On 5 October 2023, the Supreme Court, sitting in the Extraordinary Review and Public Affairs Chamber, ruled on the complaints against the guidelines of the National Electoral Commission (PKW) for the district electoral commissions on the tasks and procedures for the preparation and conduct of voting in the polling districts established in the country in the elections to the Sejm and the Senate of the Republic of Poland and in the national referendum scheduled for 15 October 2023 (Resolution of the PKW No. 211/2023 of 25 September 2023), lodged by entities entitled to conduct the referendum campaign, referred to in Article 48(1) of the Act of 14 March 2003 on the nationwide referendum (I NSW 70/23 and I NSW 72/23).
The Supreme Court recalled that the right to challenge the PKW resolution on the guidelines is vested in the entity entitled to participate in the referendum campaign, thus reiterating its position expressed in the judgments of 7 September 2023 (I NSW 14/23, I NSW 15/23) and 5 October 2023 (I NSW 69/23).
The Supreme Court emphasised that although the Act on the nationwide referendum fails to independently govern the status of public observers it explicitly refers to the provisions of the Electoral Code (EC) (Article 92 of the Act on the nationwide referendum), which establishes the institution of public observers (Article 103c(1) of the EC). At the same time, there is the lack of logical-linguistic, systemic and axiological rationale to conclude that the legislator deliberately excluded public observers from referendum proceedings. The guarantee of fair and transparent referendum process is equally important as the guarantee of fair and transparent elections to the Sejm and the Senate of the Republic of Poland. The institution of the referendum, alongside elections and the civic legislative initiative, ensures the participation of citizens in public life and serves the implementation of their constitutional rights.
The Supreme Court found that Point 15, sentence 2 of the Annex to Resolution No. 211/2023 of 25 September 2023, under which "The law does not provide for the right to appoint public observers in connection with a nationwide referendum", is not in conformity with the law. Such worded guideline is in direct violation of Article 103c(1) of the EC in conjunction with Article 92(1) of the Act on the nationwide referendum. Furthermore, taking into account the role that organisations whose statutory objectives include concern for democracy, civil rights and the development of civil society play in the conduct of the referendum, it is reasonable to allow them to appoint a person whose role will be the public control of the conduct of the referendum, i.e. a public observer, by means of the adequate application of Article 103c of the EC.
In the case I NSW 70/23, the Supreme Court also upheld the complaint with regard to the demand to repeal the Point 13(3) of the Annex to the aforementioned resolution, pursuant to which "the person of trust may transfer the material first to the Minister of Digital Affairs in the manner provided for in item 2 (i.e. send electronically) and then to the chairman of the committee in the manner provided for in item 1 (transfer on an electronic storage medium)". The Supreme Court pointed out that while the admissible scope and purpose of the processing of personal data by persons of trust (and, respectively, public observers) was specified in Article 42(6c) of the EC, and the guidelines in the scope providing for the possibility of transferring the materials recorded by persons of trust (and, respectively, public observers) to the Minister of Digital Affairs or to the chairman of the district electoral committee are in fact a reiteration of the statutory regulations, nevertheless the order of transfer of the above data determined by the challenged guidelines is not supported by the provisions of the EC.
With regard to the charge concerning Point 11 of the Annex to the aforementioned resolution, concerning the scope in which it does not allow for the recording on personal recording devices by persons of trust and public observers of the register of voters and the activities performed by voters, including the moment of showing an ID, the Supreme Court noted that the protection of natural persons in connection with the processing of personal data is one of the fundamental rights. According to Article 8(1) of the Charter of Fundamental Rights of the European Union and Article 16(1) of the Treaty on the Functioning of the European Union, personal data are subject to special protection under Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation, GDPR; in Polish 'RODO'). However, as explained in the case law of the Court of Justice of the European Union, the processing of personal data in the context of the organisation of elections in a Member State is not excluded from the application of the GDPR, and therefore it is necessary to take into account the GDPR requirements concerning the processing of personal data, which undoubtedly include the first name and surname, PESEL number or address of residence, provided in the electoral register and on the ID cards. Whereas, from the wording of Article 42 of the EC it can only be concluded that the scope of processing may include images of persons visible in the material containing the recorded proceedings of the district electoral commission. The Supreme Court has also pointed out the concerns related to the risk of gaining unauthorised access to data collected on private recording devices of persons of trust and public observers. The Supreme Court, weighing the value of civic monitoring of the correctness of the conduct of the referendum and the consideration of the protection of voters' personal data and personal rights, found that the guidelines do not limit the right under Article 45(5) of the EC to record the activities of the commission by excluding from their scope the activities of voters (in particular the presentation of ID documents), as well as the content of the registry of voters (which includes the personal data of the voters), but serve to guarantee respect for the right to the protection of voters' personal data. Providing persons of trust with the access to the electoral register for the purpose of recording it would constitute a disproportionate interference with the data protection and the right to privacy of those included in the register and, as such, would violate the GDPR.
Referring to the charge concerning Point 49(3) of the Annex to the challenged PKW resolution, pursuant to which "the voter shall be provided with a ballot paper for the referendum", that in fact refers to the challenge to the legal basis of the referendum (which was confirmed at the court session by the representative of the Complainant), the Supreme Court pointed out that the subject of the examination is the complaint against the guidelines of the PKW and not against the resolution of the Sejm. The Supreme Court recalled that, pursuant to Article 125 of the Constitution of the Republic of Poland, the announcement of a referendum is the competence of the Sejm of the Republic of Poland or the President of the Republic of Poland with the consent of the Senate. In a democratic state ruled by law, the core principle is the separation of powers. The organs of judicial power have no competence to interfere with the competences of the legislative or executive power, especially when they are guaranteed by the Constitution. Furthermore, it is not possible to challenge the questions of the referendum in the procedure initiated by the reviewed complaint against the guidelines of the PKW. The Supreme Court emphasised at the same time the important role of community organisations in a democratic society, in particular during referendum and election campaigns, pointing to the fact that a progressive process of statutory increase of participation of community organisations in election procedures is observed for several years.
Moreover, the Supreme Court discontinued the proceedings with regard to the charge concerning the repeal of Point 20 of the Annex to Resolution No. 211/2023 of the PKW of 25 September 2023, in view of the amendment of the wording of this point by the PKW Resolution No. 225/2023 of 2 October 2023, having regard to the fact that the new wording of the guidelines in this respect fully complies with the wording of the complainants' requests.