Recent changes in criminal procedure, operational monitoring, and the prosecution system
Numerous major changes have entered into force in Poland in recent months in the area of criminal procedure, surveillance of citizens, and how the prosecution system is run.
The amendment to Poland’s Criminal Procedure Code restored the active role of the court during criminal trials and significantly expanded the ability of the police and other law enforcement authorities to obtain information, while a new act governing the prosecution system will have a major impact on persons involved in criminal proceedings or with an interest in the outcome of the case. Below we describe selected changes in these areas.
Changes in the Police Act and acts governing the functioning of other services
The Act of 15 January 2016 Amending the Police Act and Certain Other Acts changed the regulations governing the institution of operational monitoring.
The list of activities constituting operational monitoring was expanded to include obtaining and recording the content of correspondence, including correspondence conducted via electronic communications, as well as obtaining and recording data included in informatic data carriers, end-user telecommunications devices, IT systems and teleinformatic systems.
Notably, a person against whom operational monitoring has been used will not be given access to the materials gathered during the monitoring.
In practical terms, the oversight over interception of telecommunications, postal or Internet data by the police or other law enforcement authorities is illusory. Judicial review is conducted only after the fact, based on a twice-yearly report submitted to the court by the police.
The Ombudsman has sought a ruling from the Constitutional Tribunal that the Police Act, as amended, is inconsistent with the Polish Constitution, the European Convention on Human Rights, and the Charter of Fundamental Rights of the European Union. The allegations concern more specifically the rules for the duration of operational monitoring, the overly broad scope, and the manner in which monitoring is conducted. The Ombudsman has alleged that the regulations violate the right to privacy and the prohibition against obtaining, collecting and sharing information about citizens beyond what is essential in a democratic society governed by the rule of law.
Changes in Criminal Procedure Code
Among other changes, the Act of 11 March 2016 Amending the Criminal Procedure Code and Certain Other Acts restored the active role of the court in criminal proceedings.
The court may once again admit evidence at its own initiative, and submit its own questions to witnesses, whenever it finds a need, not only in exceptional instances justified by the specific circumstances.
The court may also remand the matter to the prosecutor’s office to supplement the investigation or prosecution if the case file reveals material shortcoming in these procedures, particularly to seek additional evidence if it would present significant difficulties for the court to conduct its necessary actions.
These changes knock the court down from the pedestal of an impartial arbiter passively reviewing and assessing the initiative of the parties to the proceeding and watching over its proper conduct, intervening only in exceptional instances where a lack of initiative by the parties could lead to an unjust or incorrect result. The court will once again actively support the taking of evidence, admitting evidence at its own initiative, which in practice often means helping the prosecution present evidence against the accused.
In addition, the rules for admission of evidence in criminal proceedings obtained in violation of procedural regulations or through a prohibited act (erroneously referred to in the media and public debate as the fruit of the poisonous tree) have changed.
Evidence cannot be barred solely because it was obtained in violation of procedural regulations or through an act that was punishable at the time it was committed. However, evidence obtained by a public functionary in connection with performance of official duties as a result of homicide, intentional injury to health, or deprivation of liberty, is inadmissible.
This means that the law now permits evidence to be used in criminal proceedings which was obtained in violation of procedural law or as a result of the great majority of acts punishable by criminal law.
New Prosecution Service Law
The prosecutor’s offices have been significantly reconfigured. The Prosecution Service Law of 28 January 2016 and the implementing provisions of the same date have greatly modified the organisation and operation of the prosecution service.
First and foremost, the functions of Minister of Justice and Prosecutor General have been combined. The General Prosecutor’s Office has been replaced by the National Prosecutor’s Office, and the appellate prosecutor’s offices have been replaced by regional prosecutor’s offices.
The principle of fixed-term appointment of prosecutors heading specific units of the prosecution service has been eliminated. Superior prosecutors have also now been permitted to issue orders to prosecutors who are their subordinates concerning procedural measures to be taken. And an act or omission by a prosecutor made solely in the social interest will no longer be punishable as a disciplinary infraction.
These changes limit the independence of prosecutors and enable deeper interference in the conduct of specific cases than was permissible under previous law. They also enable direct influence on the substance of procedural steps taken by individual prosecutors.
The Ombudsman has sought a ruling from the Constitutional Tribunal on the unconstitutionality of certain aspects of this reform, including the provisions of the Prosecution Service Law described above permitting the Minister of Justice, acting as Prosecutor General, to interfere in the course of individual proceedings, alleging that these provisions violate the principle of citizens’ confidence in the state and the law.
The reform of criminal procedure, operational monitoring and the prosecution service may have a significant impact on how criminal trials are conducted, including rules for taking and admitting evidence.
The apparent purpose of the reform was to increase the effectiveness of prosecutions, reinforce the ability to intervene in specific cases handled by prosecutors, and expand the possibility for law enforcement authorities to obtain evidence.
But this raises the question whether promoting and favouring the interests of the active party in criminal proceedings—the prosecution—has been done at the expense of constitutional principles of equal protection and the rule of law.
Janusz Tomczak, Jakub Znamierowski, Business Crime Practice, Wardyński & Partners