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The Anti-Terrorism Act is inconsistent with the Constitution, the Charter of Fundamental Rights of the European Union and the Convention for the Protection of Human Rights and Fundamental Freedoms – on 11 July, the Commissioner for Human Rights challenged the act before the Constitutional Tribunal.

The 100-page document submitted by the Commissioner contains arguments presenting the flaws of individual provisions. It shows that the act, despite its noble goal – organising provisions and strengthening security in the country, was written so imprecisely and in such general terms, that the special services have received great and uncontrolled powers, and the people cannot be sure that they will not be prosecuted on this basis. The act does now allow to understand, for example, who and for what reason information can be gathered on, who can be arrested and for what, or when can the Internet be cut off.

The Commissioner points out that the reasons for this included hasty mode of work and failure to include essential observations reported by experts and civil society organisations.

"The proceedings concerning the act were not adequate to the seriousness of its purpose. To guarantee the fundamental value of public safety, should be associated with a wide discussion on directions of change, specific risks and how to respond to them' – states Adam Bodnar.

This is why the Commissioner for Human Rights alerted the President of Poland to review the act before the Constitutional Tribunal before signing it. However, this did not take place and the act has already entered into force. And on July 11, the Commissioner received a reply from the Chancellery of the President, signed by Undersecretary Anna Surówka-Pasek, stating that "due to unquestionable threats of international terrorism, the improvement of Poland's security (...) has become necessary, and for this reason the President of Poland signed the act".

Commissioner for Human Rights: The goals of the act are valid

The Commissioner for Human Rights has repeatedly stressed that the effectiveness of the State not only in reacting, but also in addressing threats is particularly important in the face of globalization of crime. A democratic rule of law cannot ignore the growing importance of new technologies, the scale of their use, in some cases also in order to violate the law.

Therefore, the services must be equipped with appropriate powers, they must have the financial and organisational conditions to effectively fight against infringements.

How to protect security without jeopardising freedom?

However, since the actions of law enforcement and special services, especially those carried out in secret to make it possible to remain in a natural conflict with certain fundamental rights (the right to privacy, freedom of communication, the protection of autonomy, as well as the constitutional guarantee of judicial protection of the rights of the individual), the problem how to regulate it is the subject of the work of lawyers throughout the democratic world.

Therefore, there is a variety of models, including international documents, that may serve as an inspiration in this regard – recalls the Commissioner.

It is not only about the State providing security, but for the slogan of the fight against terrorism not to interfere with human rights and freedoms in a disproportionate and excessive manner. It is then that the public safety measures, in the form of legally permissible activities of law enforcement and special services, in themselves pose a threat to these freedoms.

In the case of the Anti-Terrorism Act, the definition of the very event that we are supposed to be protected against – an "incident of terrorist nature" – provides these threats. The citizens do not know, whether their data will be collected by the services and based on what activity (since it is not known what an "incident..." is), who will have access to it, what happens if the services collect untrue information, and then take action on its basis. The provisions on pre-trial detention and Internet blocking are vague. – Therefore, the provisions of the Anti-Terrorism Act raise serious concerns in many aspects – states the Commissioner for Human Rights Adam Bodnar in his application to the Constitutional Tribunal.

What does the Commissioner's application contain?

• "Incidents of terrorist nature" – what are they and what does the act protect against?

The Commissioner begins the considerations on the constitutionality of the contested provisions with an analysis of a basic concept, i.e. the definition of an "incident of terrorist nature". It has been referred to as a situation, in which there is a suspicion that it emerged as a result of a crime of terrorist nature, referred to in Article 115(2) of the Act of 6 June 1997 – the Penal Code (Journal of Laws No. 88, item 553, as amended) or the threat of such crime.

This term is used primarily to define "counter-terrorism measures", and the act refers to it frequently in its key items.

The problem is that the concept is vague, and – as the CT pointed out – "the legislature, through vague formulation of provisions, may not leave excessive discretion in the practical determination of a personal and material scope of restrictions on constitutional rights and freedoms of the individual to the authorities that implement them" (see judgement of 22 May 2002 in K 6/02 or judgement of 14 June 2000 in P 3/00).

The requirement of clarity indicates the necessity to create provisions that are clear and understandable to their recipients – a man has the right to decide about his conduct on the basis of complete knowledge of the premises of state authorities' actions and the legal consequences that his conduct may entail (see judgement of the Constitutional Tribunal of 14 June 2000 in P 3/00).

Meanwhile, the imprecise definition of an "incident of terrorist nature" allows for very broad interpretation, especially in the case of a "threat of such crime".

During the parliamentary work, it was pointed out that the threat should at least be "legitimate", so as to limit the scope of this provision – the legislature, however, did not introduce such a change. It seems important, especially in the context of "counter-terrorism measures", which include the actions of public authorities intended to prevent incidents of terrorist nature, preparations to seize control over them through planned undertakings, responding to the occurrence of such incidents and the removal of their consequences, including the reproduction of resources used to respond to them.

• This concept is a prerequisite for introducing specific alert states (Article 15 of the Act), and the introduction of the third or fourth state may entail imposing restrictions on the right of association (Article 21 of the Act).

• Who can be entered into the register of the Head of the ABW

The Head of the Internal Security Agency (ABW – Agencja Bezpieczeństwa Wewnętrznego) is required to keep a list of people who – generally speaking – may have had ties to an 'incident of terrorist nature". Therefore, personal data are gathered in the register, and it is run for a very general purpose.

In today's reality of fight against terrorism, the ability to quickly identify persons connected to terrorism is the essence of success. It also enables the exchange of information with the services of third countries, which seems to be fully justified given lifted border controls under the Schengen agreement.

However, to understand whose data is collected by the Head of the ABW, one has to realise that the term "incidents of terrorist nature" is once more used when defining his powers. What is more, the legislature indicates that data collection can be a response to "reasonable suspicion of the possibility of conducting" activities aimed at committing terrorist offences by certain persons, and not "reasonable suspicion of conducting" such activities by certain individuals.

In addition, no state body will be responsible for verifying the accuracy of the determinations made by the Head of the ABW. There is no provision that requires the Head of the ABW to verify the need for further processing of the collected data. The act not only did not introduce any possibility for the entity whose data were entered into the register to learn of this fact, it did not grant any rights to demand the correction or deletion of data that is incorrect, incomplete or collected in violation of the law. It also did not provide for any other method of control – even without the knowledge of the concerned entity.

What is more, the act provides that the Head of the ABW decides by way of order about the scope of information gathered in the register and about the rules of communicating them to other services. This mechanism cannot be reconciled with the Constitution, which indicates that the principles and procedures for collecting and sharing information are determined by statute, and that an order may not constitute a basis for a decision concerning citizens, legal persons and other entities.

• Who are you? A Pole or not?

The challenged provision of Article 9(1) of the Anti-Terrorism Act provides for the possibility of conducting preliminary investigations against people who are not citizens of the Republic of Poland, setting secondary provisions in relation to general mechanisms provided in, among others, the Police Act, and also applying to Polish citizens. Therefore, ordering preliminary investigations against foreigners does not require the consent of any authority external to the Head of the Internal Security Agency.

The Commissioner for Human Rights shares the view that undisclosed information gathering can constitute an effective and necessary measure to combat the mass dangers of modern times, and in particular to combat particularly dangerous terrorist activity. The Commissioner has repeatedly pointed out that such measures can not only be considered acceptable in certain situations and legal systems, but sometimes they may even be downright necessary to ensure a fuller realization of the rights and freedoms of individuals. However, these type of interferences should always be accompanied by adequate protection of the rights and freedoms of individuals, which may potentially be affected.

Therefore, since the legislature decided to deprive certain groups of individuals of the fundamental right to privacy, it is its constitutional duty in a democratic rule of law to ensure a minimum standard of protection, even in the form of an a posteriori judicial review in this regard. The lack of such a solution should be regarded as contrary to the basic principles of the legal system of the Republic of Poland.

Article 10(1) of the Act regulates the conditions justifying the admissibility of biometric data (fingerprint image, facial image or non-invasive collection of biological material in order to determine the DNA profile of a person who is not a citizen of the Republic of Poland).

It is worth remembering that the Anti-Terrorism Act does not introduce these solutions for the first time, as they are – however, more precisely formulated – present in the Border Guard Act and the Internal Security Agency Act. Admittedly, these provisions do not provide the power to collect biological material in order to determine the DNA, but this possibility has been added to the Anti-terrorism Act only at the stage of parliamentary work and therefore it can be seen that Article 10(1) of the act was adopted with a view to withdraw from the requirements related to procedural safeguards for persons whose data are to be collected and who - in the case of the procedure resulting from the Anti-Terrorism Act - are therefore not entitled to any remedies.

In this context, it is worth paying attention to one thing - although the provisions are to apply to "a person who is not a citizen of Poland", due to the fact that they can be used, among others, "when there is doubt as to the identity of the person", then de facto Polish citizens can be subjected to this procedure.

It is also important that this provision not only does not use any statutory standard, which would allow the use of procedural safeguards, but refers to very general and imprecise concepts of "suspicion" or "doubt." This alone – in the light of the already cited statement concerning the requirement of precision in regulations restricting human rights and freedoms – is a violation of the principle of trust in the state and the principle of decent legislation, derived from Article 2 of the Constitution. The use of double imprecise and judgmental concepts (e.g. in the case of Article 10(1)(4) of the act - "suspicion" of a person's ties to a "terrorist incident") justify the conclusion that Article 10(1) of the Anti-Terrorism Act violates Article 2 of the Constitution.

The legislature's need to focus solely on the personal data of people without Polish citizenship is also questionable. In this way, it completely ignores the threat that may arise from the actions of Polish citizens. Therefore, the introduced distinction – which further connects to the broad and vague conditions may be considered arbitrary and unjustified in the light of Article 31(3) in connection with Article 37 of the Constitution. There are no reasons for the right to the protection of personal data or the right to privacy of persons without Polish citizenship to be limited more that the rights of Polish citizens.

• Where can the Head of the ABW look?

Article 11 of the act authorizes the Head of the Internal Security Agency to maintain free access to data and information stored in public registers and records kept by virtually all public entities at the central level which keep any registers or records, as well as records maintained by subordinate and supervised organizational units. He also obtains the power to inspect all video recorders placed in public buildings, near public roads and in other public places.

This also constitutes an extensive interference in the right to privacy of persons left out of the act's scope in terms of information powers. It should be stressed that – according to information obtained from the Ministry of the Interior and Administration by the Commissioner for Human Rights – works on the law regulating the overall use of video monitoring are in progress, but it remains unclear whether and when they will conclude, and what will its effects be. On 24 May 2016, the Commissioner received a reply from the Ministry of the Interior and Administration that the draft assumptions to the draft law on video monitoring has been withdrawn from the agenda of the Government Work Programming team.

It is worth noting that similar provisions exist in the Act on the Police, only that they define the purpose for which the data is collected and how to use them much more precisely.

• Who can be detained?

In the opinion of the Commissioner for Human Rights, the possibility of using detention, provided for in Article 26(2) of the Act, only on the basis of prima facie evidence of committing, attempting or preparing to commit a terrorist offence, is contrary to the fundamental principles of a democratic rule of law. This provision, with the use of very vague terms, provides the basis for a far-reaching interference in the core area of rights and freedoms, particularly in the realm of personal inviolability.

In the opinion of the Commissioner for Human Rights, "prima facie evidence" of committing, attempting or preparing a terrorist crime cannot legitimize such far-reaching interference with individual freedom.

• How can the Internet be blocked today?

Article 38(6) of the act amends the Act on the Internal Security Agency, among others, by adding Article 32c, which provides for locking access – in an "IT system" – to certain "computer data" related to a terrorist incident or "ICT services" designed or used to cause a terrorist incident.

Once more, this provision uses expressions that either do not have a legal definition and, therefore, will cause difficulties in their interpretation (e.g. "computer data"), or provides a reference to the concept of "incident of terrorist nature", which also is not precise.

Therefore, one can imagine that the block will apply both to individual comments, as well as entire social networking sites or electronic editions of newspapers. It also is not clear whether the block is to prevent access only to certain information on a specific website, blocking the entire site or entire web domain, and maybe even on-line applications, since the block applies not only to data, but also to ICT services.

The use of vague, imprecise and judgemental concepts that are in fact used to limit individual rights and freedoms must be recognised – for the same reasons, which were mentioned in the preceding sections of the applications – to be inconsistent with Article 2 of the Constitution.

– Combating terrorism and the proper recognition of terrorist threats is certainly an important task of the state, whose duty is to safeguard the safety of persons remaining within its jurisdiction. Therefore, the legislative initiative in this area should be assessed positively. However, any legal measures used to achieve this objective must be proportionate and interfere in human rights only if it is necessary and to the extent it is necessary. In many instances the provisions of the Anti-Terrorism Act raise serious doubts as to their compatibility with the constitutional standard, as well as the one resulting from the ECHR and the CFR EU – says the Commissioner for Human Rights Adam Bodnar in the application to the Constitutional Tribunal.