An exemption from the obligation of statistical confidentiality K 33/08
The lack of indication of premisses of an exemption from the obligation of statistical confidentiality in criminal proceedings is inconsistent with the Constitution.
At the hearing on 13 December 2011 at 9 a.m., the Constitutional Tribunal considered an application submitted by the Polish Ombudsman with regard to an exemption from the obligation of statistical confidentiality.
The Constitutional Tribunal adjudicated that: Article 180(1) of the Act of 6 June 1997 – the Code of Criminal Procedure, insofar as it concerns an exemption from the obligation of statistical confidentiality
- is inconsistent with Article 47 and Article 51(2) in conjunction with Article 31(3) of the Constitution, due to the fact that it does not specify the premisses of an exemption from the obligation of statistical confidentiality,
- is not inconsistent with Article 42(3) of the Constitution,
- is consistent with the principle of protection of citizens' trust in the state and its laws, arising from Article 2 of the Constitution.
Article 180(1) of the Act of 6 June 1997 – the Code of Criminal Procedure, within the scope indicated above, will cease to be legally binding after the lapse of 12 months from the day of the publication of the judgment in the Journal of Laws.
The applicant challenged the constitutionality of the regulation which provided for the possibility of disclosing information obtained for statistical purposes from individuals and the enterprises of the national economy, so that the information could be used for the purposes of criminal proceedings.
In the view of the Constitutional Tribunal, the circumstance that an entity to which confidential statistical information is related does not participate in the procedure specified in Article 180(1) of the Code of Criminal Procedure does not entail that the said provision may not be subject to review from the point of view of the protection of the individual’s privacy. Indeed, an exemption from the obligation of statistical confidentiality entails providing an authority conducting criminal proceedings with information concerning individuals, and thus it constitutes interference with the realm of their privacy.
The Constitutional Tribunal does not share the view expressed in the application that the interest of public statistics takes precedence over the interest of the administration of justice. The interest of the administration of justice constitutes an important value in the proper functioning of a democratic state. In numerous situations, providing statistical information for the purposes of criminal proceedings may prove necessary for the proper course and outcome of the proceedings.
What is of significance when assessing the mechanism of exempting from the obligation of statistical confidentiality is the circumstance that information concerning a particular person, which has been obtained by the staff of a public statistics authority, and which has been provided for the purposes of criminal proceedings, is not made public. The provisions governing criminal proceedings provide for the guarantees of protection of confidential information, disclosed in the course of the proceedings.
Article 180(1) of the Code of Criminal Procedure does not specify the premisses of admissibility as regards an exemption from the obligation of professional confidentiality, granted by the court or prosecutor to a person who is bound to fulfil the obligation. It follows from the analysis carried out in that regard that neither the effect of the linguistic and systemic interpretation of Article 180(1) nor the hitherto practice of applying that provision guarantee that an exemption from the obligation of statistical confidentiality will occur only when this is necessary for the purposes of criminal proceedings, i.e. when there is no possibility of obtaining relevant information from other sources. Moreover, the lack of a checks procedure in the context of an exemption from the obligation of statistical confidentiality makes it impossible to verify the validity of a decision on an exemption from the obligation of statistical confidentiality with regard to specific information. For these reasons, the Constitutional Tribunal stated that Article 180(1) of the Code of Criminal Procedure did not fulfil the premiss of necessary restriction on the right to privacy and the right to information autonomy, as regards information which is subject to statistical confidentiality.
The Constitutional Tribunal deferred the date on which the challenged provision was to lose its binding force, within the indicated scope, by 12 months, in order to give the Parliament time to introduce appropriate legislative amendments.
The hearing was presided over by Judge Wojciech Hermeliński, and the Judge Rapporteur was the Vice-President of the Constitutional Tribunal, Judge Stanisław Biernat.
The judgment is final and its operative part shall be published in the Journal of Laws.