Venice Commission comments on amendment to Police Act

he Venice Commission has adopted an opinion on the amendment to the Police Act enacted by the Sejm in January 2016, presenting an assessment of the new law’s compatibility with international law. The opinion was requested by the Parliamentary Assembly of the Council of Europe.
The purpose of the amendment to the Police Act was to implement a judgment of the Constitutional Tribunal from July 2014, in which the Tribunal ruled that a number of legal provisions governing the functioning of the police and special services were unconstitutional. According to the Venice Commission, the law enacted in January to a significant degree implements the recommendations expressed in the judgment of the Constitutional Tribunal. On the other hand, the Commission pointed to numerous deficiencies in the new law that should be remedied by the Polish legislator.

Above all, the Commission noted that the new law established very broad grounds for the services’ access to telecommunication or online data of citizens, which causes concerns as to their compliance with the requirement of foreseeability applicable to any interference in the right to privacy protected by the European Convention on Human Rights. The legislator should introduce legal norms that would limit the access of law enforcement authorities to data and stipulate a detailed description of circumstances in which such access may lawfully be obtained. Furthermore, the Venice Commission indicated that the provisions should determine in which situations such data may be used, e.g. in the case that other, less invasive measures have proven ineffective. The law should also take into account situations in which telecommunication or online data may be closely related to the content of correspondence (e.g. browser search results, subjects of emails).

The data so collected should also be subject to an effective system of oversight by an independent body, reads the opinion of the Venice Commission.

The Venice Commission observed that the newly established system of ex-post judicial oversight based on bi-annual statistical reports is insufficient and ineffective.

The Commission also discussed the consequences of the amendment to the Code of Criminal Procedure that was enacted in March 2016. The amendment abolished the requirement to obtain judicial approval for data collection in cases where further illegal conduct is revealed as a by-product of an existing investigation. Pursuant to the amendment to the CCP passed in March, it is a prosecutor who takes a decision to use such data in criminal proceedings. The Venice Commission argues that this decision should be taken by a court.

The Commission also analysed the issue of protection of information covered by professional privileges. The relevant procedure, established under the Police Act and by other laws, enables law enforcement authorities to use such information, upon obtaining a court order, provided it is necessary “from the viewpoint of the justice system”. “According to the Commission, such a solution is insufficient because it does not protect against purposeful collection of such data which may happen even if it is evident that they will not need to be used at further stages of criminal proceedings”, says Barbara Grabowska-Moroz, a lawyer working with the HFHR. “The Venice Commission noted that in certain situations a conversation between a lawyer and a client should be presumed ‘on the face’ to be covered by the attorney-client privilege, for example if it happens during a prison visit. Polish law, on its part, should provide more effective safeguards against covert surveillance employed to uncover the content of privileged information disclosed to defence lawyers or journalists”, Ms Grabowska-Moroz adds.