SAC: in Poland, secret services cannot be left unsupervised

This is the key point of the judgment pronounced by the Supreme Administrative Court in a landmark case concerning a denial of access to public information on the use of GPS devices in police surveillance. The SAC accepted all the submissions raised by the HFHR in the cassation complaint and referred the case to the Provincial Administrative Court in Warsaw for reconsideration.

In May 2012, the Supreme Administrative Court decided to reopen the judicial examination of the cassation complaint brought by the HFHR in the above case. The SAC held that to have the full picture of the case the adjudicating panel would need to read an internal police regulation, whose partial disclosure had been requested by the HFHR.

To the surprise of the audience sitting in the courtroom, the Chief Commissioner of the Police declined to provide access to the document for the purpose of the pending proceedings. He contended that the adjudicating panel of the SAC was not authorised to access to classified materials of that kind.

In the oral reasons for the judgement, the presiding judge Irena Kamińska noted that administrative courts are required to review cases with respect to both substantive and procedural aspects. In the Judge’s opinion, a denial of access to the said document deprives the Supreme Administrative Court of the possibility of reviewing substantive merits of the case. This not only makes the review process incomplete but also creates the risk that the right to court will not be fully exercised.

Further, Judge Kamińska presented the exhaustive reasoning that the Chief Commissioner of the Police had no right to deny to the court access to the document which had been the subject of the Foundation’s motion. According to the court’s assessment, the legal basis for the refusal cited by the Commissioner applies to courts treated as administrative rather than judicial entities. This distinction has been long-confirmed in the jurisprudence of the Supreme Court.

Referring to articles 10 and 173 of the Polish Constitution, Judge Kamińska also reminded that the division of powers into the executive, legislative and judicial branch, together with the system of checks and balances, is one of the basic principles of a democratic state ruled by law. She said that it is not acceptable where some bodies are above the law and are not subject to any oversight. In addition, Judge Kamińska stressed that state law enforcement and intelligence agencies had a tendency to keep their activities secret and to avoid any supervision. According to the Judge this is harmful to the process of building a state ruled by law in Poland.

She recommended that the Provincial Administrative Court in Warsaw should once again request the Chief Commissioner of the Police to grant access to the said document. If the Commissioner fails to comply, the first-instance adjudicating panel should fine him under article 112 of the Administrative Courts Procedure Act and report the case to the Prime Minister. This procedure has to be repeated until it brings the desired effect.

The Helsinki Foundation for Human Rights is represented by the advocate Kacper Florysiak with the Pietrzak & Sidor Law Office.