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New Draft Law on the Competences of Secret Services May Violate Legal Professional Privilege

Last year, the Constitutional Tribunal ruled that certain provisions governing secret services’ access to telecommunication data (e.g. text messages and phone records) violate the Constitution. The Tribunal demanded that a procedure for destroying data covered by the legal professional privilege (LPP) be introduced. Nevertheless, the draft law on the competences of secret services, in its current shape, instead of protecting data covered by LPP exposes it to abuse from secret services in ongoing proceedings.

The draft law introduces a procedure of dealing with material covered by LPP and gathered during operational surveillance. Having acquainted oneself with the material, an officer of an authorised secret service would decide whether it constitutes information covered by professional secrecy. If so, secret services would have to apply to the prosecutor who would – in turn – have to apply to the court for permission to use the material in the course of proceedings. If the court refused consent, the material would have to be destroyed.

“This procedure does not, in any way, guarantee protection of information covered by the legal professional privilege. Even if the court refused consent to use this information, the secret services will have already learnt about it,” says advocate Mikołaj Pietrzak.

The draft law raises numerous controversies. The Polish Bar Council, the Prosecutor General, the Inspector General for the Protection of Personal Data as well as non-governmental organisations have already presented their critical opinions on the draft.

The provisions which were deemed unconstitutional by the Constitutional Tribunal will expire in February 2016.