1. Introduction

The use of new technologies in criminal proceedings has undoubtedly been gaining in importance recently. Avoiding facing them in the practice of applying the law is, in fact, significantly hindered. This is the result of their widespread use in society2, but also their prevalence in operational practice of law enforcement agencies, which must adapt their apparatus to contemporary technological challenges and ensure the effectiveness of their activities.

However, the issue of adapting legal solutions to the current problems of the applying the law raises many doubts. It seems that a large part of the legislations of individual countries reacts to the existing problematic issues with some delay and the process of regulating issues related to the use of new technologies in criminal proceedings takes place only after some time of their practical application, in particular with regard to the implementation of relevant procedural rights of parties to the proceedings. In such a state of facts, the courts are often responsible for clarifying the shape of these powers in a way that goes further than in the case of traditional procedural institutions, and thus for the level of ensuring the standards of a fair trial. This process also takes place at the level of district and local courts, however, due to their specific role and nature, it is the constitutional courts that have a particularly strong impact on the identification of the limits of procedural rights, which not only relate to individual cases, but also shape the general content of the rights making up a concept of the fair trial.3

The research question of the study is as follows – do the constitutional courts have a role in shaping the fair trial standards in criminal proceedings with regard to the use of new technologies. The research is based on the European continental system with the particular focus on Polish legal order and Polish Constitutional Tribunal Case Law. Although the author does not undermine its importance, the case law of Polish Supreme Court, administrative, district and local courts were excluded due to the scope of this particular study. To provide for adequate legal frames the study also analyzes the CJEU and ECtHR case law connected with the discussed problems. In the part dedicated to the privilege against self-incrimination author additionally includes the case law of the Supreme Court of the United States to reflect on issues that have not yet met with the sufficient recognition among European courts. In the legal traditions of the US and Commonwealth countries, derived from the common law system, there are no constitutional courts, while problems related to ensuring respect for procedural rights are resolved by supreme courts and lower instance courts.4 The example of the United States and problematic issues settled by the Supreme Court regarding the US Constitution and its amendments, in particular the Fifth, is, however, a perfect example of what challenges will constitutional courts face in the future, what will be presented in the further part of the article.

The study is focused mainly on the surveillance measures used by the law enforcement agencies (LEAs) applying to both content and non-content data and on the pre-trial phase of proceedings. In author’s opinion it is the stage, in which, especially in case of Polish legal system, the right to a fair trial is especially vulnerable to infringement. One of the main hypothesis of the study is that right to a fair trial and right to privacy in the analyzed scope have some common elements and judgments addressing the problem of right to privacy can also affect the fair trial standard. In the existing Polish case law it can be observed that Constitutional Tribunal rarely addresses directly fair trial standards in regard to legislation regulating the use of new technologies during the proceedings. The author however claims, that constitutional courts influence fairness of the proceedings not only by shaping the content of fair trial per se, but also creating fundamental standards for other constitutional rights that ultimately affect the individual procedural rights during the trial.

The article is structured as follows. First of all it addresses the common aspects of the right to a fair trial and right to privacy to provide a point of reference to further analysis. In the next part it discusses the case law referring to problems connected with gathering digital evidence with distinction between non-content and content data. In the part regarding to non-content data the study is focused on data retention due to the fact that it became the particular interest of constitutional courts in the EU and therefore is of much importance to the research. Then, the article presents the emerging problems for the European constitutional courts connected with the privilege against self-incrimination that have not been yet widely addressed among particular countries. Finally, the study provides for general and fundamental conclusions that can contribute to answering the main research question.

2. Fair trial and right to privacy

As a rule, the problems caused by the dissemination of new technologies in the criminal proceedings are most often identified with the right to privacy, and it is the sphere that the judicial decisions of not only constitutional courts, but also, among others, European Court of Human Rights, refer to.5 This is understandable, as new technologies inherently have the potential to be highly intrusive, so the general protection model here has been grounded in the content of the right to privacy. It should be noted, however, that the case law in this area also has a huge impact on the implementation of rights resulting from the right to a fair trial.6 The elements and specific institutions distinguished under both of these rights, i.e. the right to privacy and the right to a fair trial, are to a large extent interrelated and affect the mutual implementation of standards for the protection of constitutional rights.

One such institution is undoubtedly the right to notification. The right to notification, mentioned primarily in the scope of the right to the protection of personal data, is an integral part of the right to active participation in the proceedings, which is an element of the right of defense.7 Without informing the suspect or accused about the activities carried out against him, even if such information is delayed in time, theyde facto loses the possibility of effective defense, taking any action in relation to the measures applied by law enforcement agencies, including questioning their legality and proportionality. The latter is also associated with the right to judicial review, especially of particularly intrusive measures, which appears often in the case law.8 Enabling the suspect the access to judicial control of actions taken against him not only strengthens the protection of their right to privacy, but also largely protects the overall fairness of the proceedings.

It should also be noted that in the case of activities involving the use of digital evidence, due to their nature, the suspect is often completely unaware of the surveillance carried out against him, therefore it is not possible to take any action or legal remedies in the criminal proceedings related to the measures used by law enforcement authorities. The grounds for justifying the lack or delay of information are generally connected with the sake of the proceedings and eliminating the potential obstruction of the trial.9 In this case, at the constitutional level, it is a premise of security and public order, and from the criminal trial perspective, it is an attempt to deliver an effective, just ruling and implement the appropriate criminal response. However, the problem arises as to whether such a far-reaching restriction can be considered proportionate.10

The principle of proportionality is also extremely important to the fairness of the proceedings. It is an element of the European human rights standard, although it is often not directly expressed in legal acts.11 It is considered to be the necessary element of the legal systems based on the rule of law and democratic principles.12 The proportionality test, based on the adequacy, necessity and proportionality stricto sensu became a part of constitutional traditions of particular states as a result of “judicial borrowing”13. Now it is said to be the common judicial standard of European constitutional courts and European Court of Human Rights as well.14 It has frequently been also the subject of Constitutional Tribunal of Poland case law.15

When addressing the impact of new technologies on human rights standards, Constitutional courts, including the Constitutional Tribunal of Poland, often raise the problem of proportionality in the context of restricting the constitutional right to privacy.16 However, at the same time, the existing case law ensures the proportionality of all measures taken against the suspect or accused in the proceedings, thus ensuring that the standards of a fair trial are met.

One of the main rules of a fair trial, which can be found in the case law of constitutional courts, is the principle of equality of the parties, related in particular to the adversarial model of the trial. This principle assumes no clearly dominant procedural position of any of the parties and its implementation undoubtedly contributes to ensuring the right of defense.17 It should be noted, however, that due to the fact that law enforcement agencies have a wide range of resources and the entire state apparatus at their disposal, this principle can never be fully implemented in practice. This is particularly evident in the use of new technologies, where the data acquisition rights are often one-sided.18 Respecting the requirement of proportionality in the application of measures aimed at interfering with the sphere of privacy of the suspect will therefore also contribute to ensuring equality of the parties. It should be pointed out that in view of the tendency to transfer the center of procedural activity to the first stage of proceedings and the possibility of collecting data in a large amount and on a large scale, this protects the suspect from finding themself in a situation in which they will de facto have to prove their innocence and question the standard of presumption of innocence.19 The principle of proportionality, even if invoked in the context of the right to privacy, is therefore of great importance to the fair trial guarantees.

In connection with the above mentioned arguments, it seems that the strict limitation of the sphere of influence of new technologies on respect for human rights only to the right to privacy cannot be perceived as justified. Therefore, the question arises, whether the elements of protection of both indicated rights have many common points, or whether, due to the progressive change in the measures applied by law enforcement agencies, excessive restriction of the suspect’s right to privacy in the trial will translate into the overall fairness of the proceedings.

Both the European Court of Human Rights and the Court of Justice of the European Union20 referred to this issue to some extent. The previous case law of the European Court of Human Rights shows that, when referring to use of new technologies, especially surveillance measures, in principle, the Court does not include in its decisions connection between the violation of the right to privacy through the use of specific measures by law enforcement agencies and the right to a fair trial.21 Despite finding numerous violations of Article 8 of the European Convention on Human Rights22, in terms of the use of new technologies in the proceedings, it often refused to recognize a violation of Art. 6 of the ECHR, despite the fact that the collected evidence was based on the above-mentioned methods.23 However, the Court does not clearly preclude that possibility. In the recent judgments, there appear some indications of a link between excessive or unlawful surveillance measures used as a basis for conviction and Article 6 infringement.24 Nevertheless, at the moment it is difficult to identify an unambiguous line of case law in this respect, and the violation of Article 6 is often combined with other elements and infringed rights as well.

A slightly different position can be found in the recent case law of the Court of Justice of the European Union. The Court, with regard to the problem of i.a. data retention, has indicated that the final evidential use of materials obtained through disproportionate and illegal electronic evidence gathering has a particular impact on the respect of the standard to a fair trial. The Court pointed out, that the need to exclude information and evidence obtained in breach of Union law must be assessed, in particular, in the light of the risk which the admissibility of such information and evidence presents to respect for the adversarial principle and thus the right to a fair trial. Therefore, in the Court’s view, the principle of effectiveness imposes an obligation on the national criminal courts to disregard information and evidence obtained through measures incompatible with EU in the framework of criminal proceedings instituted against persons suspected of committing a crime, if these persons are not able to effectively respond to the information and evidence belonging to an area not examined by the court and which may have a decisive influence on the assessment of the facts. According to CJEU, otherwise the State would admit to some extent the possibility of violating the right to a fair trial by failing to ensure the right to active participation in the trial.25

Taking into account the above mentioned elements, it, therefore, seems that the role in shaping the fair trial standards will have not only judicial decisions addressing the fair trial directly, but to some extent also case law that refer to right to privacy infringements.

3. Data retention

Undoubtedly, a notable influence of constitutional courts on respecting the procedural rights of participants in proceedings can be observed in the context of data retention. The issue of retention is most often identified with the right to privacy and the right to the protection of personal data, in particular.26 The method of using the evidence obtained in this way is, however, not without significance also for the observance of the rules of the fair trial during the criminal proceedings.

Data retention itself is generally defined as an obligation imposed on telecommunications operators (service providers) to collect and store information about connections made within the mobile network and the Internet.27The Directive 2006/24/EC adopted in 200628, imposed an obligation on member States of EU to retain and store particular categories of ‘data by providers of publicly available electronic communications services or of a public communications network within the jurisdiction of the Member State in the process of supplying the communication services concerned’. The act and new national regulations created, however, such controversy in some of the countries, that the issue had to be addressed by constitutional courts.29

In this case, constitutional courts adopted more protective position in relation to the constitutionally guaranteed fundamental rights. In many member States there appeared judgments stating that data retention regulated in such way as in the directive is unconstitutional and irreconcilable with constitutional rights and freedoms guaranteed in particular countries.30 The rendered judgments influenced not only local concepts of procedural rules and fairness, but also general European standards31.

The constitutional courts generally questioned not the retention per se, but procedural guarantees that were lacking in the resolutions of the Directive. First of all, the courts found problematic general lack of precision within the regulation which led to questioning the legal security and even presumption of innocence.32 In many countries’ laws implementing the Directive provisions there were no clear indication of the type of data subjected to the retention and authorities competent to collect it.33 Courts also found that there exist some serious doubts with regard to proportionality.34 The issue of proportionality was connected not only with the scale of data retention but also with no time limits of applying the measure. The other basic concern of the courts was lack of the adequate control of using the retained data in the criminal trial and the retention process as such. For example Polish Constitution Tribunal stated that there is a need for judicial control to ensure procedural fairness and respect for privacy.35 The decision of Constitutional Tribunal of Poland addressing data retention (K 23/11)36 is in fact a perfect example of a case, when despite the fact that the right to privacy was invoked as a point of reference, it was the right to a fair trial that has been affected due to the final decision of the Court. After the judgment in which Court declared the previous regulations incompatible with constitutional right to privacy, Polish legislator introduced in the Act on the Police37 Article 20ca, in which some type of judicial review was introduced. According to the provisions of the Article, competent authorities every six months submit a report to the circuit court covering the number of cases of obtaining telecommunications, postal or internet data in the reporting period, the type of such data and legal classification of offences in relation to which telecommunications, postal or internet data has been requested, or information on obtaining data in order to save human life or health or to support search or rescue activities. In addition, the circuit court may request materials that justify the disclosure of data to the Police. Although the review in its present shape is said to be insufficient and cannot be seen as a proper procedural guarantee compatible with requirements set out by the CJEU38, its introduction definitely affected the right to a fair trial to some extent.

There appeared also some references to the process of treating the evidence gathered by means of data retention as the base for rendering judgments and potential conviction. According to some of the statements, the final indication of the fact if the trial can be considered fair will be whether the evidence base on unlawful data retention will be used in the proceedings.39

The impact of using the evidence collected by means of data retention on the observance of the fair, adversarial trial standards was also noted by the Court of Justice of the European Union in its judgments, as it was already indicated above.40 However, one of the research conducted by Eurojust shows considerable uncertainty related to the future of admitting evidence obtained through retention inconsistent with the conditions imposed by the CJEU and some of the constitutional courts. While in the Member States, during the EU surveys, the evidence was still generally considered admissible for the purposes of the trial, its future remains uncertain. 41 Therefore, it seems that the creation of compliant, coherent rules regarding the regulation of new technologies in criminal proceedings, e.g. on the basis of the already functioning case law of constitutional courts, will contribute not only to ensuring respect for the fairness of the trial, but also to guaranteeing the effectiveness of the trial.

4. Interception of communications content

Data retention is generally based on metadata, excluding the possibility of intercepting the actual content of messages. This matter, however, has been the subject of interest for constitutional courts for quite some time. Jurisprudence mainly focus on wiretapping and phone communications interception. Nevertheless, with the dissemination of Internet use, the role of online surveillance is significantly increasing. This applies not only to mail interception and digital communications surveillance, but also to the use of remote searches.42 In the process of determining the scope of procedural guarantees and, therefore, fair trial, both courts and scholars base on the same principles.43

As a rule, courts consider the covert surveillance measures compatible with state constitutions.44 However, they also set some conditions necessary to consider regulations constitutional and meeting the requirements of the protection of human rights. In the existing jurisprudence there are some common elements of the constitutional tradition regarding approach to measures including surveillance.

First of all, the courts require an examination of whether surveillance has been ordered on the base of precise, objective indications of a crime, not just by general suspicions. The evidence material has to be examined if there exist facts that rationally, in an objective assessment, indicate the probability that some person is involved in a criminal activity and if they can be supported by objective data.45

The courts also indicate, that all powers allowing to covertly collect data must satisfy the principle of proportionality. All forms of surveillance must be supported by weighty legal interests, a threat to which must be sufficiently foreseeable. They may, only under limited conditions, extend also to the third parties. There must be also guaranteed some protection of persons subject to professional confidentiality. Generally, the regulation must fulfill conditions of transparency, individual legal protection and adequate supervisory control.

The problem of digital communications surveillance and remote searches per se is less frequently tackled by the decisions of courts. However, e.g. German Federal Constitutional Court addressed directly forms of surveillance of technology systems. The court stated that as a rule the state has to ensure confidentiality and integrity of information technology systems. Such breach of privacy must be perceived as an exception and must be ‘based on clear indications of a concrete danger to a predominantly important legal interest, a threat to which affects the basis or continued existence of the state or the basis of human existence. The court also indicated that secret infiltration of an information technology system is in principle to be placed under the reservation of a judicial order’. Moreover, due to the highly intrusive nature of the discussed measures, if the state agency is not authorized to obtain information of the contents of Internet communication, acquiring evidence will constitute the encroachment of the Basic Law provisions.46

The courts also referred to the problem of subsequent use of the evidence in the proceedings. This matter is closely related to the fair trial standards, as it ultimately determines, whether the proceedings can be considered fair. E.g. Spanish Constitutional Court rendered a judgment in which it put forward a thesis that evidence obtained, directly or indirectly, in violation of fundamental rights or liberties, will have no effect. It will include also an infringement of right to privacy. Therefore, if the evidence will be used as a basis for final court decision in the criminal proceedings, it will in fact influence the ultimate fairness of the trial.47

The case law of constitutional courts regarding the means of gathering evidence with the use of new technologies in proceedings should be definitely assessed positively. Courts, through their judicial decisions, identify certain common elements that should be implemented in individual regulations adopted by the legislator in order to meet the standard guaranteed in the constitution. The last position expressed by the Polish Constitutional Tribunal in the judgment of June 30, 2021 is all the more controversial.

An application has been submitted to the Constitutional Tribunal of Poland to review the constitutionality of the provisions on surveillance measures contained in the Police Act48 to the extent that they do not provide for judicial review of the order of the abovementioned surveillance, as well as its execution, the maximum duration of these measures and, finally, the right to notify the person to whom it was applied about the conduct of the control after its completion.49 The constitutional standard in this case was to be, first of all, the right to a fair trial and the right to an effective remedy, i.e. Articles 45 and 78 of Polish Constitution50 and the principle of a democratic state governed by the rule of law. However, in the presented case, the Tribunal found that the question referred by the Ombudsman was groundless and that its subject matter exceeded the scope of the Constitutional Tribunal jurisdiction. The Tribunal stated that the legal status covered by the question was in fact a legislative omission, left within the limits of legislative freedom and thus not subject to constitutional control.51

However, this position seems highly unjustified, as the issue of infringing constitutionally guaranteed rights cannot be seen as a legislative omission in the sense adopted by the Constitutional Tribunal. In the light of the previous judgments of the Polish Constitutional Tribunal and other constitutional courts, it seems that this is exactly the particular and significant role of constitutional courts - to check whether the legislator has provided for all constitutionally required procedural guarantees, resulting, i.a. from the right to a fair trial, the right of defense and, as a result, if the regulation in question is compatible with the constitutional provisions.

5. Self – incrimination and lie-detecting technologies – the emerging problems

The most developed and broad scope of judgments connected with the issue of use of the new technologies in criminal proceedings, with regard to fair trial standards, has been appearing in the legal orders of USA and Commonwealth.52 These systems, however, did not include the constitutional courts in their traditions and the role of determining the scope of constitutional provisions is left to district, federal and supreme courts.53 All the issue that were tackled are, nevertheless, the good indication of what is going to be, in the near future, the concern of the constitutional courts. The content of right of defense and fair trial among existing legal systems tend generally to approximate and have similar core.54 As a result, the problems that the common law systems are facing now, will have to be finally approached by continental systems. Therefore, it appears beneficial to present some problematic aspects connected with the use of new technologies that have already appeared in Supreme Court of the United States case law.

One of the interesting issues that were tackled in the case law of Supreme Court of the United States, was the relation of privilege against self-incrimination and the use of digital evidence in the proceedings. The privilege (nemo tenetur) is the element of the right of defense and fair trial, well established in the constitutional traditions of particular countries. ECtHR stated that it is not directly expressed in the Article 6 of the Convention but acknowledged it as a part of fair trial principle.55 As similar matters, concerning the use of new technologies and their impact on the privilege against self-incrimination, begin to appear before European local and district courts56, it appears that it is only a matter of time when the constitutional courts will have to take a stand on this matter. The main problem in this sphere is connected with the question if the officers of law enforcement agencies or the prosecutor can compel the suspect to provide the password, encryption key or unlock their phone using biometrical means and data.57 Supreme Court of the United States examined the scope of the Fifth Amendment provisions and, basing its rulings mainly on the previous decisions concerning the division between real and testimonial evidence. Finally, Court introduced guidelines for the following judgments, differentiating i.a. between biometrical and alpha-numerical safeguards.58 The issue also was analyzed by the courts e.g. of UK, Australia. In the given countries, legislator introduced laws allowing to treat not submitting the passwords and encryption keys as an offence punishable even by imprisonment. The regulations were highly controversial and met with very mixed responses.59

The district courts, as well as doctrine representatives, are not unanimous, however, in their conclusions and some voices appeared that the privilege against self-incrimination should be reformulated for the purpose of adjusting criminal proceedings to new technological challenges.60 As a result, the more impact and meaning will have developing the position on this subject by constitutional courts. It will be interesting to observe, if the courts will share coherent view on the matter or if the scope of the principle in question will differ to the significant extent in particular countries. It seems that there will be an intriguing debate on the concept of real evidence and its meaning in the digital era. Not all of the countries have that clear distinction, as in the constitutional system of the USA, but many visibly draw from it and present similar approach.61 It is necessary in order to enable e.g. acquiring fingerprints, getting access to evidence material of particular type, however nowadays, as the technological progress shifted our perception of the digital sphere, the question appears, if differentiating the extent of the fair trial guarantees, is in this case justified.

The other issue, emerging from the development of new technological accomplishments that is connected with privilege against self-incrimination, is the broadening scope of lie-detecting measures. The problem of measures based on unconscious reactions of the human body as the basis of conviction evidence, e.g. with the use of polygraph was the subject of decisions of constitutional courts in the past. 62 Most constitutional courts of individual states indicated that it is possible to admit evidence from analysis of this type if the accused or the suspect voluntarily submits to them. Currently, however, the technologies used so far have been significantly modified and, in addition to the technologies that study the basic functions of the body, there also appear solutions allowing for mapping the areas of brain activity and determining on this basis to a limited extent both the content of the suspect’s thoughts and the verification of the truthfulness of the statements made.63

The existing case law, including the one of constitutional courts, constitutes a good basis for the emerging technologies. In case of new measures described above and their possible implementation in the course of the criminal proceedings, there will probably be a need to reformulate the existing judgments of the courts, adapt them to new challenges, and possibly refer to new aspects of human rights protection, including the area of fair trial. Until now, the case law has focused to a large extent on a significant margin of error and not sufficient reliability of measures of this type. In view of change in the nature and method of their operation, the question arises what statements will constitutional courts develop, if the methods used by law enforcement agencies and required expert witnesses allow for the determination of certain variables with almost absolute certainty. The question remains, how will constitutional courts define the standard of privilege against self-incrimination in this respect, and to what extent will they agree to award the suspects and defendants with the above-mentioned rights.

6. Conclusions

The progressing technological development definitely has an impact on the conduct of criminal proceedings, in particular on the scope and type of evidence invoked in individual cases. In the era of changes in procedural measures used by law enforcement agencies, it seems that the role of constitutional courts will continue to grow, affecting the protection of the rights and procedural guarantees of suspects and defendants, including ensuring the fairness of the proceedings. As it was indicated above, the new technologies that can potentially make an adverse impact on the right to a fair trial continue to appear.

As it seems, courts in their judgments concerning the use of new technologies in criminal proceedings, to a large extent rely on the already existing decisions of constitutional courts regarding fair trial and specific rights of suspects and defendants. The standards and rights affected by constitutional courts decisions are undoubtedly the right to notification, the right to information, the right to appropriate judicial review and the equality of arms. The significant impact can be also seen in the right of defense – both in terms of active participation of the suspect in the proceedings and privilege against self-incrimination. Moreover, the set of individual rights distinguished by constitutional courts on the basis of the right to privacy and the right to the protection of personal data has a fundamental impact on the fairness of the proceedings, especially considering that the existing regulations on the use of new technologies in criminal proceedings are often not yet finally clarified and they pose a risk of a threat to legal security and certainty. The principle of proportionality, even if invoked in the context of right to privacy (for example in the context of time limits for surveillance measures taken against suspects), will have a significant role in limiting the actions of LEAs and ensuring the adequate protection of fair trial standards.

All the above mentioned factors can be observed in Polish legal system as well. The Constitutional Tribunal of Poland addressed the problems of the use of new technologies in criminal proceedings, especially the surveillance measures, mostly in the context of right to privacy. However, it does not exclude the simultaneous impact on the fair trial principles. On the contrary – the direct influence on the legislation can be noticed.

The case law of constitutional courts influences legislation in shaping the procedures for the use of digital evidence, both in terms of access to content and non-content data, and will most definitely continue to do it. It is also in some way intertwined with the judgments of European courts, in particular the CJEU. Recently, the need for mutual approximation and harmonization of procedures has also been discussed in order to ensure efficient cooperation in criminal matters and to eliminate threats to procedural rights. If this were to happen, the provisions would undoubtedly be based not only on the CJEU case law, but also on the standards developed by the constitutional courts of the Member States.

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Notes

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