Donald Tusk and his entourage from Bodnar and Siemoniak say a lot about the transparency, legality and rule of law of the services supervised by the new team. That’s all in theory, because the practices planned to be introduced in Poland are far from this image. The wPolityce.pl portal has obtained the draft of the “Operational Code” for special services, which shows that the surveillance of society will be much greater and more brutal than before.
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There are several new provisions in the draft code that are scary. One of them is particularly dangerous. This is the so-called “secret search”, ie you actually search the house or residence of a person who is important for the services. Interestingly, the new type of investigation violates constitutional principles and allows physical interference by such a person. These are not remote activities, i.e. eavesdropping and other likely recognized operational activities. What else does a ‘secret quest’ entail? Agents were able to temporarily seize documents, photos and other material for ‘investigation’. During a ‘secret search’ you can also make copies of the contents of your phone and other devices such as laptops, computers and data carriers.
But that’s not the end. The project assumes that the surveillance activities of the services will be equal to the activities strictly defined in the Code of Criminal Procedure! This is evident from the provisions of art. 5 projects.
Operational work may be performed before initiating preparatory procedures, during these procedures and after their completion
– we read in art. 5 § 1.
There is no doubt that such a provision is clearly contrary to the Constitution and the Code of Criminal Procedure. This effectively ends the procedural control over the activities of the secret services and the suspect’s right to participate in the proceedings. On the one hand, the suspect will be able to access the files (which fall under the Code of Criminal Procedure), but will have no idea of the simultaneous activities of the services in the context of their proceedings.
The operational code also assumes impunity for officers in the activities they perform. This is interesting in the context of the conviction of CBA officials in the so-called land scandal.
An officer, soldier or employee who carries out or participates in operational activities planned and approved by a superior, who acts with due care and is unable to predict the consequences of his actions, commits a prohibited act – does not commit a crime – provided that it is reliable and detailed explanation is given.
– we read and art. 63 §2 of the Operational Code.
It is worth adding that a person who cooperates with an officer “if his actions prevent another, more serious crime” also goes unpunished.
Pegasus living forever
What about systems like Pegasus? Of course they will still be used. In art. 10 we read about “operational work measures”. Technical ones include “IT systems” and “computer software”. In turn, operational ‘methods’ presuppose ‘radioelectronic and cybernetic reconnaissance’. The “operational control” itself will include: op “obtaining and recording the contents of correspondence, including correspondence conducted via electronic means of communication.”
Article 26 of the Code also mentions secret access to telecommunications terminal equipment and IT and ICT systems to obtain and record the data contained therein. This is a clear reference to a system like “Pegasus”.
It is recalled that telecommunications operators are obliged to provide data to the payroll administration. This has not changed from previous records.
The end of “professional secrecy” and legal action
Later provisions of the Code raise further doubts and are also contrary to the provisions of the Constitution and the guarantees of civil rights. This concerns the use in criminal proceedings of material that contains information that is secret in connection with the exercise of a profession. But that’s not the end. It is known that the head of a certain service is obliged to inform the person against whom operational control or “secret interference” has been ordered of the fact of their application no later than twelve months after its completion. And this is where an interesting situation begins, because the person under supervision has the right to file a complaint. So what if, as we read in the project, it is submitted to the same court that ordered the review.
The new provisions make a mockery of the rule of law and the alleged plans for greater transparency of the activities of the secret services, as announced by the current government. The same one who has violated the rule of law several times.
WB
Source: wPolityce
Emma Matthew is a political analyst for “Social Bites”. With a keen understanding of the inner workings of government and a passion for politics, she provides insightful and informative coverage of the latest political developments.