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Ref. DC 109(2016)

Surveillance powers too broad in Poland, according to Council of Europe’s Venice Commission

Venice 10.06.2016 In an opinion adopted today, the Council of Europe’s constitutional law experts – the Venice Commission – recommend introducing additional checks to surveillance powers of police and other law enforcement agencies in Poland.

Many states face veritable threats from terrorism and organised crime. Under the European Court of Human Rights, states have a margin of appreciation in deciding how to draw the balance between security and liberty. According to the opinion, Poland is by no means alone in having attracted considerable criticism as to how this balance has been drawn.

The Venice Commission noted that amendments to the Police Act introduced earlier this year followed many recommendations from a 2014 Constitutional Tribunal judgment, which was positive.

However, procedural safeguards and material conditions set in the Police Act for carrying out secret surveillance in some respects are still insufficient to prevent excessive use and unjustified interference with individual privacy.

The opinion – requested by the Council of Europe's Parliamentary Assembly – focuses on two provisions of the Act. Article 19 regulates “classical” surveillance measures such as wire-tapping. Article 20c describes the collection of “metadata,” which refers to all data connected to tele- and internet-based communication, from websites visited to localization of cell phone use.

The Venice Commission considers that some types of metadata are so sensitive (web-logs, for example) that obtaining such data should require judicial authorisation, by analogy with “classical” surveillance. For accessing other, less sensitive, types of metadata judicial warrant may not be necessary, but the law should put in place a system of effective subsequent oversight of specific metadata monitoring operations by an independent body. The existing system of “generalized reporting” to a court every six months is inefficient. 

Among Venice Commission recommendations to improve the Act:

·         Strengthen the proportionality principle, by elaborating the test applicable to secret surveillance ordered under Article 19, and by introducing this test in relation to obtaining metadata under Article 20c, to ensure that secret surveillance/metadata collection ordered only in the most serious cases, especially under the “urgent procedure” (Article 19 para. 3);

·         Limit duration of metadata monitoring and require police to keep proper records which should enable effective subsequent control of monitoring operations;

·         Complement the system of judicial pre-authorisation of the “classical” surveillance under Article 19 with additional procedural safeguards (“privacy advocate”, complaints mechanism, a system of subsequent automatic oversight of such operations by an independent body, etc.);

·         Provide, with respect of metadata collection under Article 20c, an effective mechanism of oversight of specific operations by an independent body; such a body should have necessary investigative powers and expertise and be able to use appropriate legal remedies.

·         Prevent surveillance violating secrecy of lawyer-client communications.

The text of the opinion, as adopted, will be made available on the afternoon of Monday 13 June 2016.

ContactPanos Kakaviatos, Spokesperson/Press officer, tel +33. 6 98 37 64 04