The group of MPs from the Social Democratic Alliance [Sojusz Lewicy Demokratycznej, SLD] and the Left and Democrats  [Lewica i Demokraci, LiD) applied to the Constitutional Tribunal (in pursuance of Article 191 para. 1 (1) of the Constitution) to review the constitutionality of the Act on the Central Anti-Corruption Bureau already in 2006, that is during the previous term of the Parliament, and renewed the application in 2007. They challenged the Act in its entirety and alternatively its several provisions on 13 grounds. According to the applicants, the Act excessively encroaches in privacy, violates the principles of data protection and proportionality. Many members of these parties regarded the CBA as a form of “political police” invented by the former government of Jarosław Kaczyński to fight opponents of the Law and Justice Party [Prawo i Sprawiedliwość, PIS].

The Tribunal found that some provision of the Act create legal loopholes that allow tapping or home searches unrelated to any particular investigation. The CBA can collect and process personal data, but there must be a control mechanism over discarded data provided by law. It must enable data verification and removal if they are deemed unnecessary for operations of the Bureau. Because religious or philosophic views are not data, such information must be destroyed by a commission. Further, the functioning of “data transmission pipelines” between the CBA and other public bodies created on the basis of the executive provisions enacted by the former government exceeds the statutory authorization.

Ewa Łętowska, the judge of Polish Constitutional Tribunal presented the dissent opinion. She argued that the whole law is unconstitutional as it does not provide sufficient control over activities of the Central Anti-Corruption Bureau which may result in violation of individual rights and freedoms.

The definition of corruption covers also business practices of private persons not using public funds and as such violates the principle of economic freedom. Due to its broadness and vagueness it is declared illogical and contrary to the rule of law principle. The Tribunal revoked also these provisions which enable the Bureau to collect and process personal data, including sensitive data, without the consent of the data subject, which are “potentially useful” and not directly related to any current proceedings. They are incompatible with the notion of privacy guaranteed in the Constitution, the European Convention of Human Rights and the Convention No. 108 on the automatic processing of personal data. The competence of the Bureau to process personal data gained during inspections of private property indicated in public officials’ declarations and to make agreements with other public bodies to access their databases has been struck down as well.
The Tribunal ruled however that the general concept of the anti-corruption institution is constitutional. The judgment does not change significantly the functioning of the CBA. It calls for amendment of the Act strengthening the privacy and data protection. As to the definition of corruption, the judgment does not affect the Criminal Code, on which  the charges are based (Article 296a on economic corruption goes beyond the public sphere). The provisions declared unconstitutional are valid for the next 12 months.

Anna Śledzińska-Simon