The Act on the Organisational Structure of Military Courts Kp 5/15
“External access to court case files affects the administration of justice by courts, as both the course and effect of the basic activity of courts, namely adjudication, are reflected in court case files. The Constitution grants courts complete independence as regards considering cases and delivering rulings, which also implies that courts are guaranteed to exercise their judicial powers without any interference on the part of other authorities, including the Minister of Justice, i.e. a representative of the executive branch of government,” stated the Constitutional Tribunal.
On 25 May 2016 at 11 a.m., the Constitutional Tribunal (full bench) publicly delivered its judgment, issued at a sitting in camera, on the application of the President of Poland filed with regard to the Act on the Organisational Structure of Military Courts.
In its judgment of 25 June 2016, the Constitutional Tribunal adjudicated as follows:
I
1) Article 1(8) of the Act of 11 September 2015 amending the Act on the Organisational Structure of Military Courts (which added Article 15c(3)(3) to the amended Act) – insofar as it provides that, within the scope of external administrative supervision, the Minister of Justice may require the president of a military circuit court to provide, in justified instances and within a specific time-limit, court case files – is inconsistent with the prohibition against excessive interference and the principle of specificity of legal provisions, which arise from Article 2 of the Constitution, Article 173 and Article 178(1) in conjunction with Article 10(1), as well as Article 45(1), Article 47 in conjunction with Article 31(3) and Article 51(2) of the Constitution;
2) Article 1(15) of the Act of 11 September 2015 referred to in point 1 (which added Article 41(1a) to the Act of 21 August 1997 referred to in point 1), is inconsistent with the prohibition against excessive interference, which arises from Article 2 of the Constitution, Article 173 and Article 178(1) in conjunction with Article 10(1) as well as Article 45(1), Article 47 in conjunction with Article 31(3) and Article 51(2) of the Constitution, as well as is consistent with the principle of specificity of legal provisions, derived from Article 2 of the Constitution;
3) Article 1(16) of the Act of 11 September 2015 referred to in point 1 (which added Article 64c(2) and (3) to the Act of 21 August 1997 referred to in point 1), insofar as it provides that the Minister of Justice is the administrator of personal data mentioned in para 2, is inconsistent with Article 2, Article 173 in conjunction with Article 10(1) as well as Article 47 in conjunction with Article 31(3) and Article 52(2) of the Constitution.
II
The provisions indicated in part I are not inextricably linked with the Act as a whole.
Dissenting opinions to the judgment were submitted by the following judges of the Constitutional Tribunal: Zbigniew Jędrzejewski, Julia Przyłębska and Piotr Pszczółkowski.
In his application of 6 October 2015 filed within the scope of an a priori review provided for in Article 122(3) of the Constitution, the President of Poland requested the Tribunal to examine the conformity to the Constitution of certain provisions of the Act of 11 September 2015 amending the Act on the Organisational Structure of Military Courts (hereinafter: the amending Act). Allegations formulated in the above-mentioned application concerned regulations introduced into the Act of 21 August 1997 on the Organisational Structure of Military Courts (hereinafter: the amended Act), which had provided for the following powers of the Minister of Justice: to request court case files as part of external administrative supervision over military courts (Art. 15(3)(3), added to the amended Act); to request court case files related to cases considered by a judge before any disciplinary measures are taken with regard to the judge (Art. 41(1a) added to the amended Act); as well as to manage the personal data of parties, attorneys, and other participants in court proceedings (Art. 64c(2) and (3) of the amended Act).
The Tribunal took into account the fact that analogous legal regulations, pertaining to common courts, had already been assessed in the Tribunal’s judgment of 14 October 2015, ref. no. Kp 1/15. The Tribunal stressed that, notwithstanding the structural separateness of military courts, the constitutional principles of the independence of courts and judges also refer to military courts.
With regard to the allegation concerning the granting of powers to access court case files by the Minister of Justice as part of external administrative supervision over military courts, the Tribunal deemed that the challenged provision made it possible for an executive authority to interfere in the realm of competence reserved only for courts. External access to court case files affects the administration of justice by courts, as both the course and effect of the basic activity of courts, namely adjudication, are reflected in court case files. The Constitution grants courts complete independence as regards the consideration of cases and the delivery of rulings, which also implies that courts are guaranteed to exercise their judicial powers without any interference on the part of other authorities, including the Minister of Justice, who is a representative of the executive branch of government. The Constitution ensures that courts have full independence when it comes to considering cases and issuing rulings, which also means the necessity to exercise jurisdictional powers by courts, without any interference on the part of other authorities, including the Minister of Justice as an executive authority. A request made by the Minister of Justice for the provision of files concerning cases that are pending would affect the course of the consideration of the cases; moreover, this could cause a situation where judges would feel pressured, and this might in turn affect their determinations.
The Tribunal held that the challenged provision constitutes excessive interference with the principle of the independence of the judiciary as well as the principle of the independence of judges, and, consequently, it may threaten the exercise of the individual’s right to have his/her case considered by an independent and impartial court. At the same time, entrusting the Minister of Justice with the power to request court case files for the purpose of verifying activities undertaken within the scope of internal administrative supervision would also mean the disclosure of information included in such files to the Minister of Justice, including personal data, and also sensitive data. Thus, the legislator had disproportionately limited the rights specified in Articles 47 and 51 of the Constitution.
The above arguments also weigh in favour of declaring the unconstitutionality of the regulation which grants the Minister of Justice the power to request the president of a circuit military court to provide court case files in cases that were supervised by a judge before any disciplinary measures are taken with regard to the judge. Due to the significance of the value infringed by that power, i.e. the independence of the judiciary and judges, the Tribunal held that the regulation is unnecessary and constitutes excessive interference in the independence of the judiciary, and may possibly impact the independence of judges. Furthermore, the Tribunal confirmed the validity of the allegation about an infringement of the constitutional standards for the protection of the individual’s privacy and of the terms of obtaining information on the individual by public authorities, since the transfer of court case files is linked with collecting and processing personal data.
The legislator had also authorised the Minister of Justice to manage the personal data of parties, attorneys, and other participants in court proceedings. According to the Tribunal, the duties of the Minister of Justice specified in the Act on the Organisational Structure of Military Courts do not justify entrusting the said Minister with the discretionary competence to determine the objectives and means of processing personal data collected in unspecified “registers run on the basis of separate provisions”. When adding Article 64c(3) to the Act on the Organisational Structure of Military Courts, the legislator – unlike in regulations concerning common courts – granted the Minister of Justice general provisions to manage data without indicating that those were to be data from telecommunications systems, without any restrictions as to time or scope. Consequently, the Tribunal deemed that the analysed provision, within the challenged scope, does not meet the requirements for restricting the constitutional right to privacy, which are specified in Article 31(3) of the Constitution, as well as does not fulfil the premiss that the obtaining of information on citizens must be necessary, as set out in Article 51(2) of the Constitution. The impossibility of determining the actual scope of powers vested in the Minister of Justice also raises reservations in the light of the principle of specificity of legal provisions (Art. 2 of the Constitution). Moreover, in the opinion of the Tribunal, the lack of a relation between the admissible scope of processing personal data and the duties of the authority that has been vested with the said competence justifies ruling that the challenged provision is inconsistent with Article 173 in conjunction with Article 10(1) of the Constitution.
The presiding judge of the adjudicating bench was the President of the Tribunal, Judge Andrzej Rzepliński, and the judge rapporteur was Judge Piotr Tuleja.