Month: July 2014

The full Tribunal agreed only partly with allegations of the Polish Ombudsman, Irena Lipowicz, and the Prosecutor General, Andrzej Seremet, who questioned the current legal regulations. In order to prevent a loophole in the legal system and to prevent any reduction in Poland’s ability to combat crimes, the judgment will become final in 18 months.

According to the decision of the Constitutional Tribunal, the Act on Internal Security Agency, the Act on Central Anti-Corruption Bureau, and the Act on Military Counterintelligence Service do not provide necessary regulations imposing duties to destroy the data obtained by those secret services. Such data should be destroyed because they cannot be used as evidence in criminal proceedings when they contain information obtained from persons bound by professional secrecy, including advocates. The Constitutional Tribunal pointed out that nowadays even the Custom Service keeps wiretaps of individuals, even though this service is not allowed to use such information in criminal proceedings.

Two out of four judges – Wojciech Hermeliński (former advocate) and Marek Zubik – presented dissenting opinions. According to judge Wojciech Hermeliński, the obligation to destroy wiretaps obtained from advocates, even if they were obtained accidentally, does not efficiently protect the advocates’ professional legal privilege. It is crucial to create mechanisms preventing access to these kinds of materials.

Adv. Mikołaj Pietrzak, in his interview for Gazeta Wyborcza, pointed out that the ruling of the Constitutional Tribunal, emphasizing the importance of legal professional secrecy and the duty to destroy all materials that might be gathered as a result of operational control, is significant both for advocates and for their clients.

In Adv. Mikołaj Pietrzak’s opinion, in order to execute the Tribunals’ judgment, instead of implementing separate regulations in every act regulating the functioning of the secret service, only one Act on operation activities should be passed.

According to the decision of the European Court of Human Rights in Strasburg from 24^th July, 2014, Poland is obligated to pay 100,000 EUR of compensation to Abd al-Rahim al-Nashiri and 130,000 EUR of compensation to Abu Zubajda. Both men were imprisoned and tortured in the secret CIA prison in Stare Kiejkuty, Poland, in 2002 and 2003.

“The ECHR’s judgment is devastating for Poland, because it found that Poland not only violated its obligation to conduct an effective investigation, but also confirms the fact that Poland participated in a system of kidnapping and torture run by the CIA, and that Poland provided the CIA with help for kidnapping, illegal imprisonment and torturing people,” explains adv. Mikołaj Pietrzak.

The European Court of Human Rights found that the Polish Government had been cooperating with the CIA. People suspected of terrorist attacks had been interrogated in secret prisons in Poland. The ECHR came to the conclusion that Poland had violated seven rights guaranteed by the European Convention of Human Rights, pointing out the State’s failure to carry out an effective investigation (breach of Article 3), transfer of the applicant from the respondent State’s territory despite the existence of a real risk that he could be subjected to the death penalty (breach of Articles 2, 3 and 5) violation of the Applicant’s rights to a fair trial (Article 6) and the right to respect for private and family life (Article 8).

According to Americans, Al- Nashiri is guilty of the terrorist attack on the American Navy’s ship, the USS Cole, in 2000 in Yemen. He was detained in Dubai two years after the attack and transferred to an arrest facilities in Afghanistan and Thailand. Thereafter, he was imprisoned and tortured in Poland.

Abu Zubajda was detained in Pakistan in 2002 as “person no. 3” in Al-Qaeda and the closest associate of Osama bin Laden. He was imprisoned in Thailand, and in December 2002 he was transferred to Poland, where he was imprisoned and tortured.

The article can be read here

[Ewa Siedlecka, Mecenas Al– Nashiriego: Trybunał powiedział wprost, że oni tu byli torturowani, www.wyborcza.pl, 24.07.2014]