AGIS PROJECT JAI/2003/AGIS/002
Feasibility Study on the creation of a database on investigations and prosecutions
REPORT FOR POLAND
by Prof. Michael Plachta
Faculty of Law, University of Gdansk
AGIS PROJECT JAI/2003/AGIS/002 – POLAND
Introduction:
The distinction between “investigation” and “prosecution” in the Polish system of
criminal justice is not as clear as opposed to some other countries, particularly those
representing common law. In this country, the division of work between investigation and
prosecution does not automatically translate in the structure of authorities and organs
involved. That means there are no organs in Poland which are competent in investigation
only. The same rule applies to prosecution. As a result, there are investigation authorities
which are competent – in some cases, depending on the gravity and/or nature of an
offence – to bring charges to the court and fulfill the function of the prosecutor
throughout the judicial proceedings. An example of such authorities is the Police. At the
same time, the prosecutors from the Public Prosecutor Office are empowered to conduct
investigation (in addition to their main task of bringing and supporting charges before the
court).
Consequently, the terminology used in the Questionnaire which refers to and makes
distinction between investigation database and prosecution database have to be slightly
modified for the purpose of this report. The “investigation database” is meant here to be
any database created specifically for and kept and used primarily by the law enforcement
authorities in Poland, such as the Police, Border Guard, financial police, etc. Accordingly
the “prosecution database” means the database created for and used by the Public
Prosecutor Office.
One more terminological issue has to be explained before getting to the answers to
the Questionnaire. The whole system of evidence law in Poland is based on a sharp
distinction between data, information and materials collected before the formal opening
(commencement) of the criminal process in a case and evidence collected during the
criminal proceedings and for that purpose. The collection of the former is governed by
various legislative acts having the rank of a statute adopted by the Parliament, such as the
Police Act and the Border Guard Act, or executive orders. This is so-called “operational
activity”. The data, information and materials collected this way are not considered
“evidence” and – with some exceptions – must not be used by the court in its
determination of guilt and sentence. The collection of the latter is governed by the Code
of Criminal Proceedings and its results are full-fledged evidence. The former are more of
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a nature of investigative information, while the latter are typical evidence for the purpose
of criminal proceedings.
1)
Does your country have a database for investigations? Is it central or regional?
Do these databases include exclusively criminal investigations or do they also
include administrative/other investigations? What is their legal basis (statutory
or other)? Please analyse and attach the introducing legal texts as amended (in
English or the original language of publication).
There are a number of various databases available to investigative authorities in
Poland. They are centralised although some are kept at a regional level. They are NOT
compatible with one another.
The most important database is National Center of Criminal Information
(hereinafter: KCIK, stands for “Krajowe Centrum Informacji Kryminalnej”). It is based
on the Law on collecting, processing and transferring of criminal information, adopted on
6 July 2001 (Annex 1). It entered into force as late as 1 January 2003. Creation of the
Center was a major step towards harmonization of the system of collecting investigation
data and introduction of a comprehensive and modern mechanism. The Law provides that
collecting, processing and transferring criminal data is being conducted without prior
notification of the person concerned (Art. 2(2)). In addition to a number of databases kept
within the Center it also includes National Computer System which contains information
for the purposes of the border control, customs and legality of foreigners on the territory
of the Republic of Poland.
The scope of data collected in the Center is very broad (Art. 13). It includes the
following: (a) date and place of an offence; (b) type of an offence and its legal
qualification; (c) call number of the case or proceedings; (d) name of an organ conducting
proceedings and information on how to contact him. Further more the following types of
information are being collected in the Center: (a) persons against whom criminal
proceedings are being conducted (including fiscal offences and “operational activity” –
see Introduction); (b) objects used for the commission of an offence or lost as a result
thereof; (c) firms, associations, foundations and other businesses suspected of having
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been used for the commission of an offence; (d) numbers of bank accounts suspected of
having been used for the commission of an offence or holding proceeds from an offence;
(e) information on all other types of proceedings conducted under a statute by authorities
competent to receive data relevant for the purpose of criminal investigation. Finally,
information on persons against whom criminal proceedings are being conducted (see
infra (a)) include the following personal data: last name, first names, previously used
names, parents’ names (including mother’s maiden name), date and place of birth, sex,
pseudonym, place of residence, identity document (including the type of document, date
of its issuance, its serial number and issuing authority), personal registration number
(PESEL), nationality, tax registration number (NIP).
All the information come from two different sources: authorities which are entitled
to receive data from the Center (for their list, see answer to Q. 3) and authorities which
are obligated to furnish information to the Center (Art. 20). The list of the latter contains
more than twenty organs, including all authorities competent for the registration of
population, vehicles, drivers, buildings, etc., as well as courts in which the National
Judicial Register is located, Fire Departments, Environment Inspection, Stock Exchange
Commission, State Fishing Guard, regional directories of state forests, chairman of the
Main Statistical Office, state Gaming Guard, directors of Prison Guard, and directors of
national parks.
One of the most controversial issues was an organizational one. Specifically, it was
hotly debated both in and outside the Parliament where this new structure should be
placed. Two options were considered: either the Ministry of Interior or the Headquarters
of the Police. After the first attempt to subordinate the Center to the Minister failed (due
to the inconsistency of the executive order setting up the Center with the Constitution)
finally the 2001 Law clarified that the Chief of the Police is in charge of collecting,
processing and transferring of criminal data whereas the new Center (KCIK) is an
organizational structure within the Headquarters of the Police (Art. 5). The Chief of the
Police is responsible for (a) collecting, processing and transferring of criminal data; (b)
keeping and supervising databases, including the National Computer System; (c)
preparing analyses of criminal information; (d) ensuring safety and security of criminal
information which are being collected and processed in the Center; and (e) enforcing
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international cooperation regarding exchange of criminal information, based on
international treaties ratified by Poland (Art. 6).
Another important database, especially useful from a practical point of view, is
National System of Police Information (KSIP – Krajowy System Informacji Policyjnej).
The legislative act which allowed setting up such a system is the Police Law of 6 April
1990 (as amended)(Annex 2). Yet it was the executive order of the Chief of the Police
No. 6 of 16 May 2002 which introduced the organizational framework of this unit and
enabled its operation. The Police Law 1990 gives the Police power to collect, process and
use information, including information on persons suspected of having committed
offences which are prosecuted ex officio, minors violating criminal law, persons with no
established identity or trying to hide their identity, as well as persons being sought (Art.
20). The information may be collected, processed and used without the knowledge and
consent of the persons concerned.
The information include: all personal data as defined in Article 6 of the Personal
Data Protection Act of 29 August 1997 (Annex 3) – except for the DNA code which may
include only non-coding parts of the genome, fingerprints, pictures and description of a
person, distinguishing marks, pseudonyms and information on: place of residence,
education, occupation and place of work, identity documents, modus operandi of a
person, his environment and contact persons, attitude of an offender towards his victims.
The Police may also obtain information contained in the insurance contracts which are
kept by the insurance companies, as well as information protected under the bank secrecy
law. The Police Law imposes one important restriction on the powers in this field:
sensitive data (such as information on racial or ethnic origin, political opinions, religious
beliefs and affiliation, party membership, health, sexual life) concerning a person who
has not been convicted must be deleted immediately after the conviction becomes final.
Some of the information collected for the KSIP are transferred to KCIK.
Acting on the Order of the cabinet of Ministers on the program of statistical research
for the year 2004 of 22 July 2003 (Dz. U. 2003, No. 159, Item 1538) the Chief of the
Police issued an executive order No. 350 on 1 July 2003 on collecting, processing and
elaborating statistical data concerning criminality, suicides and cases of drowning (Annex
4). This order set up the Police Statistical System of Criminality “TEMIDA”. Paragraph 2
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provides that Police collects and process information on: (a) criminal proceedings,
including against minors; (b) offences and criminal violations established on the basis of
preparatory proceedings; (c) offences committed by insane persons and minors below 13;
(d) persons (including minors) suspected of having committed criminal offences; (e)
victims; (f) suicides; and (g) cases of drowning.
The next database contains information on road traffic violations and their
perpetrators. It is based on the Road Traffic Act of 20 June 1997 (Annex 5). Acting on
this statute Minister of Interior and Public Administration issued executive order which
specifies the method of collecting, processing and removing data from the central
catalogue of road traffic violations and violators (Annex 6).
Another group of databases have been set up on the basis of the Foreigners Act of 13
June 2003 (Annex 7). The databases are kept by various authorities, including the Police,
Border Guard, governors and Chief of the Office for Repatriation and Foreigners (Art.
125). Consequently, the contents of theses databases varies (Art. 126). The most
important database is called “POBYT” (residence). It includes the following information:
name(s), maiden name, parents’ names, date and place of birth, sex, nationality, place of
residence (Art. 128). Particularly useful is a database “DAKU”, compatible with the
system “EURODAC”, which contains all information concerning fingerprints of
foreigners, collected on the basis of Article 14(2) and 126(2) of the Foreigners Act 2003.
Yet another database is kept by the Border Guard on the basis of the Border Guard
Act of 12 October 1999 (Annex 8). One of the statutory tasks of that organ is to collect
and process information concerning the protection of national borders and he movement
of persons and goods across them. Accordingly, the Border Guard has authority to take,
collect and use fingerprints, pictures and personal data, including information on ethnic
origin, religion beliefs and health of all persons suspected of having committed offences
which are prosecuted ex officio, persons with no established identity or trying to hide
their identity, without knowledge and consent of the persons concerned (Art. 10a(2)). The
Border Guard may also obtain and process information from other public authorities,
including personal data. Administrators of the respective databases are under legal duty to
provide all the required information free of charge (Art. 10a(6)).
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A separate database is kept by the Ministry of Justice and is called National Criminal
Register (KRK – Krajowy Rejestr Karny). It is based on the National Criminal Register
Act of 24 May 2000 (Annex 9). Information collected and processed in this database
concern the following persons: (a) finally convicted for criminal offences, including
fiscal offences; (b) against whom criminal proceedings have been conditionally
discontinued; (c) against whom charges have been dismissed on the basis of amnesty act;
(d) finally convicted by courts of foreign countries where the sanction imposed is being
enforced in Poland; (e) on whom security measures have been imposed on account of
criminal offences or fiscal offences; (f) minors; (g) finally convicted for minor violations
where arrest have been imposed; (h) for whom arrest warrant has been issued; (i)
provisionally detained; (j) minors detained in special shelters.
Finally, a separate database has been set up on the basis of the anti moneylaundering law of 16 November 2000 (Annex 10). This statute created a special organ,
the General Inspector of Financial Information, who is responsible for collecting,
processing and transferring information on financial transactions defined in Art. 8. Other
provisions of this Act contain detailed regulation of the way the information are being
provided to the Inspector, the list of persons, organs and entities which are obliged to
send the information and which are entitled to obtain information from the Inspector, as
well as the contents of the notifications and the records contained in the database (Art. 11
– 15b).
2)
Is there a database for prosecutions in your country? Is it central or regional?
Do these databases include exclusively criminal prosecutions? What is their
legal basis (statutory or other)? Please analyse and attach the introducing legal
texts as amended (in English or the original language of publication).
In practical terms, in Poland, there is no database for prosecutions which would be
equivalent to the database presented and described above (databases for investigations).
That means the public prosecution authorities do not collect and process data on their
own. Instead, Polish public prosecutors use information from other databases, such as the
justice database (KRK) and the police database (most notably KCIK) to which they have
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access. Worse still is that the vast majority of public prosecutors offices do not have
special equipment required for communication with the police databases (especially
KCIK). Therefore, data cannot be transferred directly from their offices to KCIK and
back. As a result, the public prosecutors are forced to request the police forces for
assistance. Consequently, data are being transferred through the police equipment.
The Prosecutor General has undertaken to improve the situations by creating a
separate database for prosecutions. On 27 June 2003, the Minister of Justice issued an
Order on the organization and scope of activities of a secretariat in the public prosecutor
offices (Annex 13). Following this step The prosecutor General issued two executive
orders concerning organizational and technical matters which have to be resolved in order
to implement the new system called Computer System for the Public Prosecutors
Authorities (SIP – System Informatyczny Prokuratury). However, these executive orders
are confidential and they cannot be attached to this Report. The implementation of SIP is
in a very early stage and its success is conditioned on the availability of financial
resources requested from the PHARE program for that purpose. As of today, SIP is more
an idea than a real being.
Part VI of the Minister of Justice Order contains the rules and conditions of
processing of data on criminal proceedings carried out by the public prosecutors.
Paragraph 137(1) provides that SIP may be implemented in the public prosecutors offices
to collect information for analytical and statistical purposes. The implementation of SIP is
ordered by the Prosecutor General, although in exceptional cases, this may be
accomplished on an order of a District Prosecutor if the following conditions are fulfilled:
(a) data are introduced to the system through the computers linked to the computer
network; (b) both server and network meet requirements necessary for the safety of data;
(c) public prosecutor office hires at least one computer specialist who will serve as an
administrator of the computer system; (d) the users of the system have been trained in all
aspects of SIP. The implementation of SIP may be limited to selected offices and/or
specific types of data. Moreover, the Prosecutor General may decide to carry a test of the
new system in selected offices (para. 141).
Six months after SIP has been implemented the competent District Public Prosecutor
submits a report to the Prosecutor General in which he/she includes evaluation of the
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functioning of the system and his/her comments concerning deadlines for the introduction
of data to the system, enforcing safety regulations and effectiveness of the new
organization of work (para. 138). Prosecutors General send a reply to the report. Detailed
rules governing the implementation of SIP, the new organization of work and safety
regulations are contained in the executive orders of the Prosecutor General (para. 139).
3)
Which national, EU or international authorities have access to the databases? If
such databases do not exist, who has access to information on investigations and
prosecutions?
The following Polish authorities are entitled to receive information from KCIK:
public prosecutor, Police, Border Guard, customs offices, tax offices, fiscal control
organs, fiscal intelligence officers, Government Protection Unit, Military Police, financial
information organs, General Inspector of Financial Information, organs of public
administration in charge of foreigners and repatriation (Art. 19 of the KCIK Act).
Furthermore, the Chief of KCIK may provide information to other authorities if he
considers that the information is necessary for the purpose of proceedings conducted on
the bases of other statutes, or criminal proceedings, by these authorities (Art. 28).
However, the Chief must not provide information if it could reveal the identity of the
protected source of information (e.g. police agent, informant)(Art. 30). Additionally, the
provider of the information to the KCIK may make a reservation that the specific
information may not be revealed without his consent (Art. 31). If there are grounds to
believe that the inquiry and request for information from the KCIK has been made for
other purposes than detection and prosecution of offenders and prevention and
suppression of crime the Chief withholds the information to be provided and notifies the
organ supervising the entity which directed the inquiry and demands explanations (Art.
32).
The KCIK Act contains also a separate chapter on international cooperation. Article
39 provides that the Chief may, acting for the purpose of detecting and prosecuting of
offenders and preventing and suppressing of crime, transfer criminal information to
“foreign subjects”. However, before transferring the requested information to the “foreign
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subject”, the Chief must first obtain the consent of the entity which furnished the
information to the KCIK. On the other hand, if the duty to transfer criminal information is
provided in the international treaty ratified by Poland, the consent of the entity supplying
information is not required. Transfer of criminal information abroad may take place only
if the requesting state ensures the protection of the information and the level of that
protection is not lower than that existing on the territory of Poland (Art. 40). In
exceptional cases, the transfer of criminal information to a foreign country which does
not give such a guarantee is possible after an opinion of the Minister of Foreign Affairs
and the organ of the protection of the state has been obtained. The information contained
in one of the databases, that is, the National Computer System, may by transferred abroad
if the international treaty ratified by Poland so provides (Art. 40a). The KCIK Act defines
“foreign subjects” as foreign and international organs, institutions and organizational
entities which are competent for detection and prosecution of offenders and prevention
and suppression of crime, as well as exchange of criminal information (Art. 4(2)).
KSIP - § 15 of the Chief of Police Order No. 6/2002 provides that the only organs
and entities which have access to the information contained in this database are police
officers.
KRK – the information contained in this database may be provided to the following
persons and authorities: President of the republic of Poland, Speaker of Sejm (the lower
house of the Parliament) – only with respect to the member of that chamber, Speaker of
Senat (the upper house of the Parliament) – only with respect to the member of that
chamber, courts – for the purpose of specific cases before them, Constitutional Tribunal,
public prosecutors, police officers and other law enforcement authorities for the purpose
of criminal proceedings they conduct in specific cases, Internal Security Agency and
Military Intelligence Services, fiscal intelligence agency, authorities involved in the
enforcement of criminal judgments and sentences imposed in fiscal cases, organs of
public administration, employers – to the extent necessary to establish the criminal record
of the potential employee and his/her ability o hold a specific professional position (Art.
6). Moreover, the information may be provided to authorities of foreign states if the
international treaty ratified by Poland so provides, or in the absence of such a treaty – on
condition of reciprocity. Finally, everybody has right to obtain information from the KRK
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whether his/her data are included in the database. If the data exist the contents of the
relevant records are to be released to that person (Art. 7).
The information from the road traffic violations database may be provided to the
following authorities: police, courts, public prosecutors, governors, city police, military
police, Internal Security Agency, Intelligence Agency, Border Guard, Road Traffic
Inspection, other institutions on the basis of other statutes.
INTERPOL has access to the databases maintained by the Polish police forces. The
transfer is executed through the Office of International Cooperation within the
Headquarters of the Police.
4)
At which procedural stage are data introduced to the database (for example, at
police/law enforcement investigation, launch of formal prosecution, or trial)?
KCIK: a distinction has to be made between two categories of entities: entities which
are entitled to receive information from the database (for their list, see answer to Q. 3)
and entities which have a legal duty to submit information to the system (for their list, see
answer to Q. 1). What they both have in common is that they are the source of
information for the KCIK. However, the entities of the first group transfer information to
the Chief of the KCIK as soon as they receive them (Art. 21). On the other hand, the
entities of the second group do not transfer criminal information to the Chief, or they
limit the scope of information transferred if the transfer might reveal the identity of the
protected source (e.g. police informant)(Art. 24). They should transfer the relevant
information as soon as the obstacle cease to exist. There is one exception to the duty
imposed on the entitled entities: information on other proceedings or other types of
activities conducted under a statute by authorities competent to receive data relevant for
the purpose of criminal investigation (Art. 13(1)(5)(e)) are to be transferred only on
request.
KSIP – data are being introduced to the database on a daily basis, based on the forms
of criminal registration. This should be done immediately after an event triggering such a
duty has taken place. Some delay that can be observed in practice is caused by the
workload which cannot be handled timely by the staff. It is noteworthy that the data are
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being introduced to the system by a small number of police staff and not by the police
officers conducting investigation – due to the insufficient amount of the necessary
technical equipment.
TEMIDA – designated police officers send the statistical forms at least once a week.
The monthly form must be sent no later than the first working day of the next month –
unless the District Chief of Police specifies an earlier deadline.
Road traffic violations database – data may be introduced in two different ways:
either as temporary records or final records. Temporary records are allowed where no
final decision or judgment of the court has been handed down if after the violation has
been detected the relevant (criminal) proceedings have been commenced or a request has
been sent to the court (§ 4(2) of the Order 2002, Annex 6). This provision applies mutatis
mutandis to a person under 17. The final record is being introduced to the database if the
information contained therein have been determined in a final judgment of a court (§ 4(2)
of the Order 2002). Temporary record becomes final when the formal requirements have
been fulfilled.
5)
At which procedural stage are data erased from the databases?
General observation: the representatives of the law enforcement authorities,
especially police, tend to keep any information introduced to their investigation databases
forever. Their common argument: you never know when and under which circumstances
this or that piece of information may become valuable and help uncover an offence or its
perpetrator. They oppose the removal of any data collected in the database.
KCIK – criminal information are removed from this database if: (a) their collection
is not allowed under the law; (b) the introduced information turned out to be false; (c)
specified time has elapsed since the moment when the data have been introduced (Art. 27
of the KCIK Act). Generally, Article 14(1) provides that all data are kept in the system
for 15 years. A shorter, 5-year period, has been foreseen for the following three
categories of data: (a) objects used for the commission of an offence or lost as a result
thereof; (b) firms, associations, foundations and other businesses suspected of having
been used for the commission of an offence; (c) numbers of bank accounts suspected of
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having been used for the commission of an offence or holding proceeds from an offence
(Art. 14(2)). However, in exceptional circumstances, the Chief of KCIK may extend that
shorter period to 15 years.
KSIP – all information introduced to this system are being periodically verified to
determine their usefulness for the performance of statutory tasks by the police forces.
Personal data must be verified at least every 10 years since they have been introduced.
Data may be removed from the system by the organizational entity which introduced
them or which conduct the investigation or criminal proceedings. Detailed provisions on
verification and removal of data are contained in separate executive orders, specific for
each database. For example, graphic files with fingerprints are removed when the person
concerned is 80 years old. There is a possibility for a person concerned to submit a
request to remove data; the request will be granted if the data are useless for the police.
KRK – personal data introduced to the system must not be removed unless the KRK
Act provides otherwise (Art. 5). However, there are several instances in which data are
removed from the database; for example, the information on the person provisionally
detained are removed when the detention order has been revoked. The same rule applies
to the person for whom an arrest warrant has been issued.
Road traffic violations database – temporary records are removed from the database
in the following situations: (a) where it was established that there are legal obstacles to
open or continue the criminal proceedings; (b) where the person concerned was acquitted;
(c) after one year since the traffic violation. Final records are removed from the database
when the Criminal Code provides for the mandatory removal of the record.
6)
What is the purpose of the databases as described in their founding
instruments? What is their use in practice?
Usually the legislative acts setting up the databases describe the purpose of the
information which are to be collected and processed as detection and prosecution of
offenders and prevention and suppression of crime (e.g. KSIP) or simply prevention and
suppression of crime (e.g. KCIK, Art. 2). The Police Act allows the police forces to
collect and process information in their databases for the purpose of “detection and
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identification” (Art. 20(2)) and “prevention and detection of crime and identification of
persons” (Art. 20(15)). Similar rules apply to the Border Guard (Art. 10a of the Border
Guard Act) – except their competence is limited to the statutory activities of that force,
described as the protection of state borders and control of movement of persons and
goods across them (Art. 1(1)(9)).
Representatives of the Polish Police praise the databases for their very high degree of
usefulness in practical terms. They agree that without these databases investigation would
be simply impossible.
7)
Is there collaboration with foreign authorities for the acquisition of data on
investigations and prosecutions (please refer to Europol/Eurojust)? Which
authorities have access to this data?
The KCIK Act contains a separate chapter on international cooperation. However, its
provisions deal almost exclusively with the transfer of information abroad. They do not
refer to opposite situation – except for one provision: Article 40a(2) provides that data
received from foreign authorities may be introduced to the National Computer System.
This provision has to be read in conjunction with the foregoing paragraph which refer to
Article 37a whose scope of application is limited to the following two categories:
foreigners: (a) sought for the purpose of extradition; (b) sought for the purpose of the
transfer of sentenced persons; (c) lost or protected in connection with the criminal
proceedings; and objects: (a) stolen or lost vehicles, boats and yachts; (b) stolen or lost
arms, ammunition and explosives; (c) stolen or lost identity documents and form for their
issuance; (d) banknotes. Based on an interpretative rule “inclusio unus est exclusio
alterus” (which is rarely used in Poland) a conclusion could be drawn that the KCIK Act
does not allow acquisition of foreign data other than those mentioned in its Art. 37a.
Usually, the founding legislative instruments either do not address the question of
the acquisition of data from foreign authorities (e.g. the Police Act, KSIP) or they do not
elaborate on this. For example, the anti-money-laundering Act 2000 vaguely provides
that one of the tasks of the General Inspector of Financial Information is the cooperation
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with foreign authorities competent in the prevention of money laundering and financing
of terrorism (Art. 4(7)).
Minister of Internal Affairs of the Republic of Poland and the Director of Europol
signed the Agreement between the Republic of Poland and the European Police Office on Cooperation in Combating Crime” on 3 October 2001. One of the purposes of this agreement is the
exchange of both strategic and operational information (Art. 2) whereas the term
“information” has been defined for the purpose of this treaty as both “ personal and nonpersonal data”. The Agreement provides that the exchange of information as specified in
this agreement will in principle take place between Europol and the division for the cooperation with Europol. The Republic of Poland shall ensure that the division for the cooperation with Europol is available around the clock and that there is a direct link
between the division for the co-operation with Europol and the competent authorities as
mentioned in Article 6 (1) including the national bodies responsible for international
police co-operation (Art. 7(2)). Europol shall only supply information to the Republic of
Poland which was collected, stored and transmitted in accordance with the relevant
provisions of the Convention and its implementing regulations (Art. 7(4)).
Article 9 contains detailed rules, requirements and conditions governing the transfer
of personal data from Europol to the Polish authorities. It provides that where personal
data are transmitted at the request of the Republic of Poland, the personal data may only
be used for the purposes following the request. Where personal data are transmitted
without a specific request, at the moment of transmission of information or before, the
purpose for which the data were transmitted shall be indicated, and any restriction on its
use, deletion or destruction, including possible access restrictions in general or specific
terms. Where the need for such restrictions becomes apparent after the supply, Europol
will inform the Republic of Poland of such restrictions at a later stage.
8)
What provision is made in your national laws for data sharing between public
bodies? What are the relevant restrictions?
For reply to this question see answer to Q. 3.
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9)
Are there national general principles of law and privacy laws which prohibit
either the creation of national databases on investigations and prosecutions or
the use of such data? Please describe and attach these laws.
Below is a combined answer to both Q. 9 and Q. 10 for they are inter-related.
The Constitution of the Republic of Poland contains the rules of protection of the
personal data (Art. 51)(Annex 11):
1.
No one may be obliged, except on the basis of statute, to disclose information
concerning his person.
2.
Public authorities shall not acquire, collect or make accessible information on
citizens other than that which is necessary in a democratic state ruled by law.
3.
Everyone shall have a right of access to official documents and data collections
concerning himself. Limitations upon such rights may be established by statute.
4.
Everyone shall have the right to demand the correction or deletion of untrue or
incomplete information, or information acquired by means contrary to statute.
5.
Principles and procedures for collection of and access to information shall be
specified by statute.
The Personal Data Protection Act, which was adopted by the Polish Parliament on
29 August 1997 contains general provisions regarding any operation on personal data that
involve collecting, recording, analysing, amending, transferring and removing of those
data (Annex 3). The Act confirms that everyone has the right to have his/her personal
data protected. The Act goes further in saying that processing of personal data is allowed
on the basis of public interest, private interest of the person concerned or the interest of
third persons, in a scope and manner specified in the statute (Art. 1). Although the Act
contains very rigid rules concerning processing of personal data, their protection and
access to the databases it declares primacy of international law over domestic legislation.
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Article 4 stipulates that provisions of the Act are not applicable if an international treaty,
to which Poland is a party, provides otherwise. The Act is meant to be a general law
governing processing of personal data. Therefore, according to the rule “lex specialis
derogat legi generali”, if other statutes afford better (“farther reaching”) protection of
personal data in this field their provisions should apply (Art. 5). “Personal data” are
defined in the broadest terms, as any information concerning identified or potentially
identifiable physical person (Art. 6(1)).
Another important piece of legislation is the Protection of Secret Information Act of
22 January 1999 (Annex 13). This statute contains detailed rules which govern the
following matters: (a) organization of the protection of secret information; (b)
classification of secret information and differentiation in the level of protection
depending on the outcome of that process; (c) access to secret information; (d) checking
procedure in order to determine whether a specific person should be allowed to have
access to specific types of data; (e) training in the protection of secret information; (f)
supervision of enforcing of the rules contained in the Act; (g) protection of secret
information in the telecommunications systems.
10) Is there an exemption to these laws, for example on the basis of the general
“public interest” to combat crime? Could such an exemption supersede national
privacy laws?
For reply to this question see answer to Q. 9.
11) In view of measure 12 of the mutual recognition programme (OJ C 12,
15.1.2001, p. 10), would linking national databases be an effective weapon
against transnational crime or would an EU database on investigations and
prosecutions from all EU Member States be preferable? What added value for
your national authorities do you see in the setting up of a EU judicial database
as foreseen in Eurojust and, if there are any, what would be the current legal
difficulties to be upheld in your country for the connection to such a data bank?
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Both representatives of the Polish Police are unanimous in their opinion that a
separate UE database on investigations and prosecutions would be superfluous. They
point put differences in technology of collecting and processing data, technical equipment
used for this purpose and deep difference in the scope of information included in national
systems as the main obstacles on the way towards such e unified database. Moreover such
a huge system may be difficult to manage. At the same time, they are skeptical about the
possibility and feasibility of successful harmonization of national systems. Creation of
the UE central database for these purposes would not eliminate national databases which
would have to be kept and maintained in each member state anyway. They cannot
imagine any (national) police force that would easily (or at all) give up its own (valuable,
as they see it) databases and the information contained therein. From their point of view
central UE database would lead to duplication of work and efforts put in maintaining of a
database.
Seen from that angle it seems more advisable to connect all national database and
create a network rather than to establish a new entity. Obviously, the rules governing
such a database would have to define the persons and authorities entitled to have access
to it and specify conditions and requirements. One may also consider a system in which
there is a central database which, however, do not replace national databases. All
information would be transferred from national databases to the central database from
which the data would be re-distributed back to national databases. It is the national
authorities which should be responsible for introducing and up-dating information.
12) Could the EU establish a database for investigations and prosecutions that
includes relevant data on EU citizens, supervised by a judicial/quasi judicial
authority be acceptable to your national legal orders? What problems, if any,
would you foresee and how could they be resolved?
The answer is “no” and “yes”. The representatives of Polish police reject the EU
central database for investigation, for it would have to contain secret or confidential
information and other extremely sensitive data which each national police force protects
and keeps for itself. They would be unwilling to reveal such information due the fear that
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they might be compromised and the life of their sources (informants, agents, etc.) put in
danger. At the same time, they and the public prosecutor are convinced that the EU
database for prosecution would be very useful and should be established. Judicial
supervision of such a database is welcome. Poland would be in a position to accept such a
prosecution database more easily: KCIK has been created for the purpose, among other
things, of implementing the EU measures in this field and preparing Polish law
enforcement authorities for closer cooperation with other EU partners.
13) Could the EU database supply data to be accepted and used as indirect
information or evidence before your national courts, or would your national
laws limit its use to the support of investigations and prosecutions via the
provision of soft intelligence?
Both the public prosecutor and police officers interviewed were of the opinion that
the information obtained from the future EU database could not be used directly before
Polish courts as evidence. Such data might only suggest or indicate possible sources from
which evidence could be obtained through procedural methods (as opposed to
“operational”). It seems that this opinion is unfounded as one-sided and going too far.
Admittedly, since the court is unable to control the way and method used to obtain a
specific data coming from the UE database it will be unwilling to accept such an
information as evidence. On the other hand, one has to take into consideration that the
information contained in the database varies in its content and nature. Consequently, it
seems that some data, such as prior criminal conviction, identity documents, place of
residence, could and should be admitted to the evidentiary material. Other information,
such as contacts of a person with criminal groups or the nature of criminal activity of that
person, should be a basis for further investigative steps.
As an alternative solution it could be proposed that the rules governing the EU
database (once established) should specify information which are to be admitted by
national courts as evidence and other types of data. Eventually, national courts enjoy
discretion in making such determination.
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14) Which crimes could be included in the EU database for investigations and
prosecutions? Could it extend past the limited crimes included in the
Europol/Eurojust mandate?
The representatives of Polish police and prosecution services disagree in their
opinion on this matter. Some maintain that the scope of the EU database ratione criminis
should be limited to the offences listed in the Europol/Eurojust mandate. They argue that
any further extension of that scope would be counterproductive and produce an
undesirable effect in the form of “trashing” the system through insignificant information
on local events. Others think that the system should have the broadest possible scope, not
limited to the Europol/Eurojust mandate. They argue that otherwise it will only a matter
of time when it turns out that the scope set out originally becomes too narrow, and has to
be extended. Each such operation is not only expensive but also creates serious technical
and logistical problems to the system and people who maintain it. Therefore, it is more
advisable not to impose any restrictions in this regard.
15) What safeguards could ensure that the transfer of data from your national
authorities to the database does not clash your national law?
There are two legislative acts which contain relevant regulations concerning safety
of computer systems and networks. It could be assumed that the transfer of data from
Polish authorities to the EU database should comply with the statutory requirements. The
Protection of Secret Information Act (Annex 12) deals with these matters in Chapter 10.
The Act provides that all systems and telecommunications networks used for the purpose
of collecting, keeping, processing and transferring secret information are protected
against any attempts to reveal these information (Art. 60(1)). The Act allows such
information to be transferred through certified coding equipment (Art. 60(2)). Safety
regulations include both technical requirements which have to be met by the equipment,
special conditions which have to be fulfilled at a stage of designing of a system
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(database), and rules of professional conduct for the users, including those who have
access to the database (Art. 60)3).
Safety requirements which include the coding system, as well as measures for the
magnetic, technical and organizational protection which are specific for each system
(database) and telecommunications network, are prepared by the head of organizational
entity (Art. 61(1)) and authorized in each individual case by the state safety protection
authorities (Art. 61(2)). The latter may submit objection and demand modification of
specific requirements (Art. 61(3)). Collecting, keeping, processing and transferring of
secret information requires special certificate for each system (database) to be issued by
the state safety protection authorities (Art. 62). The head of each organizational entity
(office, authority, etc.) designates a person responsible for enforcing rules and
requirements of keeping, processing and transferring of information (system
administrator) and a person responsible for the safety and security of the system (Art. 63).
The Personal Data protection Act (Annex 3), in its Chapter 5, imposes on the data
administrator duty to undertake all technical and organizational measures to ensure the
protection of personal data being processed in the system (database), and in particular to
avoid their revealing to unauthorized persons, removing from the system, as well as
processing against the statutory rules, alteration, modification and damage (Art. 36).
Access to the system (database) and technical equipment for its support is allowed only to
persons authorized by the administrator (Art. 37). The administrator is obliged to ensure
an effective control over which personal data, by whom and when have been introduced
to the system (database), and to whom they are transferred, particularly where they are
transferred through telecommunications equipment (Art. 38).
16) Which national authority within your jurisdiction could undertake the task of
transferring the relevant data to the EU database?
There has been a long controversy in Poland as to which authority should be
responsible for collecting, keeping, transferring and processing of investigation data. One
option was to empower the Minister of Internal Affairs, the other was to designate the
Chief of Police. Eventually the second solution prevailed, and is now included in several
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legislative acts. Consequently, the persons interviewed were of the opinion that in Poland,
it is the Police that should undertake the task of transferring the relevant data to the EU
database. The police forces are best prepared and equipped for collecting and processing
data. They are also experienced in this field. Finally, they have the best databases in
terms of both the quantity and quality of information contained therein.
17) Which national/EU persons may have access to the EU database: judicial,
prosecution, police?
An answer to this question depends primarily on the nature of a database and its
contents. Arguably there is a clear distinction between databases for investigations which
contain particularly sensitive information, not only for individual persons but also for law
enforcement agencies, and databases for prosecutions (or justice databases) whose
contents may become more public than the former. Consequently the representatives of
the Polish Police argue that particularly sensitive data contained in the databases for
investigations should not be accessible to courts; instead only law enforcement authorities
should have access to them.
Generally, the following Polish authorities should have access to the databases on
investigations and prosecutions of criminal offences: Police, Border Guard, Agency of
Internal Security, Public Prosecutors Services, courts, customs authorities (chambers and
offices), fiscal authorities (chambers and offices), Office of Fiscal Control, General
Inspector of Financial Information, Military Police. The following three EU authorities
should have access to these databases: Europol, Eurojust, OLAF.
18) Which EU agency could be a suitable host for the EU database? Could Eurojust
(pursuant to Article 14 of the Eurojust Decision) establish a database for
investigations and prosecutions that includes relevant data on EU citizens,
supervised by a judicial/quasi judicial authority be acceptable to your national
legal orders? What problems, if any, would you foresee and how could they be
resolved?
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The representatives of the Polish Police are of the opinion that it is the Europol, not
Eurojust, that should host the EU database for investigations. This point of view may be
explained by at least three circumstances. First, it was already mentioned that in Poland,
there is no real database which would be an equivalent of databases for investigations.
Hence there is no relevant experience in dealing with a concurrent source of information.
The only experience the Polish authorities (both law enforcement and public prosecution)
have had so far is based on the databases for investigations. Second, according to an
opinion, shared by both the academia (see e.g. the view expressed in his handbook by the
leading authority in criminal procedure, Professor S. Waltos) and practitioners, the
biggest thrust of the fight against criminality lies on the shoulders of the Police,
especially in respect of detection of offences and their perpetrators. The law enforcement
officers are considered most responsible for all dealings in this field, including collecting
keeping and processing data. Third, the representatives of the Polish Police are afraid that
particularly sensitive information on investigations (particularly in early stage of an
investigation), concerning for example particulars of secret agents, informants,
undercover operations, other sources of information, may be “leaked” to unauthorized
persons through Eurojust. They argue that, due to the nature of Eurojust (more judicial
than law enforcement body), an access to any database hosted by that organ would
necessarily be broader than to the police database.
19) In view of the free movement of persons within the EU and the increase in
crime, would such a database constitute an effective weapon against crime?
The affirmative answer is so obvious to persons interviewed that that they consider
the question as rhetorical. They don’t see it necessary to further elaborate on this issue.
However, it merits a few comments. First, the new, central EU database may indeed
contribute to the fight against crime only if it is functional and ensures that the
information therein are fully correct (verified) and up-dated. Second, the database must
by also “user-friendly” to everyone allowed to have access to it. Third, creating such a
system requires lots of time, efforts and money. Fourth, an in order for the new database
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to become an effective instrument a clear and reasonable relationship has to be
determined and established with other similar tools, such as SIS.
20) Do you foresee political opposition, in your country, to a move for the creation
of such a database either by political parties or by human rights groups?
All the major political parties in Poland are deeply concerned about the increase in
and intensity of criminality, particularly organized crime, therefore they demonstrate a
considerable degree of understanding for this project. There should be a majority of votes
in favour provided the financial participation required from Poland for this project would
be acceptable. Creating of any new legal instrument for the purpose of combating
organized crime is always worth considering, in their opinion.
None of the political parties in Poland is pleased with the current domestic policy
against organized crime. The two reasons given most often are the unsuitable methods of
fighting it or the misuse of those methods.
Each political party has a relevant paragraph on this issue in its political program,
however there are no precise proposals on the appropriate strategies, regarding specific
legal instruments, such as the investigation/prosecution database. The only undisputed
fact is that the Police have to be granted some extra financial resources.
The organisations for the protection of human rights are also deeply concerned about
the safety of people in Poland which is seriously endangered by the increase in both
ordinary offences and organized crime. Therefore, they will maintain their actions on
promoting human rights consciousness. At the same time, they will not oppose the
necessary restrictions to some of the human rights, if such restrictions are introduced in
the public interest, especially in the field of fight against crimes that are particularly
dangerous to substantive freedoms – provided that the scope of these restrictions is
reasonable. It seems that new measures introduced in the United States after the attacks
on 11 September 2001, most notably the PATRIOT Act, would not be acceptable in
Poland. Those organisations declare that they will monitor the undertaken measurements
to ensure that there would be no harm done to the right for everyone to have his private
and family life legally protected.
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21) Is crime seen as a serious problem, by the media and the public, in your
country? Justify your opinion by reference to interviews with representatives of
the main political parties (a telephone call to their headquarters is adequate).
In Poland, as in all post-communist countries, the problems pertaining to safety and
security have become extremely acute in the nineties. In Central and Eastern Europe, the
processes of political, economic and social transformation have left, as a by-product, deep
changes in areas surrounding crime. Among them, the dramatic increase in crime rate
combined with the modification of the overall nature of criminality and criminal activities
are most notable. A necessary corollary of these phenomena has been the social and
individual perception of criminality, feeling of insecurity and dangers posed by offenders.
These issues have become an object of both empirical research and polls in Poland.
Three aspects of the problem of safety and security have been distinguished and studied
accordingly: (i) national safety, (ii) local safety, and (iii) personal safety. The table below
demonstrates the results of polls based on representative group of respondents.
TABLE 1
In your view,
is Poland a
III
XI
IV
IV
IV
III
IV
II
III
IV
III
safe country? 1987 1993
1995 1996 1997 1998 1999 2000 2001 2002 2003
YES (%)
74
26
19
21
24
22
33
28
28
29
30
NO (%)
22
67
79
77
75
76
64
70
68
70
67
No answer
4
7
2
2
1
2
4
2
4
1
3
(%)
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The results clearly indicate that in the decade: 1987 – 1997, the perception of general
(or “national”) safety among people underwent a dramatic change, moving between two
opposite positions: while in 1987, three-quarters of population were of the opinion that
Poland was a safe country, in 1997 these proportions changed in the opposite direction.
The results require, however, a necessary comment: it has to be remembered that under
the communist regime, the censorship was omnipresent, and the information on crime
was considered particularly sensitive. Therefore, there are serious doubts as to whether
the results of the official polls from before 1990 are reliable.
Interestingly, the results of polls regarding the second aspect of this phenomenon
reveal a picture which is completely inconsistent with what those same respondents think
about a “national” safety. (See TABLE 2)
It turns out that not only the vast majority of respondents are convinced that the area
of their residence (village, district) is safe and secure, but also their opinions are very
stable. Undoubtedly, such an opinion is based not on media reports (as it seems to be the
case with regard to the “national” safety) but rather on personal experience and
observation.
TABLE 2
Is your area
of residence
safe and
III
XI
IV
IV
IV
III
IV
II
III
IV
III
1987 1993
1995 1996 1997 1998 1999 2000 2001 2002 2003
YES (%)
80
67
69
70
72
72
72
71
70
71
72
NO (%)
17
30
29
29
26
26
26
28
28
27
26
No answer
3
3
2
1
2
2
2
1
2
2
2
secure?
(%)
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The discrepancy between the data contained in Table 1 and 2 seems to indicate that
the opinion about overall safety in Poland has been influenced not only by the increase of
crime rate but also by the intensity and volume of media reports on criminality. It is
noteworthy that while 85% respondents living in villages and 83% those living in small
towns consider their area of residence to be safe and secure, only 48% respondents from
big cities (over 500.000 residents) share this opinion.
Finally, the table below shows how the people perceive their potential of being a
victim of a crime in Poland.
TABLE 3
Are you afraid of being
IV
IV
III
IV
II
III
IV
III
a victim of a crime?
1996 1997 1998 1999 2000 2001 2002 2003
No fear (%)
30
37
35
40
31
33
34
32
Moderate fear (%)
50
46
47
43
46
47
45
48
Strong fear (%)
17
15
15
14
21
19
18
17
No answer (%)
3
2
3
2
2
1
3
3
Two comments are of particular interest. The figures demonstrate that the lack of
fear of victimization has been steady in the second half of the last decade: 30 % of
respondents in 1996 and 31% - in 2000. However, a sharp increase in this fear has been
noted between 1999 and 2000. The percentage of respondents who feel no fear dropped
by a quarter, while at the same time, the number of those who feel strong fear increased
by half. There are no obvious reasons for such an increase; it cannot be attributed to the
increase of the crime rate in Poland between 1999 and 2000.
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The responsibility for this situation is shared by the legal system in Poland together
with the administration of justice system. The results of the poll conducted in February
2000 are instructive in this respect. More than 91% of respondents were of the view that
Polish courts and judges are too lenient towards convicted offenders, and that the
sentences imposed on them are too low. During the poll conducted in the end of 1999, the
respondents were asked to identify the obstacles that make an effective fight against
crime difficult and even impossible. The catalogue of these circumstances looks as
follow:

the law is too lenient
49%

courts are too lenient, sentences are too low
48%

prison conditions are too comfortable
28%

gaps in legal statutes, outdated legislation
25%

unreasonable delay in administering justice
23%

inefficient work of the police
22%

police is not sufficiently equipped in modern technology
22%

corruption among policemen
17%

corruption among judges and public prosecutors
12%

suspects are treated too lenient
10%

police officers are too restricted by legal provisions
9%
It should be noted, however, that the empirical research and surveys do not create an
one-sided (or one-dimensional) picture. It turns out that respondents are also critical with
respect to some aspect of police work in Poland. Some of these aspects, such as the
efficiency and the presence on the streets, are assessed negatively. On the other hand, the
efficiency of the police is justified – at least in part – by reasons beyond their control:
poor equipment and bad legislation. The surveys have not brought a clear-cut answer to
the question regarding the respect for the policeman’s profession among the society.
There is a growing concern about the potential for a corruption among police officers.
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22) Is there a move in your country towards the reduction of police powers and the
promotion of the rehabilitation of ex-offenders?
Over the last several years, there has been a clear tendency in Poland towards
strengthening law enforcement agencies, especially the Police, and making their work
more effective. New powers have been added to already existing competence of such
organs as the Police, Border Guard, fiscal police, Agency of Internal Security. This move
of the Parliament coincided with equally strong opinion expressed by the society.
The most effective method of fighting crime is, in the view of public opinion, to give
Police more power by authorizing the Police officers to use of a wider range of measures,
as well as to remove unnecessary legal restrictions that are often perceived by ordinary
people as “obstacles”) in order to ensure that the actions are more effective. It is the legal
system itself that needs many amendments and changes, mainly in order to create more
restrictive penal regulations and to remove the major gaps in the system. As far as the
administration of justice is concerned, it is most often suggested that the punishments
applied should be more severe and prison conditions should be less comfortable for the
inmates.
23) Please feel free to make additional comments.
There are no experts on criminal databases in Poland. Moreover it was very difficult
to find staff in the law enforcement and prosecution authorities competent to answer the
questions contained in the Questionnaire. And even if they do they disagree on many
issues. It seems to me that this project is a bit ahead of the present state of affairs in
Poland where – at best – things are being organized but where there is not yet a
comprehensive and coherent system.
List of abbreviations
Dz. U. – Dziennik Ustaw [Journal of Laws]
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KCIK – Krajowe Centrum Informacji Kryminalnej [National Center of Criminal
Information]
KRK – Krajowy Rejestr Karny [National Criminal Register]
KSIP – Krajowy System Informacji Policyjnej [National System of Police Information]
SIP – System Informatyczny Prokuratury [Computer System for the Public Prosecutors
Authorities]
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AGIS PROJECT JAI/2003/AGIS/002 – POLAND
Persons interviewed:
1. Lieutenant Zbigniew Rau, Ph.D.
Advisor on Quality Management to the District Chief of Police
Poznan
Interview conducted on 25 May, 2004
2. Lieutenant Marek Chrabkowski, J.D.
Chief of Criminal Division
District Headquarters of the Police
Interview conducted on 28 May, 2004
3. Lieutenant Roman Piechura, J.D.
Central Bureau of Investigation
District Poznan
Interview conducted on 26 May, 2004
4. Mr. Jerzy Kubica, J.D.
District Public Prosecutor
District Public Prosecutor Office
Pszczyna
Interview conducted on 18 June, 2004
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