In recent weeks, a production dealing with one of the most popular special agents in the history of pop culture hit cinemas. As is well known, an indispensable element of every action movie super spy are all sorts of devices that facilitate the performance of their tasks – including those used for eavesdropping. The question, then, is how does film reality compare to reality, or more precisely, can authorities also facilitate their work in this way?
The legislator has equipped Polish law enforcement agencies with a less spectacular and more formal way of exercising control and recording conversations, commonly referred to as eavesdropping. In Poland, one can distinguish between so-called procedural eavesdropping (conducted on the basis of Chapter 26 of the Code of Criminal Procedure, discussed below) and extra-procedural eavesdropping (conducted on the basis of special laws, e.g. the Police Act, as a section of the so-called operational control).
Wielki Brat słucha i patrzy – (nie)bezpieczne komunikatory
The first association evoked by the word ‘eavesdropping’ seems to be the control and recording of the content of conversations through the recording of telephone calls. However, in the era of broad access to the Internet, this is not the only way of eavesdropping. Polish law condones law enforcement agencies to also control “other conversations or transmissions of information”.
In practice, this allows for the recording of data transmitted via any device. Thus, the following can be subject to control:
- e-mail correspondence, instant messaging
- where conversations are recorded in writing and by voice (Messenger, Whatsapp, Telegram, iChat),
- faxes, telegraphs, radio communications.
As can be seen, only the imagination and technical capabilities of law enforcement agencies limit the range of user tools that are subject to scrutiny. To protect one’s privacy, business or professional secrets, encrypted instant messaging is often resorted to. It should be remembered, however, that regardless of which country the parent company of the instant messaging service is based in, or regardless of the assurances of the developers regarding security, they do not offer full protection. This is best exemplified by media reports in recent years, in which law enforcement agencies have made numerous arrests thanks to cracking the encryption of applications considered to be secure – such as Enchrochat or Sky ECC.
Podsłuchiwany, podsłuchiwana
In theory, the monitoring and recording of conversations can only be carried out against a designated catalogue of persons. Among the potential “eavesdroppers”, the legislator distinguished between the suspect, the accused, the victim and any other person with whom the accused may have contact or who may be connected to the perpetrator or the threatened crime.
Theory is theory, but in reality eavesdropping can be carried out on almost any person – family members, contractors as well as co-workers can become its ‘victims’. This is because of the vague provision used by the legislator on persons ‘in contact’ or ‘likely to have a relationship’, which allows for broad interpretations.
However, it should be borne in mind that the order order for the inspection and recording of conversations should contain the identification of the person against whom it is carried out, and if the person’s identity cannot be established, it is required at least to be designated as the “disposer of the device”.
Podsłuch nie w każdym przypadku
The monitoring and recording of conversations is only allowed when the conduct or fear of a new offence relates to specific crimes. Among these, in addition to the most serious crimes against life and health, the law lists suspected acts such as dealing in counterfeit money, forging invoices, making false statements, failing to report a crime, or bribery and paid patronage.
The prosecutor’s discretion, on the other hand, is generally not allowed and procedural eavesdropping is possible if the court gives its consent. In exceptional cases, however, the prosecutor may decide on the subject himself, with the proviso that he is not completely unfettered – within 3 days he must request the court to approve his decision.
Significantly from the point of view of the right to defence, the Supreme Court has clearly emphasised that wiretapping is inadmissible in the case of persons acting as defence counsel[1].
While on the subject of time limits, it is worth remembering that wiretapping cannot last indefinitely. As a general rule, it is permissible for a period of up to three months, and in special cases, the court may grant an extension for a further three months – however, this still does not mean that the eavesdropper will find out about the inspection immediately after the expiry of this period.
Gdy organ ścigania nagra za dużo
It is worth mentioning the dangerous power of the public prosecutor in pre-trial proceedings to decide independently on the use of evidence relating to other cases and recorded in the course of the ongoing control. More precisely, if, in the course of the conducted activities, evidence of the commission of a fiscal offence or a criminal offence prosecuted ex officio other than the one on which the wiretapping is conducted or as regards a person other than the one against whom the control is conducted is recorded, the prosecutor himself, without the court’s assessment, decides on the further fate of the disclosed information. Nevertheless, the use of such evidence, based on the prosecutor’s decision, is possible only at the pre-trial stage, while in the proceedings before the court the use of the evidence and its legality is already decided by the panel of judges alone.
In other words, if the prosecutor, in the course of eavesdropping, becomes suspicious of other persons or offences, he decides what to do with this finding. And although this provision introduces discretion rather than obligation as to the implications of the evidence obtained, it is not difficult to see that prosecutors are rather eager to go after information obtained in controversial circumstances.
The question also arises, what about privacy, business secrets and other sensitive data, which do not necessarily remain relevant to the case? Well, recorded information that is unnecessary from the point of view of criminal proceedings is subject to destruction upon court order. The application in this respect shall be submitted by the prosecutor, but it is worth remembering that this is also the right of the person subjected to eavesdropping. Provided, of course, that he has already been served with an order to that effect.
Co jeśli organ prowadzi podsłuch niezgodnie z prawem?
A person subject to a wiretap has the right to complain about its legitimacy[2] and legality[3]. This issue is in fact problematic in view of the fact that postponement of the announcement of the order to conduct control and recording of conversations is possible for an unspecified period of time necessary in the interest of the case, and in pre-trial proceedings no later than its conclusion.
What about practice? As a general rule, materials relating to the inspection and recording of conversations are classified, making it impossible for interested parties to access them. Given the long duration of investigations and enquiries, the eavesdropper may not be aware of the inspection carried out for years, and even when the eavesdropping has long since ended. What is obvious, therefore, is that until the inspection order is disclosed, it is impossible to lodge a complaint – because the eavesdropper simply has no knowledge of the conduct of these activities.
Jaka jest w tym wszystkim rola obrońcy?
The far-reaching powers of law enforcement in the area of wiretapping raise the question of the role of defence counsel during and after the inspection. It should be borne in mind that the “recorded” person is not completely defenceless and is protected by, inter alia, the Constitution, so that eavesdropping, while significantly interfering with the rights of a citizen, cannot be taken out of any norms. It must be characterised by expediency , necessity and proportionality, and failure to comply with the aforementioned features renders it inadmissible.
The role of the defence counsel is therefore to verify the correctness of the obtaining of the evidence and the possibility of its use in the case, including against a suspect or accused person. It is therefore in the interest of such a person to make use of the legal remedies available to him and to put forward arguments to disqualify such evidence.
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