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Senate starts working on implementation of Constitutional Tribunal’s judgment on special services

In 2014, the Constitutional Tribunal held that the laws that authorise special services to obtain records from telecommunication providers were unconstitutional. The regulations will lose their force in February 2016. The Senate is now working on amendments to the soon-to-be-abolished provisions and the implementation of the Tribunal’s judgment. The HFHR has presented an opinion statement on the current draft to the Senators.

“The current version of the draft fails to implement the Constitutional Tribunal’s judgment and entirely disregards the judgment of the European Court of Justice in Digital Rights Ireland, in which the ECJ abolished EU’s Data Retention Directive”, says Barbara Grabowska-Moroz, HFHR’s legal expert.

The Constitutional Tribunal stated that one of the key defects of then-existing legal framework of secret services’ access to telecommunication data was the absence of an independent control mechanism. The proposed amendment, in its current wording, makes no improvement in this area. According to the draft, preventive control of access to telecommunication data will be exercised by a court but only in respect of the data of persons practising a profession of public trust (e.g. journalists, attorneys). Ex-post control is to be based on reports sent by services to courts in six-month intervals. The courts will follow up on the reports and perform further control actions.

“The draft offers much lower standard of protection of the right to privacy than that provided by the bill prepared earlier by the Senate’s Human Rights, Rule of Law and Petitions Committee”, Barbara Grabowska-Moroz points out. “The previous draft required the appointment of personal data officers in individual special agencies, as well as strengthened the relevant competencies of the Inspector General for the Protection of Personal Data. This was a consequence of the conclusions of the Supreme Audit Office’s report on the acquisition of telecommunication data by special services”, she adds.

The Helsinki Foundation is especially critical of the abandoning of the concept of a control body independent from special services, composed of retired judges, among other persons. The proposal of establishing such a body, styled after similar institutions functioning in other European states, had been publicly discussed since it had been presented by a Secretary of State at the Chancellery of Prime Minister in 2011. A body like that, if established, would provide an opportunity for the professional and independent control over the services, for example to hear individuals’ complaints against practices of the services.

“Since the draft fails to take account of guidelines resulting from the judgment of the European Court of Justice, such as those regarding differentiation of data access rules based on potential interference in the right to privacy, or the type of a prosecuted offence, this means that we still deal with a disproportionate violation of constitutional rights, and also the EU law”, Ms Grabowska-Moroz notes.

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