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Privacy in the digital era – Polish electronic surveillance law declared partially unconstitutional

Judgment of the Constitutional Tribunal of Poland of 30 July 2014, K 23/11

Published online by Cambridge University Press:  01 December 2015

Jan Podkowik
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Type
Case Notes
Information
European Constitutional Law Review , Volume 11 , Issue 3 , December 2015 , pp. 577 - 595
Copyright
Copyright © The Authors 2015 

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Footnotes

*

Ph.D. Assistant Professor at the Faculty of Law and Administration, Jagiellonian University in Cracow (post-doctorate researcher in the project: ‘Implications of constitutional adjudication on private-parties legal relationships’); law clerk in the Office of the Constitutional Tribunal of the Republic of Poland. Previously employed in the office of the Human Rights Defender and as an assistant professor at the National Defense University in Warsaw.

References

1 The operative part of the judgment is published in Dziennik Ustaw [Official Journal] 2014, item 1055. An official English version of the ruling does not exist.

2 The Constitution of the Republic of Poland of 2 April 1997, Dziennik Ustaw [Official Journal] 1997, no. 78, item 483.

3 It is worth mentioning that the Attorney General and divisional prosecutors play a crucial role in the ordering of an operational control and also have the power to grant or refuse consent for an operational control.

4 See Report of the High Commissioner for Human Rights on the right to privacy in the digital age, 30 June 2014; Gutwirth, S. et al. (eds.), Computers, Privacy and Data Protection: an Element of Choice (Springer Science & Business Media 2011)CrossRefGoogle Scholar; Grant, R.A. and Bennett, C.J., Visions of Privacy: Policy Choices for the Digital Age (University of Toronto Press 1999)Google Scholar.

5 See judgment of the Bulgarian Supreme Administrative Court, No.13627, 11 December 2008; judgments of the Romanian Constitutional Court No. 1258, 8 October 2009 and 8 July 2014; judgment of the Federal Constitutional Court of Germany, 2 March 2010, 1 BvR 256/08, 1 BvR 263/08, 1 BvR 586/08; judgment of the Czech Constitutional Court, 22 March 2011, Pl. ÚS 24/10; judgment of the Supreme Court of Cyprus, 1 February 2011, app. no.65/2009, 78/2009, 82/2009 & 15/2010-22/2010; judgment of Constitutional Court of Austria, 27 June 2014, G 47/2012; judgment of the Constitutional Court of the Republic of Slovenia, 3 July 2014, U-I-65/13-19.

6 See e.g. ECtHR 6 September 1978, Case No. 5029/71, Klass and Others v Germany; ECtHR 2 August 1984, Case No. 8691/79, Malone v The United Kingdom; ECtHR 24 April 1990, Case No. 11801/85, Kruslin v France; ECtHR 25 September 2001, Case No. 44787/98, P G and J H v The United Kingdom; ECtHR 29 June 2006, Case No. 54934/00, Weber and Saravia v Germany; ECtHR 1 March 2007, Case No. 5935/02, Heglas v Czech Republic; ECtHR 28 June 2007, Case No. 62540/00, Association for European Integration and Human Rights and Ekimdzhiev v Bulgaria; ECtHR 10 February 2009, Case No. 25198/02, Iordachi and Others v Moldova; ECtHR 2 September 2010, Case No. 35623/05 Uzun v Germany; ECtHR 23 October 2012, Case No. 22373/04, Hadzhiev v Bulgaria.

7 ECJ 8 April 2014, Case C-293/12, Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung and Others.

8 See Adamski, A., The telecommunication data retention in Poland: does the legal regulation pass the proportionality test?, 1 ICT Law Review (2013), p. 4-11Google Scholar.

9 The Telecommunications Act of 16 July 2004, Dziennik Ustaw [Official Journal] 2014, item 246.

10 Criminal of Criminal Procedure of 6 June 1997, Dziennik Ustaw [Official Journal] 1997, no. 89, item 555.

11 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, amending Directive 2002/58/EC, OJ L 105, 13.4.2006, p. 54-63, declared invalid by the ECJ on 8 April 2014, C-293/12.

12 There were political attempts in Poland to propose an even longer period of data retention than stipulated in the Directive (up to five years). This proposal, however, failed.

13 For instance, the Federal Constitutional Court of Germany in its judgment of 2 March 2010 ruled that a six-month period of retention is enough and must be deemed as the maximum allowed under the principle of proportionality.

14 Judgments of the Constitutional Tribunal of: 20 April 2004, K 45/02; 20 June 2005, K 4/04; 12 December 2005, K 32/04; 23 June 2009, K 54/07.

15 Decision of the Constitutional Tribunal of 25 January 2006, S 2/06.

16 Decision of the Constitutional Tribunal of 15 November 2010, S 4/10.

17 See the article Abuses in using surveillance methods against journalists – the need of legislative changes in Poland <humanrightshouse.org/Articles/15435.html> visited 19 October 2015.

18 Press release on Information for the European Commission on the provision of telecommunications data retained by telecommunications undertakings and operators in 2013 <en.uke.gov.pl/information-on-annual-report-on-the-provision-of-telecommunications-data-13559> visited 19 October 2015. See also Evaluation report on the Data Retention Directive (Directive 2006/24/EC), European Commission, COM(2011) 225 final; Access of public authorities to data of internet service users. Seven issues and several hypothesis, Panoptykon Foundation available at <panoptykon.org/sites/panoptykon.org/files/transparency_report_pl.pdf> visited 19 October 2015.

19 See among others: decision of the French Constitutional Council, 10 June 2009, No. 2009-580, in which the Council stated that internet access is a fundamental human right, protected by Art. 11 of the Declaration of the Rights of Man and the Citizen of 1789.

20 It is stipulated in the Police Act, Border Guard Act, Treasury-Intelligence Act and Military Gendarmerie Act.

21 ECHR 29 June 2006, Case No. 54934/00, Weber and Saravia v Germany.

22 ECHR 10 February 2009, Case No. 25198/02, Iordachi and Others v Moldova.

23 The European Court of Human Rights in the case of Kennedy v The United Kingdom explained, however, that the term ‘national security’ is sufficiently clear and frequently employed in national and international legislation, including Art. 8(2) of the Convention. This approach is also applied to surveillance legislation. Therefore, the ECtHR said in the case under consideration – contrary to its judgment in Iordachi v Moldova and the vast majority of judgments – that the requirement of ‘foreseeability’ of the law does not go so far as to compel states to enact legal provisions, listing in detail all conduct that may prompt a decision concerning individuals (ECtHR 18 May 2010, Case No. 26839/05, Kennedy v The United Kingdom, para 159).

24 These arguments were also raised in dissenting opinions to the judgment submitted by Justice Marek Zubik and Justice Wojciech Hermeliński, who contested the Tribunal’s reasoning on the provisions of the Internal Security Agency Act allowing for operational control in order to combat unspecified crimes against state security.

25 The judgment in this regard seems surprising for one more reason: at the hearing representatives of law enforcement and intelligence services pointed out that the legal definition of technical measures by their generic names do not influence their effectiveness in combating crimes.

26 ECtHR judgments regarding the issue refer mostly to the tapping and interception of telephone calls, not raising the issue of metadata directly. See amongst others: ECtHR in Klass and others v Germany, paras. 55-56, ECtHR 14 April 1990, Case No. 11801/85, Kruslin v France, para. 34; 29 June 2006, Case No. 54934/00, Weber and Saravia v Germany, paras. 115-117; 28 June 2007, Case No. 62540/00, Association for European Integration and Human Rights and Ekimdzhiev v Bulgaria, paras. 79-84; 25 June 2013, Case No. 18540/04, Valentino Acatrinei v Romania, paras. 57-59 and the cited previous judgments concerning Romanian cases; 15 January 2015, Case No. 68955/11, Dragojević v Croatia, § 92-95. In the case of Uzun v Germany the ECtHR accepted a subsequent court review (ex post revive) of surveillance consisting of monitoring the movement of vehicles via satellite navigation devices. See ECtHR 2 September 2010, Case No. 35623/05, § 71-72.

27 ECJ 8 April 2014, Case C-293/12, supra, § 62.

28 ECJ 7 May 2013, Case C-617/10, Åklagaren v Hans Åkerberg Fransson, § 19; ECJ 6 March 2014, Case C-206/13, Cruciano Siragusa v Regione Sicilia – Soprintendenza Beni Culturali e Ambientali di Palermo, § 21-25.

29 Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), OJ L 201, 31.7.2002, p. 37