The Polish government is preparing changes to bolster court supervision over the operational control activities of special services, according to a government project.
Increased Judicial Control of Special Services
The government is preparing changes to the operation of special services, including strengthening judicial oversight of operational control. A draft amendment, coordinated by Minister Tomasz Siemoniak, has been submitted for government review.
The proposed changes aim to enhance and supplement existing court competencies in supervising operational control conducted by authorized entities, including the Internal Security Agency, the Central Anti-Corruption Bureau, and the Military Counterintelligence Service, as well as the police, border guard, State Protection Service, National Revenue Administration, and Military Gendarmerie.
Changes to Supervisory Powers
The project proposes removing the Inspector of Internal Control of the Ministry of Interior and Administration’s authority to request operational control and controlled purchases. Some current prosecutorial supervisory powers will be transferred to the courts.
Under the new rules, courts will be required to justify any decision regarding operational control, regardless of whether the materials sufficiently justify its initiation or extension.
Expanded Access to Information
In addition to issuing consent for operational control, the court will have access to the results of this control, even if no evidence is obtained to initiate criminal proceedings. The head of the service or institution, along with the approving prosecutor, will be informed of the control’s results upon completion.
Court Authority to Interrupt and Review
The court will gain the authority to request information about the progress of control it has authorized and to decide at any time to interrupt it, providing justification. The head of the service or institution, or the prosecutor, may appeal such a court decision.
When deciding to interrupt control, the court and prosecutor must consider the grounds outlined in the draft law, including the necessity of applying operational control, the ineffectiveness of other measures, and the purpose, duration, and type of control.
The prosecutor will also have the power to interrupt operational control, but decisions cannot be appealed, mirroring the current restrictions on appealing to the court without prosecutorial consent.
Destruction of Materials
The court will also have access to information regarding the destruction of operational control materials that do not confirm the commission of a crime or are not essential to national security. The head of the service must immediately inform the court and prosecutor of such destruction.
Rationale for Changes
The draft’s authors noted that current standards for supervising special services and operational control date back to the early 1990s, with areas lacking sufficient judicial oversight in a democratic rule of law.
Implementation and Concerns
The law is slated to take effect 30 days after its publication. Radosław Kujawa, State Secretary in the Chancellery of the Prime Minister, was responsible for preparing the project, with collaboration from the Prime Minister’s Office and relevant ministries and agencies.
The government’s Collegium and the Sejm’s committee for special services issued positive opinions on the project. However, the committee raised concerns about the courts’ potential lack of preparedness, both in terms of staffing and organization, to implement the new regulations. Strengthening units dealing with operational control cases within the courts will be necessary.
Currently, the District Courts in Warsaw and the Military District Court in Warsaw decide on authorizing or extending operational control, including approving control initiated urgently.
Operational control is conducted covertly and involves obtaining and recording conversations, images, and data through technical means, including telecommunications networks, correspondence, and data storage devices.
