Exactly one year ago information about the abuses of surveillance methods by the Prosecutor’s Office in Warsaw and the Internal Security Agency (ABW) in the course of preparatory proceedings against Wojciech Sumliński, Bogdan Rymanowski and Cezary Gmyz shocked the media. After this issue has been revealed, the government declared that a wide legislative change will be introduced concerning the methods of classified surveillance. However until now no such change did take place.
On October 8 2010, Gazeta Wyborcza daily published an article entitled “Journalists Targeted by the Intelligence Agencies” (“Dziennikarze na celowniku służb specjalnych”). This article speaks of the classified preparatory proceeding which is being conducted by the District Prosecutor’s Office in Zielona Góra in reference to charges of abuse of powers by Police, ABW and Central Anticorruption Office (CBA). The article forces to raise the question whether there exist any efficient instruments of control over the operational control and surveillance conducted by police and intelligence services.
Based on the information from the article, ABW, CBA as well as Police regularly carried out surveillance of well known journalists in order to reveal their sources of information. This was done through retrieving information from telephone billings and list of calls to base transceiver station (BTS). Moreover, reveled data shows that the agencies were not collecting these information in order to fulfill functions ascribed to them such as preventing and combating serious crime that threaten vital interest of the state.
What is particularly outraging is the fact that the usage of these measures is not subject to any specific prerequisites such as, for instance, consent of a court. Due to possible dangers caused by such measures and the ease of using them, it should be expected that agencies would take recourse to them only as a last resort. However, the revealed information shows that they were used without appropriate justification by higher interest, but their usage was motivated by an interest of the particular agency. Moreover, it is worth pointing out that both ABW and CBA could have intentionally impede conducting the preparatory proceedings by not expressing any will to cooperate or misleading the prosecutor’s office in clarifying the issue in question.
In relation to the above, the Helsinki Foundations for Human Rights issued two letters to the Prime Minister in which it expressed its concern regarding the information disclosed by the press.
In the first letter of 13 October 2010 the Foundation indicated that it believes that Prime Minister, who is the head of the Committee on Intelligence Agencies and the supervisor having powers towards the heads of the ABW and CBA, should consider requesting them to clarify the issue in question, as well as allowing the access to the documents concerning the preparatory proceedings. As long as the documents remain classified, journalists are in fact unable to realize their constitutional right of access to data concerning them as well as removing information collected against the law.
Clarifying these issues is crucial from the point of view of protecting the democratic society, which is the basis for the free and independent media. Using surveillance methods against journalists prevents them from protecting their sources of information. There is no doubt that this situation violates the freedom of press and journalist’s official secrecy guaranteed by the law.
Furthermore, in the second letter if 13 October 2010 Helsinki Foundation for Human Rights called upon the authorities to introduce complex legislative changes to the provisions regulating surveillance methods used by intelligence agencies. As long as, due to loopholes and abuses of law, the competences of the police and intelligence agencies will remain too broad, Polish law will not correspond to constitutional and international standards and the rights and freedoms of an individual will not be respected.
According to Helsinki Foundation for Human Rights, there are several reasons why legislative changes should be introduced.
First, there is no doubt that there are several loopholes in the Polish legislation that allow the Police and intelligence agencies to carry out surveillance of various people. Revealed abuses of law show that special competences to deal with terrorist threats and organized crimes are used to gain information about political opponents or journalists controlling the authorities. Such actions undermine the basis of democracy, whose main principles are political pluralism and the freedom of expression, including the protection of the sources of information.
Second, the Constitutional Tribunal’s decision of 12 December 2005 (K 32/04) as well as the signaling proceedings of 25 January 2006 (S 2/06) has not been implemented. This decision pointed to the lack of appropriate procedure of informing ex officio a person who was subject to operational activities about surveillance that was carried out. Introducing such a procedure would realize the constitutional rights from article 54 paragraph 4 and could limit the usage of various forms of surveillance.
Third, the considerable technological progress that took place in recent years influences the actions of intelligence agencies. Police and the agencies most probably use methods such as GPS tracking, surveillance with the usage of internet, directional microphones or the so called Trojan horses. At the same time provisions regulating the surveillance methods were introduced a long time ago and do not regulate the ways and limits of how these technical means can be used.
Helsinki Foundation for Human Rights believes that the following issues should be considered by the Government:
1. Review of competences of Police and intelligence agencies concerning the use of surveillance techniques.
Polish government should review all of the competences of Police and intelligence agencies concerning the use of surveillance methods. This should be carried out by an independent expert who would have external and independent perspective on the issue, as well as appropriate experience, legal knowledge and authority.
2. Amendment of the telecommunication law
Helsinki Foundation for Human Rights believes that the government should initiate a legislative change of the telecommunication law of 16 July 2004 as well as the Prime Ministers regulation of 13 September 2005 on the telecommunication entrepreneurs’ obligation concerning national defense, state security and public order. These provisions give police access to telephone billings and the mobile phone relay stations. As the praxis shows, in reality this gives an unlimited possibility to gain information concerning contacts of a gives person as well as their whereabouts.
3. Amendment of the code of criminal proceedings and several specific acts
Helsinki Foundation for Human Rights believes that the draft amendment of the Code of Criminal Proceedings and some other acts (parliamentary print nr 2915), that has been presented to the Parliament, does not provide solutions that would guarantee sufficient supervision over the actions of police and intelligence agencies in the future. Above all, the proposal does not include several of the comments of the Penal Law Codification Committee. Comments of the Helsinki Foundation for Human Rights formulated after a special meeting with experts have been completely ignored. They concerned obliging the agencies to notify more frequently on how often the surveillance techniques are being used. We believe that refusing to include this issue is widely unjustified, especially in the light of the decision of the Supreme Administrative Court of 1 October 2010 (I OSK 1149/10) where the Court stated that the statistical data concerning surveillance does not constitute state secret.
Moreover, based on the guidelines given by the Constitutional Tribunal, Foundation pointed to the need of introducing an obligation to inform a person about the operational control if in the end criminal proceedings were not initiated. Minister of Justice should introduce a ban on the usage of data collected during operational surveillance which was expressed in the decision of the Supreme Court of 26 April 2007 (I KZP 6/07), as well as prohibiting the usage of data including secrets referred to in articles 178-180 of the code of criminal proceeding.
