The Polish Constitutional Tribunal in its judgment of 23 June 2015 case file SK 32/14 ruled on the unconstitutionality of Article 79(1)(3)(b) of the ARNR that provided treble licence fee for culpable infringement. The Tribunal held that this provision violated the right of ownership and the principle of equality under the law, by disproportionately burdening copyright infringer in relation to infringers of other rights.
Archive for: Polish Constitutional Tribunal
Personal data protection, I CSK 190/12
August 29th, 2013, Tomasz RychlickiThe Supreme Court in its judgment of 8 November 2012 case file I CSK 190/12 held that without a doubt, the first name and surname constitute personal data of the individual, therefore, the important question arose, whether they belong to the scope of the individual’s privacy as understood in the provisions of Article 5(2) of the Polish Act of 6 September 2001 on Access to Public Information – API – (in Polish: Ustawa o dostępie do informacji publicznej), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments.
Article 5. 1. The right to public information is subject to limitation to the extent and on the principles defined in the provisions on the protection of confidential information and on the protection of other secrets being statutorily protected.
2. The right to public information is subject to limitation in relation to privacy of a natural person or the secret of an entrepreneur. The limitation does not relate to the information on persons performing public functions, being connected with performing these functions, including the conditions of entrusting and performing these functions and in the event when a natural person or entrepreneur resigns from the right to which he was entitled to.
Previous opinions of the Supreme Court on the relationship between the right to protect of personal data and the right to privacy are not clear. They were formulated mainly from the point of view of the protection of personal interests as defined in Articles 23 and 24 of the Civil Code – CC – (in Polish: Kodeks Cywilny) of 23 April 1964, published in Journal of Laws (Dziennik Ustaw) No. 16, item 93, with subsequent amendments.
Article 23
The personal interests of a human being, in particular to health, dignity, freedom, freedom of conscience, surname or pseudonym, image, secrecy of correspondence, inviolability of home, and scientific, artistic, inventor’s and rationalizing achievements, shall be protected by civil law independent of protection envisaged in other provisions.Article 24
§ 1 The person whose personal rights are threatened by someone else’s action, may require the desist of that action, unless it is not illegal. In the event of the infringement one may also require, the person who committed the violation, to fulfill the actions necessary to remove its effects, in particular, to make a statement of the relevant content and appropriate format. According to the conditions laid down in the Code one may also require monetary compensation or payment of an appropriate amount of money for a social purpose indicated.
§ 2 If as the result of a breach of personal rights one has suffered pecuniary prejudice, the aggrieved person may claim compensation based on general principles.
§ 3 The above shall not prejudice the entitlements provided by other regulations, in particular in copyright law and the patent (invention) law.
The Supreme Court in its judgment of 15 February 2008 case file I CSK 358/07 (published in OSNC 2009, no. 4, item 63) ruled that legal commentators and case law of the Constitutional Court agree that the right to protect of personal data is derived directly from personal rights such as human dignity and the right to privacy, citing judgments of the Polish Constitutional Tribunal of 19 February 2002 case file U 3/01 (published in OTK-A 2002, no. 1, item 3) and of 12 November 2002 case file SK 40/01 (published in OTK-A 2002, no. 6, item 81). Nowadays, the collection and processing of the personal data is technically relatively simple, therefore it is necessary to protect a person against uncontrolled collection and use of his or her personal data, often without the contribution or even awareness of the person concerned. For these reasons, the legislator specifically regulated the issues of data collection, processing, use and protection of personal data in the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), published in Journal of Laws (Dziennik Ustaw) of 29 October 1997, No. 133, item 883, unified text published in Journal of Laws (Dziennik Ustaw) of 6 July 2002, No. 101, item 926, with subsequent amendments. While interpreting its provisions, one cannot ignore the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and its preamble that explicitly states that data-processing systems are designed to serve man, whereas they must, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms, notably the right to privacy. The Supreme Court in its judgment of 28 April 2004 III CK 442/02 (unpublished) stressed that when assessing whether there has been the breach of privacy protected by the law, this concept cannot be absolutized due to the degree of its generality, it requires interpretation, taking into account the specific circumstances of the situation. Events and circumstances that form the personal and family life can be classified as private sphere of life. The special nature of this area of man’s life justify the grant of its strong legal protection. However, this does not mean that any reference to a particular person was information in the field of his or her personal life. The regime of protection of privacy and personal data protection regime are therefore independent. Undoubtedly, when it comes to the relationships and the impact of these regimes, because in certain situations, the actual processing of personal data may result in a violation of personal interests in the form of the right to privacy, or protection of the right to privacy will required the objection to the use of personal data. It is difficult to unequivocally determine whether the disclosure of the first name and the surname of an individual by a local government violates his or her right to privacy. This problem can be resolved only while assessing particular circumstances of each case. In this case, the city was requested to disclose the names of individuals with whom it has entered into a contract of mandate and contract of work. One of these contracts concerned preparation and delivery of a lecture. It was difficult for the Court to accept that anonymization and hiding of the surname of a person giving such a lecture would have any meaning. Other agreements related to use of the electronic system of sociological analysis and organization of the conference. They were entered by specific individuals with a public body, which was the city. These people had to reckon with the fact that their personal data will not remain anonymous. For a person requesting access to public information related contracts entered by a local authority, names of parties to such agreements are often more important than the content, and it is understandable for obvious reasons. It would be difficult in this case to defend the view that the disclosure of names of people in the present context would be deemed as a limitation on the exercise of constitutional freedoms and rights of these persons. It had therefore to be assumed, that the disclosure of the names of persons entering civil contracts with a local authority does not affect the right to privacy of those persons referred to in Article 5(2) of the API.
See also “Polish regulations on personal data protection“, “Polish case law on personal data protection“.
E-access to public information, case II SAB/Wa 335/12
December 20th, 2012, Tomasz RychlickiPolish citizen demanded the publication of his complaint against the cancellation of the proceedings of his action that was filed before the Constitutional Tribunal, on Tribunal’s website. He argued that this is public information and should be widely available. The Tribunal refused. Therefore, he decided to submit a complaint for failure to act to the Voivodeship Administrative Court in Warsaw. Legal counsel representing the Tribunal argued at the hearing that there is no legal basis for publication of such complaint on the Internet, and explained that the complaint has been filed after a final decision to discontinue the proceedings and, therefore, should not at all be processed by.
The Voivodeship Administrative Court in its judgment of 18 December 2012 case file II SAB/Wa 335/12 dismissed the complaint. The Court ruled that public authorities are required to publish information if they are obliged to do so by law. The Court pointed out that there is a failure to act if the authority refuses to disclose information, which is required to make available. According to the Court, the complaint is not such information. In addition, according to the decree of the President of the Constitutional Tribunal on the disclosure of pleadings at www.trybunal.gov.pl website, under the link “cases”, the following materials are available: i) the decision for posting complaints, but it does not apply at the initial stage of deciding on the admission of a complaint or request, ii) an electronic copy of the complaint (with supplementary documents), without attachments after referring the constitutional complaint (application) by the Court to decide on the mertis.
See also “Polish case law on e-access to public information“.
E-access to public information, case I OSK 730/12
July 16th, 2012, Tomasz RychlickiBłażej P. who is serving a sentence of imprisonment, requested the Minister of Justice to disclose paper copy of public information from the online Public Information Bulletin (PIB) that concerned the Ministry of Justice. The Minister answered that it can only disclose information, which was not made available in the Public Information Bulletin. Błażej P. filed a complaint against such decision. He noted that he is serving a prison sentence and thus he does not have access to the PIB. Therefore, the decision of the Minister violates the constitutional right of access to public information. The Voivodeship Administrative Court dismissed the case, and Błażej P. filed a cassation complaint together with the request the Constitutional Tribunal to decide on the constitutionality of the provisions of Article 10 of the Polish Act of 6 September 2001 on Access to Public Information – API – (in Polish: Ustawa o dostępie do informacji publicznej), published in Journal of Laws (Dziennik Ustaw) No. 112, item 1198, with subsequent amendments.
Article 10. 1. Public information, which was not made available in the Public Information Bulletin, is made available on the petition.
2. Public information, which can be immediately made available, is made available in the oral or written form without a written petition.
Błażej P. argued that the fact that the convicted person has to request the prison director on Internet access in order to access public information that is available at the PIB, makes the access dependent on the will of the director, and the provisions of the Punishment Execution Code do not provide for use of the Internet.
The Supreme Administrative Court in its judgment of 21 June 2012 case file I OSK 730/12 dismissed it. However, the Court said that serving a prison sentence does not exclude inmates from access to the Internet or mobile phones, but it also does not mean that it may be unlimited access and to any information. Inamtes may use it, but on the rules established in the prison. They can also obtain public information in a form other than online, as determined by the provisions of the Punishment Execution Code.
See also “Polish case law on e-access to public information“.
Constitutional law, case Pp 1/10
May 21st, 2012, Tomasz RychlickiOn 18 December 2009, the National Rebirth of Poland (NOP), a nationalist political party, requested the District Court in Warsaw to enter changes in the Register of Political Parties (RPP) with regard to address and its members, and to register new additional figurative symbols associated with this party. The Court had doubts, whether applied symbols were consistent with the principles of the Polish Constitution which say that the existence of political parties and other organizations whose programmes are based upon totalitarian methods and the modes of activity of Nazism, fascism and communism, as well as those whose programmes or activities sanction racial or national hatred, the application of violence for the purpose of obtaining power or to influence the State policy, or provide for the secrecy of their own structure or membership, should be prohibited. The District Court requested the Polish Constitutional Tribunal to examine whether goals, rules and activities of the NOP that are resulting from the change of symbols, are in accordance with the Constitution.
The Constitutional Tribunal in its order of 6 April 2011 case file Pp 1/10 with fice dissenting opinions, decided to discontinue the proceedings, and ruled that it cannot decide on the merits of the case, because there was lack of evidence, and the District Court was required to examine if the applied signs contain fascist symbolism. However, the Tribunal emphasized that such circumstances cannot be presumed, because of the constitutional guarantees of freedom of association and freedom of expression and speech.
The District Court was bound by the interpretation, and therefore requested the additional materials, together with the expert opinions on whether applied signs contain clear symbolic that is racist, totalitarian, fascist or Nazi. The linguist and historian experts issued an opinion in which they declared that the symbol of the crowned eagle with a cross, with the lictors’ rods and ax, was first seen in the Ancient Rome, and this symbol does not involve a specific message. The party emphasizes a strong role of state and refers to the Imprerium Romanum. Fasces are only a small part of the whole symbol, so as such it has quite a different meaning. For instance, fasces are included in the modern coat of arms of France and USA. It would be difficult to accuse both states of promoting fascism. The Celtic cross symbolized the sun, but it was also accepted by the Church as one of the cross symbols, and by choosing this symbol, NOP refers to the Slavic, and even Catholic and Polish and National themes. The experts noted that the symbol stylized as a road sign indicates the prohibition of homosexual acts in public places, which is consistent with generally accepted morality. The Court repeated after the experts that it would be too social sensed to look for additional symbolic and meanings. Experts said that the sign is just tasteless and vulgar and violates the principles of etiquette, but it does not promote any prohibited content. The symbol of the Cross and Sword is the signs associated with the Knightly Order of the Cross and the Sword – Polish secret organization of Catholic and moral values, established at the end of the Second Polish Republic and active at the first years of German occupation. Experts decided that all the sign act as self-identification of members of a political party rather than promote illegal content.
The District Court in Warsaw in its order of 25 October 2011 case file VIII Ns Rej Ew Pzm 77/09 did not find any legal obstacles to register all the applied signs. Professor Irena Lipowicz, the Polish Ombudsman, and the District Prosecutor Office in Warsaw both appealed. The Ombudsman argued, inter alia, that the expert opinion was not clear, coherent and complete. The Prosecutor noted that there were procedural issues. Prof. Lipowicz argued that the Polish Act on Political Parties provides that a party is allowed to apply and register only one graphic/figurative element that would serve as the identification symbol for its voters, analogously as consumers of commercial products available on the market. Such a symbol will acquire protection similar to this afforded for personal interests. Granting of such legal protection, which does not serve as an identification of a political party, but is the manifestation of expression on other participants in social life, would lead to blockage of public debate. Such protection would also have a chilling effect on freedom of speech.
The Appellate Court in Warsaw decided that a political party cannot register more than one graphic symbol. The District Court in its order of 17 April 2012 ruled that it cannot enter additional symbols into the Register of Political Parties because NOP has already registered a number of other signs such as the so-called phalanx (the symbol of a hand with sword), and their excess would impede the statutory requirement of the recognition of the political party. Undoubtedly, these judgments met with strong criticism because of the lack of a clear opinion on hate speech. Basing the decision on the argument for the registration of only one symbol was somehow an “escape” by the Courts to decide on the most important principles of a democratic state.
Press law, case SK 42/09
December 16th, 2011, Tomasz RychlickiThe Constitutional Tribunal in its judgment of 14 December 2011 case file SK 42/09 held that criminal sanctions for failure to register a daily newspaper or a periodical, as provided in Article 45 of the Polish Act of 26 January 1984 on Press law – APL – (in Polish: ustawa Prawo prasowe), published in Journal of Laws (Dziennik Ustaw) No. 5, item 24, with subsequent amendments, are unconstitutional.
Anybody who publishes a daily newspaper or a periodical without registration or with registration suspended is subject to a fine penalty or the restriction of liberty.
This judgement indicates that the Polish legislator should consider a separate regulation for a printed press, and other rules for periodicals published, in particular, in the Internet. The Court pointed out not only the issue of criminal sanctions for the publication of press without registration, but also the issue of the obligation to register the press, which is still available in the APL.
See also “Press law, case IV KK 174/07“, “Press law, case II K 367/08” and “Press law, case VI Ka 409/07“.
Criminal law, case III K 76/08
October 28th, 2011, Tomasz RychlickiIn 2007, Marek Witoszek wrote SEO software that allowed him to change the visibility ranking of a website of the Polish president Lech Kaczyński in search engines, when one of the Polish offensive words was typed in. He was prosecuted and charged based on the provisions of the Article 135 § 2 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 88, item 553, with subsequent amendments.
Article 135. § 1. Whoever commits an active assault on the President of the Republic of Poland
shall be subject to the penalty of the deprivation of liberty for a term of between 3 months and 5 years.§ 2. Whoever insults the President of the Republic of Poland in public
shall be subject to the penalty of the deprivation of liberty for up to 3 years.
The trial has been suspended for two years, because the judgment of the Constitutional Tribunal was expected to answer the question, whether one can be punished for insulting the president as an institution, not as a person. The Constitutional Tribunal in its judgment of 6 July 2011 case file P 12/09 held that Article 135 § 2 of the CRC is consistent with Article 54(1) of the Polish Constitution in connection with Article 31(3) of the Constitution and Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950, as amended. Mr Witoszek pleaded guilty and has requested a voluntary submission to punishment.
The District Court in Bielsko-Biała in its judgment of 25 October 2011 case file III K 76/08 sentenced Mr Witoszek for three months of imprisonment, and conditionally suspended the execution of a penalty for three years.
Procedural law, case II GPS 1/10
September 3rd, 2010, Tomasz RychlickiThe Supreme Administrative Court in its order of 28 June 2010 case file II GPS 1/10 held that provisions of Article 272 § 1 of the Act on the Law on proceedings before administrative courts – PBAC – (in Polish: Prawo o postępowaniu przed sądami administracyjnymi) of 30 August 2002, Journal of Laws (Dziennik Ustaw) No 153, item 1270, with later amendments, serve as the basis for resumption of proceedings in administrative courts, whenever the ruling of the Constitutional Tribunal on compliance of the provisions of substantive and procedural with the Constitution, international agreement or act, concerned a legislative act, which was applied or should be applied before the administrative court or public authority in a given case.
Criminal law, case P 10/06
December 13th, 2006, Tomasz RychlickiThe Constitutional Tribunal in its judgment of 30 October 2006 case file P 10/06, examined the preliminary question referred by a Regional Court in Gdańsk concerning the provision of Articles 212 § 1 of the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with later amendments.
Article 212. § 1. Whoever imputes to another person, a group of persons, an institution or organisational unit not having the status of a legal person, such conduct, or characteristics that may discredit them in the face of public opinion or result in a loss of confidence necessary for a given position, occupation or type to activity shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.
§ 2. If the perpetrator commits the act specified in § 1 through the mass media shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.
§ 3. When sentencing for an offence specified in §1 or 2, the court may adjudge a supplementary payment in favour of the injured person or of the Polish Red Cross, or of another social purpose designated by the injured person a supplementary payment (nawiązka).
§ 4. The prosecution of the offence specified in § 1 or 2 shall occur upon a private charge.
The Regional Court and different NGOs claimed that the sufficient protection against defamation may be realized within the relevant provisions of the civil proceedings, in particular, the system of protection of personal rights/interests, provided in the Civil Code. The Regional Court alleged that the penalization of the defamation limits the constitutional freedom of expression as set forth in Articles 14 and 54 of the Polish Constitution in a way which is not necessary in the democratic State and, therefore, it constitutes a violation of the principle of proportionality, guaranteed in the Article 31(3) of the Constitution.
Article 14
The Republic of Poland shall ensure freedom of the press and other means of social communication.Article 31
1. Freedom of the person shall receive legal protection.
2. Everyone shall respect the freedoms and rights of others. No one shall be compelled to do that which is not required by law.
3. Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.Article 54
1. The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.
2. Preventive censorship of the means of social communication and the licensing of the press shall be prohibited. Statutes may require the receipt of a permit for the operation of a radio or television station.
The Constitutional Tribunal did not uphold the aforementioned argumentation and ruled that the challenged provisions of the Criminal Code are in conformity with the constitutional principle of proportionality. The criminal-legal protection of private life and good reputation is necessary in democracy and may not be sufficiently substituted by the civil-legal provisions. Judges Ewa Łętowska, Marek Safjan i Mirosław Wyrzykowski presented dissenting opinions. Those judges focused mainly on the solution adopted in Article 213 § 2 of the CRC.
Article 213. § 1. The offence specified in Article 212 § 1 is not committed, if the allegation not made in public is true.
§ 2. Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed to have not committed the offence specified in Article 212 § 1 or 2; if the allegation regards private or family life the evidence of truth shall only be carried out when it serves to prevent a danger to someone’s life or to prevent demoralisation of a minor.
The Tribunal ruled in favour of the private life and good reputation. Such conclusion is justified in the axiology of Article 30 of the Polish Constitution.
Article 30
The inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities.
The latter argument, namely the strict link between individuals’ privacy and human dignity, leads to the conclusion that the protection of privacy is in the interest of not only a person whose privacy has been violated, but also in the interest of the entire society. Hence, the protection of privacy and good reputation constitutes the public interest that needs to be taken into consideration in construing the system of anti-defamation protection mechanisms. The Tribunal ruled that defamation is a violation of the human dignity. The obligation of public authorities is to respect and protect human dignity which includes the need to ensure protection against infringement also by private entities. The Constitutional Tribunal transposed the aforementioned argumentation into the field of comparison of the criminal liability, which is aimed at repression, and civil liability, which is aimed – in principle – at compensation.
In the Tribunal’s opinion, the constitutional requirements concerning the protection of privacy and good reputation impose on the legislator the duty to create mechanisms which would take into account not only the need to satisfy the victim of defamation (to compensate his or her harm), but also to the need to underline the social condemnation of such activities. The civil liability fulfils only first of these conditions. That is why there is a necessity – the necessity in a democratic State – to encompass the defamation with the scope of criminal law, since where a certain type of behavior is treated by the legislator as a criminal offence, it signifies that such a behavior constitutes a threat to public interest and not only to the rights and freedoms of victims.
These arguments led the Constitutional Tribunal to the conclusion that the challenged provision of the Criminal Code, penalizing the defamation of a person, does not violate the Constitution.
Polish patent attorneys, case K 30/01
December 11th, 2006, Tomasz RychlickiOn 9 July 2001, the Polish Supreme Bar Council (in Polish: Naczelna Rada Adwokacka), requested the Constitutional Tribunal, to declare unconstitutional the provisions of article. 236(1) and (3) of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej), published in Journal of Laws (Dziennik Ustaw) of 2001 No. 49, item 508, consolidated text on 13 June 2003, Journal of Laws (Dziennik Ustaw) No. 119, item 1117, with subsequent amendments.
Article 236
1. Except as provided for in paragraph (2), in proceedings before the Patent Office in matters relating to the filing and processing of applications and maintenance of the protection of inventions, utility models, industrial designs, trademarks, geographical indications and topographies of integrated circuits, only a patent agent may act as a representative of a party to a proceeding.
2. Subject to paragraph (3), a natural person may also be represented by a joint right holder or parents, brothers, sisters, descendants of the party or persons in the relation-by-adoption with the party.
3. In the matters referred to in paragraph (1), any persons not having their domicile or seat in Poland may only act when represented by a patent agent.
The SBC argued Polish advocates are not allowed to act before the PPO based on provisions of article 236(1) and (3) of the IPL, which in consequence violates the principles of equal treatment of all citizens provided in article 32 of the Polish Constitution.
1. All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities.
2. No one shall be discriminated against in political, social or economic life for any reason whatsoever.
The Constitutional Tribunal in its judgment of 21 May 2002 case file K 30/01 published OTK-A 2002/3/32, held that the challenged provisions are constitutional. The request was unfounded because one cannot demand for equal treatment of all citizens, from the perspective of the right to perform given professional activity, based on the principle of equality of citizens before the law. According to settled case law of the Constitutional Tribunal, the principle of equality requires equal treatment of persons that have the same legal and factual situation, and – simultaneously – allows differentiation of the legal status of persons belonging to different groups, provided of course that the separation of these groups is made based on criteria consistent with the constitutional values. In the opinion of the Tribunal, the diversity of legal professions, on the one hand, and patent attorneys, on the other hand, does not violate any constitutional principles. The division of professionals and labour is quite obvious for a developed society. Professional groups at issue in this case include the highly specialized professionals, and their operation is strictly regulated by the law, both when it comes to specialist education and professional background, type of activity and responsibility for the improper performance of duties. The Tribunal ascertained that even within the strictly legal profession there is a clear differentiation, which – certainly – did not justify the claim of infringement of the constitutional principle of equality, for example, by forming different status of advocates and notaries, or advocates and solicitors.
Polish patent attorneys, case SK 43/04
September 15th, 2006, Tomasz RychlickiTadeusz Rejman, a Polish patent attorney, was representing his client before the public prosecutor’s office in case of a trade mark infringement. The public prosecutor’s office discontinued the investigations and decided that Tadeusz Rejman is not entitled to represent a person during criminal proceedings. An advocate representing Tadeusz Rejman filed a complaint to the Constitutional Tribunal challenging the constitutionality of the provisions of Article 88 of the Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 89, item 555, with subsequent amendments. According to Mr Rejman, the challenged provisions infringed on Article 2 and Article 65 of the Polish Consitution.
Article 2.
The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice.Article 65
1. Everyone shall have the freedom to choose and to pursue his occupation and to choose his place of work. Exceptions shall be specified by statute.2. An obligation to work may be imposed only by statute.
3. The permanent employment of children under 16 years of age shall be prohibited. The types and nature of admissible employment shall be specified by statute.
4. A minimum level of remuneration for work, or the manner of setting its levels shall be specified by statute.
5. Public authorities shall pursue policies aiming at full, productive employment by implementing programmes to combat unemployment, including the organization of and support for occupational advice and training, as well as public works and economic intervention.
The unconstitutionality of Article 88 of the CRPC was based on the fact that patent attorneys do not have the legitimacy to act in criminal proceedings as a representative of a party, which in consequence violates the rule of a democratic state and that the exclusion of patent attorneys from cases relating to industrial property protection in criminal proceedings, is restricting their right to act on behalf of their clients in cases where they have the knowledge and preparation on a much higher level than other practitioners. This exclusion is also a violation of their constitutional right to free practice.
The Constitutional Tribunal in its judgment of 27 July 2006 case file SK 43/04, published in Orzecznictwo Trybunału Konstytucyjnego Seria A, 2006, No. 7, item 89, ruled that representation of the sufferer in criminal investigations proceedings conducted by the prosecuting authority does not fall within the scope of the patent attorney profession. These steps can be entrusted only to an advocate or a legal advisor where appropriate.