Definicja legalna tajemnicy państwowej i tajemnicy służbowej w świetle przepisów Konstytucji RP

Abstract

The article deals with the problem of compliance of the legal defi nitions of state secret and off icial secret with a constitutional regulations. The author tries to prove that The Act on protection of classifi ed information of 22 January 1999, which defi nes state secret and off icial secret, gives wider possibilities to keep an information secret than the Constitution of the Republic of Poland. The constitutional regulations do not allow to make a data secret on account of concrete interests and values, like for example defense or international relations, what, from the other side, is possible on the base of legal regulations of The Act on protection of classifi ed information. In this way the author fi nds its unconstitutional. That kind of conclusions has also material consequences in respect to penal-legal protection of classifi ed information. So far that problem has not been discussed in a wider scope. Firstly, it’s necessary to determine if making an information secret on the basis of that elements of the legal defi nitions of state secret and off icial secret which are not pointed in the Constitution, is void or legally eff ective. The polish Penal Code set a criminal responsibility for revealing state secret (art. 265) and off icial secret (art. 266) and that obviously generates the next problem related to the common court of law authority to examine the The Act on protection of classifi ed information regulations, and in consequence also criminal law regulations, and eventually detect that it’s unconstitutional. That problem is the matter in dis- pute, but the author try to persuade a reader that initiating a Constitutional Tribunal proceeding is not obligatory when the common court of law fi nd that kind of information evidently unconstitutional. In that category of cases the court should apply together constitutional and criminal law regulations. Of course if the court state that somebody kept some kind of information secret ignoring constitutional norms it’s not possible to hold anybody liable for revealing that information.