The Deputy Foreign Minister Alexander Stępkowski will take part in Friday’s deliberations the Commission, which is expected to adopt an opinion on the law enacted in January of changing the rules of surveillance – which was a consequence of the judgment of the Constitutional Court of 2014. Of the partial unconstitutionality.
In April, a delegation of the Venice Commission – the advisory body of the Council of Europe – visited Poland in this case.
Draft opinion of the Venice Commission ws. Police Act
According to unofficial reports, in the draft opinion of the Commission – which has 33 pages and 133 points – a sentence about “the general weakness of the system of supervision over the special services” and the recommendation this end to establish a new, independent body .
Poland submitted its position on the draft opinion, which proposed several amendments.
Alexander Stępkowski told reporters that the draft opinion includes an assessment of the law and the recommendations of the Commission. – The Commission recognizes that the law implements the judgment of the Tribunal; recommendations of the Commission do not always go in the same direction in which they go recommendations TK – he added. He stressed that because “not all of the recommendations we will be willing to take into account.”
– The Venice Commission sees several points of law which it considers appropriate warning about some changes, but as a rule did not carry criticism of the law – said the deputy head of the Foreign Ministry. – You can talk about far more restrained attitude of the composition of the Commission experts sooner than that, who spoke on the Constitutional Tribunal Act – Stępkowski said.
(PHOTO: TVN24 / x-news. The head of the Venice Commission on the opinion of ws. A Surveillance Act: It will be impartial evaluation)
visits in February and in April
In February, a delegation of the Venice Commission was in Warsaw at the invitation of the Foreign Ministry, preparing an opinion on the amendment of the Constitutional Tribunal Act of December 2015. By PiS. In March opinion, the Commission assessed that the “weakening the effectiveness of the Court would undermine democracy, human rights and the rule of law” in Poland. The Commission, whose opinion is not binding, called for, among others, Government to publish the decision of the Tribunal on March 9, in which it concluded that the novel is unconstitutional. The government does not recognize the judgment, because he fell on the principles of the December story. On Friday, members of the Commission will be informed of developments ws. TK.
On the other hand, in April, Commission experts visited Poland on the amendment of the Police Act and other laws. They met with representatives of government, parliament, the courts, the Ombudsman, legal corporations and non-governmental organizations. After the visit prepared a 33-page draft opinion.
Polish position for the Commission and unofficial opinions
– The expectations of the Commission are slightly detached from reality – evaluates the condition of anonymity representative of the Polish government, interviewed by PAP. An example would be a recommendation for Poland to set up an independent body to supervise the operational activities of the special services and the collection of their data communications. – This concept is in contrast with the judgment TK, who pointed out the role of the courts – said the PAP interlocutor.
The 9-page position of Polish Commission – reached by the PAP – stated that it is surprising that the Commission has to determine “the general weakness of the system of control over the services” did not present proposals for enhancing the effectiveness of judicial control over the activities of operational services, and calls for the creation of a new body of indeterminate structure. Poland also raises the question of whether such an arrangement is effective in other countries of the Council of Europe.
The position emphasized that operational control was used in Poland only when other measures have proved insufficient, and is only used in the most dangerous crimes. It added that in 2015. Controlling this applied to 3.7 percent. crimes for which it is possible on the basis of the Police Act.
prepared by PiS deputies novella several laws regulating the surveillance was performing Tribunal’s judgment of July 2014. TK then found unconstitutional the part of the rules for collecting the special services of telecommunications data, Internet and postal and conducting operational control. Parliament passed an amendment on January 15, against the wishes of the entire opposition. The Senate approved it without amendments on January 29. The president signed it on February 3.
(VIDEO TVN24 / x-news. Deputy Alexander Stępkowski before the meeting of the Venice Commission).
The amendment of the Police Act
According to the novella, operational control – with the prior consent of the court – involves: Others; Preview of the “spaces, means of transport or places other than the public”; control of correspondence (including electronic); checks on consignments; obtaining data from the “information media, telecommunications terminal equipment, information systems and telecommunications.” The total period of inspections may not exceed 18 months (except for counterintelligence).
The most controversy sparked a matter of acquiring the services of telecommunications data. Earlier, after the data to operators and Internet companies service occurred “for the purpose of proceedings” in writing – and the way they were getting. The amendment introduced on-line access – the so-called. a secure Internet connection. After the data service may extend not only to the needs of the proceedings, but also to “the prevention or detection of crime,” “saving human life or health, or support the exploration activities” or “statutory tasks”. To acquire content eg. E-mail or chat is still needed prior consent of the court.
According to NGOs novel allows tracking service by a person using a GPS transmitter (for observation in public places does not require the consent of the court). According to them, the service could also use spyware to access to the “data carrier and telecommunications terminal equipment.”
Despite the fact that TK called for shortening the shelf life of billing, in the novel maintains a statutory – 12 months. The data, which according to the prosecutor are not relevant to the criminal proceedings, will be immediately destroyed.
Critics of the amendment had doubts about citizens’ lack of post factum that they were under surveillance. Also suggested a provision that any data can be downloaded only if you suspect the most serious crimes, and when other methods are ineffective.
District Courts were given the right to control ex post facto acquisition by the services data telecommunications, postal and Internet. Competent authorities every six months shall communicate to the court relevant reports. The court would read the materials supporting the sharing of data. According to critics of the novel, this control will not be real, because it will take place on the basis of general statements, and the court will be able to, but you will not have to, verify that the data was collected legitimately.
Justice Minister has to submit every year to the Sejm and the Senate general information about the data processing and control results.
The amendment contains a provision reported by the government – that if the service will have operational control information which is secret or confession in his own defense, it will be immediately destroyed. For other trade secrets (eg. Journalism, ordinary lawyer or a doctor) the court has to decide whether they can be used in the proceedings, or destroyed. Requested by the prosecutor, who will obtain the services of such materials. Since the court’s consent to use in the proceedings privilege, journalistic or medical person, the mystery concerned, will not be able to appeal (short story gives this right only the prosecutor’s office).
The criticism of the opposition, RPO, the Inspector General and other institutions
novella criticized: the opposition, as well as RPO Adam Bodnar, the Inspector General, National Council of the Judiciary Council. Digitization, Supreme Bar Council, the National Council of Legal Advisers and NGOs. Deputy coordinator of special services Maciej Wasik said that fears are groundless, because this story limits the services, not the freedom of the Internet. He emphasized that the novel introduces a subsequent judicial review of the collection of any data, and destruction of unnecessary data, and Internet data many times seen the use under the PO-PSL coalition.
Government officials stressed that if this story has not entered into force on February 7th., Service – after the entry into force the day before judgment TK, would have no basis for many activities. PO-PSL government is not prepared for the project executing judgment. When in December 2015. PiS deputies brought to the Parliament the right design, the coordinator of special services Mariusz Kaminski explained that if the PO-PSL coalition failed adoption of the amendment, it must be a project parliamentary, because there is not enough time for consultation.
ROP novel appealed to the Constitutional Tribunal. The allegations concern the lack of time limits or disproportionately long duration operational control; limitations of professional secrecy; unlimited download Internet data, telecommunications and postal services; the lack of “real control” of collecting such data and the lack of notification unit that the data were checked or retrieved.
PAP / IAR / agkm
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