Warsaw, 2 September 2015

Maria ŚlązakPresident

CCBE

Dear Mrs President,

On behalf of the Polish Bar Council I would like to write to you with regard to the recent initiative of Senat, dated 24.07.2015, and concerning a resolution to direct to Sejm a draft law amending the Act on Police and other acts. I would hereby like to highlight our concerns as to the proposed changes. The solutions included in the draft law fulfil the judgement of the Constitutional Tribunal dated 30.07.2014 (sygn. K 23/11) only in an illusory way. In its judgement, the Tribunal has many times referred with disapproval to the current methods of control of the activities of police and special agencies. In contradiction to what the drafters claim, the proposed amendments do not resolve problems identified by the Tribunal.

Our most important concerns are with regard to the functioning of the professional secrecy (of a notary, advocate, legal adviser, tax advisor, doctor, journalist and a detective). Even though the Tribunal in its judgement ruled as unconstitutional the lack of any duty to destroy material obtained in the process of an operational control (e.g. as a result of wiretapping), which contains information protected by professional secrecy, the new amendments proposed by Senat cause further weakening of the protection of the secrecy.

In the form put forward before the Sejm, the proposed draft law allows that the representatives of the professions whose activities are linked to the protection of professional secrecy, can be subject to surveillance methods, such as wiretapping or collection of information on cell phones localisation. Moreover, it will be a state official to decide whether any material so obtained is covered by professional secrecy. The draft law provides that the court – taking into account the interests of justice – will be sanctioning the use of such information. A prosecutor, who is not satisfied with the court’s decision, will be able to appeal against it, but this right of appeal will not be given to other interested parties who are bound by the professional secrecy rules, for example advocates or doctors. They will not even be informed that they have been under such forms of surveillance.

These solutions are not in consistency with the rules of a democratic state, because they cause the professional secrecy rule to be a fiction. In our view, all the material containing such information should be destroyed immediately and by protocol.

Because of these reasons I am now turning to you, Mrs President, with a request to support the activities of the National Bar Council, which is seeking to forsake any further works on the Senat’s draft law amending the Act on Police and other acts.

Your sincerely, Andrzej ZwaraPresidentPolish Bar Council