set up “pitfalls” for citizens. In the light of Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution and Article 8 of the Convention, their defectiveness consists above all in the fact that they make it possible to carry out operational surveillance also with regard to minor offences, and thus it may not be clearly determined whether, as a whole, they meet the requirements of proportionality.
Secondly, the challenged provisions lack a proviso that telecommunications data may be disclosed to various state security services only when other measures for obtaining information have proved to be ineffective or there is a high risk that they will prove to be ineffective or useless (the said defect also affects Article 75d(1) of the Act on the Customs Service, which – as the only one – fulfilled the requirement of sufficient precision). In my view, what may not be considered as an equivalent of the subsidiarity clause is the proviso included in the three challenged provisions that some state security services may, for the purpose of performing their tasks, obtain only “indispensable” information (cf. Article 28(1)(1) of the Act on the Internal Security Agency, Article 18(1)(1) of the Central Ant-Corruption Bureau Act and Article 32(1)(1) of the Military Counter-Intelligence Service) – indeed, there are no detailed criteria on the basis of which the said indispensability could be assessed. Such solutions are actually known in the Polish legal system and are binding, for example, within the scope of operational surveillance that is not linked with court proceedings and carried out by the same state security services that are covered by applications within the scope under analysis (cf. Article 19 of the Act on the Police, Article 9e of the Act on the Border Service, Article 36c of the Act on Fiscal Supervision, Article 31 of the Act on the Military Police, Article 27 of the Act on the Internal Security Agency, Article 17 of the Central Anti-Corruption Bureau Act and Article 31 of the Act on the Military Counter-Intelligence Service).
The indicated lack of the subsidiarity of the challenged provisions opens up the possibility of using telecommunications data not only when this is really necessary for the detection or prevention of offences, but also when this is the easiest and most convenient (cf. the judgment of 12 December 2005, ref. no. K 32/04, OTK ZU No. 11/A/2005, item 132). Considering the development of information and communication technologies, the obtaining and processing of such data is becoming less and less complicated and expensive, and also it produces good results within a relatively short period. Thus, there is a risk that checking the so-called telephone billing data or records read from GPS devices installed in a phone or a car will be soon the first step taken in all cases for example for preliminary indication of persons who might have been involved in an offence, even when – without prejudice to the outcome of proceedings – the same purpose may be achieved with traditional investigative methods, without any interference in the privacy of a large number of citizens.
In its current shape, the challenged provisions as a whole do not fulfil the requirement of necessity (indispensability) of restrictions. Moreover, they inappropriately weigh relations between protected values and restricted values, violating the principle of proportionality set out in Article 31(3) of the Constitution. The last-mentioned aspect is particularly striking when telecommunications data are to be used for purposes other than detecting or preventing offences. I hold the view that surveillance activities (in the context of persons with regard to whom there is not the slightest suspicion that they may have committed an offence) or analytical ones never warrant the obtaining and processing of telecommunications data.
Thirdly, the access of the said state security services to telecommunications data concerning citizens is not – in accordance with the challenged provisions ‑ subject to any impartial supervision (whether preceding or following the disclosure of the data). In certain situations, provisions concerning particular state security services provide for a kind of internal supervision in a very limited form, when applications for access to the data are to be approved by the supervisors of functionaries who file the applications (e.g. in the case of police officers – the Head of the Polish Police or the head of the police in a given voivodeship – cf. Article 20c(2) of the Act on the Police), which, however, does not guarantee that the functionaries of a given state security service will properly exercise their right to access telecommunications data (cf. the ECHR judgment of 26 April 2007 in the case of Dumitru Popescu v. Romania, application no. 71525/01, para 71, where the Court held that the requirement of appropriate review of the legality of telephone tapping was not met in the case of a review conducted by a prosecutor, as the prosecutor is not independent of the executive).
In my view, the lack of external supervision also implies the infringement of the principle of proportionality in Article 31(3) of the Constitution. Indeed, it does not provide for diligent verification whether in a given case the use of telecommunications data was really necessary and whether the anticipated benefits of access to information will be significant enough to justify interference with the right of privacy and the freedom of communication, as regards a person whose data were accessed, as well as third parties who contact that person.
In my opinion, when considered separately, each of the above defects of the challenged provisions would suffice to rule that the said provisions are inconsistent with Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution as well as Article 8 of the Convention. When grouped together, they result in a situation where police forces and state security services have a (virtually) unlimited possibility of accessing telecommunications data on citizens. They contain neither substantive nor procedural guarantees that such powers will not be abused without an actual reason or in trivial cases (cf. minimum standards for operational activities carried out with regard to citizens, formulated in the cited judgment in the case K 32/04).
I believe that the broad scope of telecommunications data which are disclosed to various state security services (cf. Article 180c and Article 180d of the Telecommunications Act) and the possibility of using them to gain information on all the aspects of personal lives of citizens justify the need to urgently amend the challenged provisions. It is useful to achieve a comparable standard of the protection of the right to privacy and the freedom of communication as in the context of operational surveillance. With the present level of the development of technologies, the intrusiveness of the said two types of obtaining information on citizens (although telecommunications data – unlike information obtained in the course of operational surveillance – do not disclose the content of messages, but instead on the basis thereof it may be possible to, for example, determine the fact that a given person is staying at a certain location or identify a group of friends with whom s/he stays in touch).
It is the legislator’s obligation to select appropriate solutions within that scope; in my view, various solutions may meet the constitutional standard. They should guarantee that telecommunications data concerning citizens will be granted to various state security services only when this is necessary (i.e. solely in the context of strictly specified and most serious offences), in compliance with the principle of subsidiarity and with external supervision provided by an authority that is independent of the executive branch (ideally – a court).
3.3. It may be mentioned as a side remark that, for the above reasons, the challenged provisions do not meet requirements set out for the obtaining and processing of telecommunications data in the jurisprudence of the ECHR (including, in particular, the judgments of: 2 August 1984 in the case of Malone v. the United Kingdom, application no. 8691/79; 25 September 2001 in the case of P. G. and J. H. v. the United Kingdom, application no. 44787/98; 3 April 2007 r. in the case of Copland v. the United Kingdom, application no. 62617/00; as well as within the scope of the obligation to provide appropriate procedural guarantees, the judgments of: 4 May 2000 in the case of Rotaru v. Romania, application no. 28341/95; and 26 April 2007 in the case of Dumitru Popescu v. Romania, application no. 71525/01) and of the Court of Justice of the EU (cf. in particular the judgment of 8 April 2014 in the joined cases of the High Court (Ireland) and the Verfassungsgerichtshof (Austria) (C‑293/12)).
The said rulings are discussed extensively in part III, points 2 and 3 of the statement of reasons for the judgment in the present case, so undoubtedly the judges of the Constitutional Tribunal adjudicating in this case were familiar with them. I may only express regret that comprehensive and detailed arguments presented in the said jurisprudence were not properly applied in this case, despite the fact that Poland is also obliged to comply with standards arising from EU law and the Convention (its Article 8 was selected for a reason as a higher-level norm for this review).
4. The scope ratione materiae of operational surveillance (information covered by the requirement of professional confidentiality – part I point 6 of the operative part of the judgment and part III point 11 of the statement of reasons for the judgment).
4.1. In my opinion, also with regard to the application of operational surveillance in the context of information protected by the requirement of professional confidentiality, the Constitutional Tribunal erroneously reconstructed the scope of allegation.
First of all, the application of 13 November 2012, submitted by the Public Prosecutor-General, fails to meet certain formal requirements set out in Article 32(1)(4) of the Constitutional Tribunal Act.
In the petitum of his application, the applicant requests the Tribunal to examine the admissibility of obtaining – in the course of operational surveillance – information covered by the requirement of professional confidentiality that binds: advocates, journalists, notaries public, legal advisers, tax advisers and medical practitioners. However, the statement of reasons for the application provides a detailed analysis only of professional confidentiality that binds defence counsels and journalists, and arguments regarding the other types of professional confidentiality are limited to the allegation that operational surveillance that does not exempt information covered by those types of professional confidentiality requirements provides police forces and state security services with an excessively broad scope of discretion” (cf. p. 63 of the application). In addition, it may be noted that also the statement of reasons for the judgment of the Constitutional Tribunal focuses on professional confidentiality that binds defence counsels and journalists, but does not discuss the requirement of confidentiality, for instance, in the context of medical practitioners (cf. part III, point 11.6 of the statement of reasons for the judgment).
A similar situation may be observed as regards the higher-level norms for the review indicated in the application. The Public Prosecutor-General mentions six provisions of the Constitution (not to mention Article 31(3) which is read in conjunction with others) and three provisions of the Convention; however, his arguments are based only on Article 51(2) (pp. 54-55) as well as Article 42(2) in conjunction with Article 31(3) of the Constitution, as well as Article 6(3)(b) and (c) (pp. 71-74) and Article 10(1) of the Convention (pp. 79-84), which mostly corresponds with the subject of the allegation determined above. The content of Article 54(1) of the Constitution – although that provision concerns matters which are similar to those addressed in Article 10(1) of the Conversion – is not at all referred to in the application. As to the other higher-level norms for the review indicated in the petitum of the said application, they are discussed extensively in the statement of reasons for the application (taking account of the jurisprudence of the Tribunal and the ECHR, although not always aptly – cf. e.g. a far-fetched thesis that Article 8 of the Convention implies a requirement for protection against the disclosure of professional confidential information – p. 64 of the application), but the justification of doubts that arise in the light of those provisions is limited to the formulation of allegations, without providing any evidence in support thereof (and applications to institute review proceedings before the Constitutional Tribunal must contain these two elements – cf. Article 32(1)(3) and Article 32(1)(4) of the Constitutional Tribunal Act). Considering the fact that, within that scope, the subject of examination should only comprise the impact of operational surveillance on professional confidentiality that binds defence counsels and journalists, the effective indication of the said provisions would in fact be hardly relevant, as the basic higher-level norms for the review should comprise provisions of the Constitution and the Convention that directly concern those issues (as part of the reconstruction of higher-level norms for the review, the Constitutional Tribunal often applies the principle that reliance on higher-level norms that display a greater degree of generality is useless, if there are constitutional norms that are more detailed in character and are strictly linked with the regulation under assessment – cf. e.g. the judgment of 27 July 2012, ref. no. P 8/12, OTK ZU No. 7/A/2012, item 85).
In my opinion, therefore, the scope of adjudication should have been limited in the present case to the examination whether provisions enumerated in part I point 6 of the operative part of the judgment are consistent with Article 42(2) and Article 51(2) in conjunction with Article 31(3) of the Constitution as well as Article 6(3)(b) and (c) as well as Article 10(1) of the Convention “due to” (this is how the scope of the allegation is formulated in the application) the fact that they do not include the protection of professional confidentiality that binds defence counsels and journalists.
Secondly, in this context, the Constitutional Tribunal also did not examine the issue referred to it completely: part I point 6 of the operative part of the judgment addresses only the lack of the guarantee of immediate, witnessed and recorded destruction of material that contains information prohibited from being used as evidence, with regard to which the court has not lifted the requirement of professional confidentiality or in the case of which the lifting of the requirement is inadmissible. However, in his application, the Public Prosecutor-General explicitly requests the Tribunal to determine – within a broader scope – whether that kind of material may be obtained in the course of operational surveillance. The issue of destroying possible material covered by the requirement of professional confidentiality does not exhaust the entirety of his allegations. The elements of the application submitted by the Public Prosecutor-General that have been overlooked in the operative part of the judgment are not covered by the decision to discontinue the review proceedings (cf. part III, point 13 of the statement of reasons); nor did the applicant file a statement about the withdrawal of that part of the application at the hearing (despite the fact that, in view of the questions posed by the judges adjudicating in the present case, the analysis of his application primarily cancelled the procedure for handling material covered by the requirement of professional confidentiality that had already been obtained, i.e. an ex post facto review).
4.2. I am convinced that the lack of a prohibition on obtaining material which is covered by the requirement of professional confidentiality that binds journalists and defence counsels is inconsistent (respectively) with Article 42(2) and Article 51(2) in conjunction with Article 31(3) of the Constitution, as well as with Article 6(3)(b) and (c) as well as Article 10(1) of the Convention.
In the statement of reasons for its judgment (part III point 11.6), the Constitutional Tribunal extensively analyses these two legal institutions, and so there is no need to repeat those findings here. It suffices to state that without the requirement of professional confidentiality that binds defence counsels, there could be no right to defence, and without the same requirement binding journalists – the freedom of the press. Professional confidentiality should in no way be regarded as a privilege for advocates (and within a narrower scope – also legal advisers) and journalists, as it constitutes an instrument for the protection of the rights of (respectively) their clients or people they work with (informants; cf. in particular, the judgment of 22 November 2004, ref. SK 64/03, OTK ZU No. 10/A/2004, item 107).
Unlike a majority of the judges adjudicating in the present case, I hold the view that a sufficient solution to the problem presented by the Public Prosecutor-General was only to introduce a guarantee that material obtained in breach of prohibitions on evidence will be properly destroyed. Such a mechanism is, of course, important and useful, but only as a supplementary instrument – in the event of failure of the basic guarantee in the form of an absolute prohibition against intercepting conversations held by defence counsels and journalists within the scope of professional confidentiality that binds them. On the basis of life experience, it should be assumed that the disclosure of information prohibited from being used as evidence to the organs of the state that carry out operational surveillance is irrevocable in a sense that data obtained this way will never be “deleted” from the minds of persons who had access to the information. It is only the usefulness of the information as formal evidence in criminal proceedings that is limited, but there are no actual obstacles (as this would be hardly possible) to use the information in the course of proceedings for other purposes (e.g. when planning the stages of preliminary proceedings).
Thus, it should be deemed that the challenged provisions – insofar as they do not provide, in the course of operational surveillance, for a prohibition on obtaining material covered by the requirement of professional confidentiality that binds defence counsels and journalists as well as a mechanism of immediate and recorded destruction of the said material collected despite the prohibitions – are inconsistent with Article 42(2) and Article 51(2) in conjunction with Article 31(3) of the Constitution, as well as Article 6(3)(b) and (c) as well as Article 10(1) of the Convention.
In my opinion, what constitutes a minimum guarantee of respect for the requirement of professional confidentiality that binds defence counsels and journalists is a prohibition on obtaining information covered by the said requirement; in the case of accidental collection of such information, such a minimum guarantee consists in the verification of the material by an independent court and either the lifting of the requirement of professional confidentiality or the destruction of collected material (cf. the judgment of 11 December 2012, ref. no. K 37/11, OTK ZU No. 11/A/2012, item 133, and the ECHR judgments cited therein of: 16 October 2001 in the case of Brennan v. the United Kingdom, application no. 39846/98; and 13 January 2009 in the case of Rybacki v. Poland, application no. 52479/99). In practice, these requirements will be met by introducing, in principle, an absolute prohibition against the operational surveillance of advocates and journalists which could only be lifted by a court and only insofar as it would not affect absolute professional confidentiality that binds defence counsels and journalists.
4.3. In my view, there is no doubt that the operative part of the judgment of the Constitutional Tribunal does not also respect the standards formulated by the ECHR with regard to professional confidentiality that binds defence counsels and journalists in the context of operational surveillance in the light of Article 6(3)(b) and (c) as well as Article 10(1) of the Convention (which are higher-level norms for the review in the present case).
In the said jurisprudence, it was stressed inter alia that it was inadmissible to tolerate a situation where a formal prohibition on intercepting the conversations of advocates was not respected, as information obtained from such interception was viewed by a post office clerk (i.e. a person subordinate to the executive branch, without any judicial review (cf. the judgment of 18 May 2010 in the case of Kennedy v. the United Kingdom, application no. 26839/05, paras 73 and 74). Also, it has been stressed many times that a threat to the right to defence was not only posed by actual operational surveillance, but also by a justified conviction that a conversation between the defence counsel and his/her client may be recorded or intercepted. This may make clients conceal essential facts to the detriment of a line of defence (cf. inter alia the ECHR judgments of: 6 September 1978 in the case of Klass and Others v. Germany, application no. 5029/71; 25 June 1997 in the case of Halford v. the United Kingdom, application no. 20605/92; 10 May 2007 in the case of Modarca v. Moldova, application no. 14437/05)
A similar stance has been adopted in the ECHR jurisprudence on the confidentiality of contacts between journalists and their informants. It has been indicated inter alia that the lack of protection for informants may discourage them from imparting information which concerns the public interest to the media and thus this may prevent the media from fulfilling their basic role of a public watchdog (cf. inter alia the ECHR judgments of: 27 March 1996 in the case of Goodwin v. the United Kingdom, application no. 17488/90, 22 November 2007 Voskuil v. the Netherlands, application no. 64752/01).
5. Final remarks.
In conclusion, I would like to emphasise that, in the context of the present case, I am deeply concerned about the tendency to grant competence to obtain information on citizens to an increasing number of police forces and state security services (cf. e.g. Article 7(4) of the Act of 26 May 2011 amending the Act on Gambling and certain other acts, Journal of Laws ‑ Dz. U. No. 134, item 779, which entered into force on 14 July 2011 and made it possible for the Customs Service to use the so-called telephone billing data).
What mainly raises my reservations is the lack of due diligence on the part of the legislator, when it comes to examining what scope of surveillance of citizens by the state is really indispensable for the prevention and detection of offences. I am also afraid that the legislator does not assign adequate importance to the necessity to provide relevant procedural guarantees against the excessive reliance of the police, the Internal Security Agency, the Central Anti-Corruption Bureau, and other state security services on their competences within operational surveillance and access to telecommunications data.
Dissenting Opinion
of Judge Marek Zubik
to the Judgment of the Constitutional Tribunal
of 30 July 2014, ref. no. K 23/11
On the basis of Article 68(3) of the Constitutional Tribunal Act of 1 August 1997 (Journal of Laws ‑ Dz. U. No. 102, item 643, as amended; hereinafter: the Constitutional Tribunal Act), I submit my dissenting opinion to the judgment of the Constitutional Tribunal of 30 July 2014, ref. no. K 23/11.
1. I disagree with the stance held by the Constitutional Tribunal with regard to point 3(a) of the operative part of the judgment. The Tribunal deemed that Article 27(1) in conjunction with Article 5(1)(2)(a) of the Act of 24 May 2002 on the Internal Security Agency and the Foreign Intelligence Agency (Journal of Laws ‑ Dz. U. of 2010 No. 29, item 154, as amended; the Act on the Internal Security Agency), insofar as it comprised the wording “and other offences against national security”, was consistent with Article 2, Article 47 and Article 49 in conjunction with Article 31(3) of the Constitution as well as with Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950, amended by Protocol Nos. 3, 5 and 8 as well as supplemented by Protocol No. 2 (Journal of Laws ‑ Dz. U. of 1993 No. 61, item 284, as amended; hereinafter: the Convention).
2. National security is a value that is protected constitutionally. The protection of that value authorises the legislator to introduce restrictions as to the exercise of constitutional rights and freedoms (vide: Article 5, Article 31(3) of the Constitution). In the present case, none of the participants in the review proceedings questioned those circumstances. However, the constitutional issue was something else. The point was to answer the question whether the legislator – in a way that was sufficiently precise – regulated the competence of the Internal Security Agency to secretly interfere in the privacy of individuals, and in particular whether the challenged provision allows one to determine what offences fulfil the general premiss of “being against national security”, and at the same time may be regarded as serious to a degree that it is justified and proportionate to resort to operational surveillance in that respect.
Unlike the Tribunal, I hold the view that the provisions indicated in point 3(a) of the operative part of the judgment do not meet the requirement of a high degree of precision that should characterise provisions permitting interference in the personal freedoms of the person and which arises both from Article 2 as well as Article 31(3) of the Constitution, in the part which comprises the wording that “any limitation (…) may be imposed only by statute”.
3. The Tribunal’s judgment within that scope constitutes the acceptance of a standard for the protection of the rights and freedoms of individuals that is below requirements set for the legislator by the Constitutional Tribunal itself and the European Court of Human Rights. In my opinion, the said ruling reduced the Polish system of protection of the individual’s rights to a level that is below requirements arising not only from the Constitution but also from the Convention.
4. The significance of national security and of the peaceful cooperation between nations is strikingly reflected in the historical experience of the Polish state. However, not every threat to the functioning of public institutions justifies interference in the rights and freedoms of citizens, even by a state that has so greatly been affected by wars and a totalitarian regime, in which secret services were used to repress citizens, at the times “when fundamental freedoms and human rights were violated in our Homeland” (the Preamble to the Constitution).
The necessity to declare the constitutionality of Article 27(1) in conjunction with Article 5(1)(2)(a) of the Act on the Internal Security Agency, in the part comprising the wording “and other offences against national security”, did not stem, in my view, from the justified needs of the state. Indeed, there was no obstacle for the legislator to specify the said provisions by correlating the said premiss with specific offences.
5. It is hard to accept a ruling on the constitutionality of provisions which include a term lacking sufficient specificity, namely “offences against national security”, when Article 27(1) in conjunction with Article 5(1)(2)(b) of the Internal Security Agency, which referred to “the essential economic interests of the state”, was ruled to be unconstitutional.
In my view, both provisions, to the same extent, fail to specify the scope ratione materiae of operational surveillance. Indeed, it is unclear what offences are against “national security” and “the essential economic interests of the state”. Therefore, there were no justified reasons to treat the two provisions differently.
6. The ruling about the conformity of the said provision to the Constitution and the Convention is incomprehensible also for another reason. Even authorities involved in the procedure for ordering operational surveillance perceive the defectiveness of the provision. The representative of the Public Prosecutor-General – the authority which grants permission to the Head of the Internal Security Agency to apply for the ordering of such surveillance – explicitly stated that the lack of indication of the types of offences might lead to divergent views presented by the Head of the Internal Security Agency, the Public Prosecutor-General and the Circuit Court in Warsaw when it comes to categorising a given offence as one that is “against national security”. Also, the representative of the Internal Security Agency pointed out that in practice there were difficulties with the interpretation of that provision, and proposed that the provision should be made more precise, so that the scope of authorisation to carry out operational surveillance could be set by indicating the types of offences. This may limit the effectiveness of operational surveillance, and consequently the efficiency of actions of police forces and state security services.
7. Article 5(1)(2) of the Act on the Internal Security Agency enumerates a number of offences which are undoubtedly against national security. They comprise the following: espionage, terrorism and the unlawful disclosure or use of confidential information (Article 5(1)(2)(a)); the production of and trade in goods, technologies and services that are of strategic significance for national security (Article 5(1)(2)(d)) as well as illegal production, possession and trade concerning weapons, ammunition and explosives, weapons of mass destruction as well as narcotic drugs and psychotropic substances on an international scale (Article 5(1)(2)(e)). There is no doubt that the said provisions specify serious offences. What follows from the interpretation of the expression ‘and other offences against national security’, included in Article 5(1)(2)(a) of the Act on the Internal Security Agency, is that it is to refer to different offences than those enumerated in Article 5(1)(2)(a)-(e) of the Act on the Internal Security Agency.
8. As aptly argued by the Ombudsman in his application and at the hearing, the expression “offences against national security” do not meet constitutional requirements that arise from the principle of sufficient specificity of law. None of the provisions of the Act on the Internal Security Agency uses that phrase or determines what offences are against national security. Although Article 112 of the Act of 6 June 1997 – the Penal Code (Journal of Laws ‑ Dz. U. No. 88, item 553, as amended) mentions offences against the internal and external security of the Republic of Poland, and this alludes to the phrase in the challenged provision, there is no consistency among experts as to what offences may be meant here. In the doctrine of criminal law, it is argued that the said provisions above all comprise offences which have been categorised in chapter XVII (“Offences Against the Republic of Poland”) and chapter XVIII of the Penal Code (“Offences Against National Defence”). However, it may not be ruled out that the said interest may be undermined by prohibited acts regulated in the other chapters of the Penal Code, as well as in special statutes (see inter alia T. Gardocka, comment 7 on Article 112, [in:] Kodeks karny. Komentarz, R. Stefański (ed), Beck online 2014; K. Wiak, comment 7 on Article 112, [in:] Kodeks karny. Komentarz, A. Grześkowiak, K. Wiak (eds), Warszawa 2013; A. Sakowicz, comment 5 on Article 112, [in:] Kodeks karny. Część ogólna. Tom II. Komentarz do art. 32-116, M. Królikowski, R. Zawłocki (eds), Warszawa 2010). Consequently, I hold the view that there is no possibility of determining – without undertaking extraordinary interpretative efforts and resorting to an interpretation by drawing an analogy – which prohibited acts constitute “offences against national security”, within the meaning of Article 5(1)(2)(a) of the Act on the Internal Security Agency. Therefore, it may not be ruled out, as the applicant rightly pointed out, that every act prohibited by a relevant Polish criminal-law statute which may directly or indirectly be targeted at the state – including e.g. persons who hold public offices, their activity or public assets – may be regarded as one against national security, and thus will constitute a legal basis for carrying out operational surveillance.
Moreover, the fact whether a given offence displays the statutory characteristic of ‘being against national security’ is not determined by statute but by a given authority, the Head of the Internal Security Agency, who is responsible for applying the law, and the Circuit Court in Warsaw, which grants permission for operational surveillance. Thus, the said provision may be regarded as a blanket provision within the meaning of the Tribunal’s previous jurisprudence (see the judgments of the Constitutional Tribunal of: 5 May 2004, ref. no. P 2/03, OTK ZU No. 5/A/2004, item 39; 17 December 2008, ref. no. P 16/08, OTK ZU No. 10/A/2008, item 181).
Thus, considering the above, I agree with the allegation that Article 27(1) in conjunction with Article 5(1)(2)(a) of the Act on the Internal Security Agency, insofar as it comprises the expression “and other offences against national security”, is inconsistent with Article 2 of the Constitution.
9. I also agree with the Ombudsman’s allegation that the indicated provision has infringed Articles 47 and 49 in conjunction with Article 31(3) of the Constitution. Insufficient specificity leads to a situation where Article 27(1) in conjunction with Article 5(1)(2)(a) of the Act on the Internal Security Agency may not only comprise serious offences, but also offences which causes detrimental effects that are of relatively low significance. In such cases, bearing in mind the negative aspects of interference in private life and the privacy of communication, the application of operational surveillance is excessive, within the meaning of Article 31(3) of the Constitution.
Neither on the basis of arguments presented by the participants at the hearing, nor on the basis of the Tribunal’s own findings, may one confirm the thesis that the said provision is applied as a basis of operational surveillance only in the case of serious offences. Also, it proves to be impossible confirm that there is a consistent and well-established line of jurisprudence which provides for a strict interpretation of the expression “offences against national security”. Furthermore, there is no chance that such a line of jurisprudence will be established, as court decisions are not justified, and a court procedure is carried out with adherence to provisions on the protection of confidential information. Moreover, the President of the Circuit Court in Warsaw, who orders operational surveillance upon the application filed by the Head of the Internal Security Agency, does not carry out an analysis of jurisprudence in terms of its consistency, which is stipulated by Article 22(1) of the Act of 27 July 2001 – the Law on the Organisational Structure of Common Courts (Journal of Laws ‑ Dz. U. of 2013 item 427, as amended).
10. From the point of view of the individual, it is irrelevant which of the organs of the state infringes his/her constitutional rights or freedoms. Such an infringement may be made by the organs of the legislative and executive branches, or even by the judiciary.
The organ of the state that comprises elected representatives of the Nation, i.e. the Parliament, should take on the burden of political responsibility for making it possible to apply operational surveillance in given situations. It has the obligation to indicate serious offences that are against national security and which justify the carrying out of operational surveillance by the Internal Security Agency. Since this has not been done by the legislator, which – in my opinion – results in an infringement of the Constitution, this will be determined in individual cases by the organs of public authority which are responsible for applying the law. Hence, there is no guarantee that operational surveillance will only be ordered for the purpose of preventing or prosecuting serious offences.
11. The lack of correlations between particular types of offences and the basis for ordering operational surveillance limits the judicial review of the constitutionality of law. In principle, the Tribunal may not examine a way in which given provisions are applied. Therefore, there is a risk that the Tribunal could not examine permission to apply operational surveillance in the context of prosecuting a given offence even when it was obvious that a given offence could not be regarded as serious. In other words, what we see here is a kind of a vicious circle. The Tribunal considers the currently challenged provisions to be constitutional, assuming that they will be applied correctly by the organs of the state. However, if they are not applied in compliance with the Constitution, the Tribunal will refuse to review their constitutionality, deeming that allegations of this kind concern the manner of applying the law.
12. In the jurisprudence of the ECHR, there is the well-established view that the “nature of offences” should be determined, if the prosecution thereof authorises the secret obtaining of information on persons. In my view, the said requirement is not met by the expression “offences against national security”. Even if one is to deem that, in Article 5(1)(2)(a) of the Act on the Internal Security Agency, the legislator specified the nature of offences by means of an interest protected by the law, namely national security, then the scope ratione materiae of operational surveillance is too broad.
As it was established by the ECHR in its judgment in the case of Iordachi and Others v. Moldova, application no. 25198/02, Moldovan provisions permitted the use of telephone tapping in order to prevent serious, very serious and exceptionally serious offences, i.e. offences which are punishable in Moldovan law with the deprivation of liberty of up to fifteen years or a more severe penalty. This entailed that telephone tapping was possible in the case of approximately 60% of offences specified in the Moldovan Criminal Code. The legislation failed to specify grounds for applying tapping, such as “national security”, “public order”, “protection of health”, “protection of morals”, “protection of the rights and interests of others”, “interests of ... the economic situation of the country” or “maintenance of legal order” (para 46 of the judgment in the case of Iordachi and Others v. Moldova). The European Court of Human Rights deemed that consequently such a solution was insufficient from the point of view of the quality of the law in question, required by Article 8 of the Convention.
In my view, we deal with an analogical situation in the context of the Act on the Internal Security Agency. Thus, the Tribunal should have assessed whether it was possible to determine a closed catalogue of offences that were “against national security”. Subsequently, it should have been stated whether the catalogue comprised only those offences the detrimental effects of which justified interference in the individual’s rights and freedoms in the course of operational surveillance. However, the Tribunal did not do that.
Taking the above into consideration, I hold the view that the challenged provision also infringes Article 8 of the Convention, with all consequences that arise therefrom for possible individual applications to the European Court of Human Rights.
13. The Constitutional Tribunal based its ruling on the assumption that courts arrive at the correct interpretation of provisions. As it has been stressed in the relevant report of the Office of the United Nations High Commissioner for Human Rights on the subject of the protection of privacy in the digital age, secret rules and secret interpretations – even secret judicial interpretations – of law make it impossible to determine that the law which regulates operational surveillance meets quality requirements and in a proper way specifies circumstances where it is admissible to secretly obtain information (see The right to privacy in the digital age ‑ Report of the Office of the United Nations High Commissioner for Human Rights, 30 June 2014, para 29).
Consequently, I hold the view that the Tribunal’s ruling on the challenged provision – in the case of its lack of the required precision as well as the confidentiality of judicial decisions on the ordering of operational surveillance on the basis thereof – remains contrary to the requirements for the protection of human rights set by the United Nations, and in particular by Article 17 of the International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly in New York on 19 December 1966 (Journal of Laws ‑ Dz. U. of 1977 No. 38, item 167).
For the above reasons, I have deemed it necessary to submit the dissenting opinion.