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OVERSEEING SURVEILLANCE POWERS – THE CASES OF POLAND AND SLOVAKIA

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Abstract

The article aims to present the most important issues related to oversight over surveillance powers in Poland and Slovakia. The word „surveillance powers” used in the study refers particularly to covert techniques and practices of gathering personal data which occurs without the monitored subjects’ knowledge or approval. Such surveillance powers are typically carried out by police services and intelligence agencies, and are more politically sensitive, as well as closely related to core issues of power and security. Oversight over these services and their surveillance powers is the standard in democratic states. Before 1989-1990, there was a similar model of security services in both analyzed countries. During Communism, there was no civil and democratic oversight over police services and intelligence agencies. Under the communist system control over security services was exercised by an inner circle representing the highest levels of the Communist party. Finally, since the early 1990s Poland and Slovakia had to build new systems of control and oversight over surveillance powers. Nowadays, both countries are members of the European Union and the Council of Europe. The basic issue of the paper is to describe how the systems of control and oversight look in Poland and Slovakia in the post-Snowden era.
69
УДК: 355.40(438)(437.6)
DOI: https://doi.org/10.22182/pnb.1812020.3
Оригинални научни рад
Mateusz Kolaszyński*
19
Jagiellonian University, Krakow, Poland
OVERSEEING SURVEILLANCE POWERS –
THE CASES OF POLAND AND SLOVAKIA**
20
Abstract
The article aims to present the most important issues related
to oversight over surveillance powers in Poland and Slovakia. The
word „surveillance powers” used in the study refers particularly to
covert techniques and practices of gathering personal data which
occurs without the monitored subjects’ knowledge or approval. Such
surveillance powers are typically carried out by police services and
intelligence agencies, and are more politically sensitive, as well
as closely related to core issues of power and security. Oversight
over these services and their surveillance powers is the standard in
democratic states. Before 1989-1990, there was a similar model of
security services in both analyzed countries. During Communism,
there was no civil and democratic oversight over police services
and intelligence agencies. Under the communist system control
over security services was exercised by an inner circle representing
the highest levels of the Communist party. Finally, since the early
1990s Poland and Slovakia had to build new systems of control and
oversight over surveillance powers. Nowadays, both countries are
members of the European Union and the Council of Europe. The
basic issue of the paper is to describe how the systems of control
and oversight look in Poland and Slovakia in the post-Snowden era.
Keywords: surveillance, intelligence services, Poland, Slovakia
* mateusz.kolaszynski@uj.edu.pl
** This work was supported by the National Scholarship Programme of the Slovak Republic for
the Support of Mobility of Students, PhD Students, University Teachers, Researchers and Artists.
Политика националне безбедности
Година XI, vol. 18
број 1/2020.
стр. 69-86
70
ПОЛИТИКА НАЦИОНАЛНЕ БЕЗБЕДНОСТИ
INTRODUCTION
Poland and Slovakia are very similar in terms of surveillance
policy because a nonexistent public debate on surveillance charac-
terizes both countries. One exception to this rule is the incidental
debates over the activities of intelligence services (See e.g. Láštic,
Kovanič 2017: 935) which are sparked o by the special status of
these institutions in the political systems of both countries. Poland’s
and Slovakia’s intelligence services have relatively broad powers in
the surveillance eld and at the same time are under the least con-
trol and oversight (Kolaszyński 2018; Svenonius, O., Björklund,
F. and Waszkiewicz, P 2014; Završnik 2013).
On one hand, in recent years, the intelligence services of these
countries have expanded their surveillance powers (Kolaszyński
2019; Kovanič 2019: 43). On the other hand, Poland and Slovakia
continue to have signicant problems with intelligence account-
ability. In political life, we can observe very often that formal
accountability mechanisms are failing. That is why, in recent years,
constitutional courts and NGOs have played a crucial role in lim-
iting surveillance powers. However, there are many examples of
unaccountable and illegitimate functioning of Polish and Slovak
security services. In both countries, these agencies are politicized
- the politicization is connected with personnel and institutional
alternations in these services (Gruszczak 2017: 70; Aldrich, Rich-
terova 2018: 1014).
Moreover, in both Central Europe countries, there are prob-
lems with intelligence services’ legitimacy. Nonetheless, when it
comes to the expansion of technological surveillance, these societ-
ies are characterized by greater support for technological surveil-
lance mechanisms aimed at combating crime. Surveillance powers
are considered to be a value-neutral solution to many security
problems (Kovanič, Coufalova 2020: 115).
Poland and Slovakia have shared the experience with
non-democratic intelligence agencies during the communist era.
Under the communist system, secrecy was the norm in the state’s
surveillance policies (Persak, Kamiński 2005). The statutory basis
did not regulate surveillance powers in a very comprehensive
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Mateusz Kolaszyński OVERSEEING SURVEILLANCE...
way. Under the communist system control over intelligence and
security services were exercised by an inner circle representing
the highest levels of the communist parties - the Polish United
Workers’ Party (Polska Zjednoczona Partia Robotnicza – PZPR)
and the Communist Party of Czechoslovakia (Komunistická strana
ČeskoslovenskaKSČ). In fact, these structures were subject to
the parties, not to the states - a trait common for most communist
countries at that time (Caparini 2014: 500). Security and intelli-
gence services were a part of the ministries which were highly
centralized, hierarchized, and party-dependent. Sometimes the
communist culture of secret services is mentioned (Medvecký,
Sivoš 2016: 335). According to M. Kovanič and A. Coufalova
this culture “was characterized primarily by the orientation of the
intelligence agency inwards, on surveilling its own population
and being an extension of the communist party, responsible for
the maintenance of the non-democratic regime. In this sense, the
legacy of communist intelligence, and the persistence of former
ocers, created a barrier to the creation of a democratic intelligence
infrastructure” (Kovanič, Coufalova 2020: 118).
One of the consequences of democratic transformation was
the need to create a system of control and oversight over intelli-
gence services. Secret services also had to start respecting the rule
of law. These requirements were opposite to the communist culture
of intelligence. Intelligence services had to change the philosophy
of their activity - become a service of the state and its citizens, not
the ruling party (Williams, Deletant 2001: 17-20).
The article presents fundamental problems related to the con-
trol and oversight of surveillance in Poland and Slovakia. The rst
part characterizes the system of control and oversight over intelli-
gence services in both countries. The rest of the article describes
the most important changes in both systems after 2013. The article
will examine the issue of overseeing surveillance powers from
an institutional perspective. Particular attention was paid to the
institutional mechanisms of oversight and control and its most
vital elements: intelligence services, oversight institutions, and
institutions of control.
72
ПОЛИТИКА НАЦИОНАЛНЕ БЕЗБЕДНОСТИ
POLAND AND SLOVAKIA BEFORE 2013
Poland’s intelligence community is relatively complex and
distinctly diversied. Intelligence is the main domain of special
services. One of the most signicant features of Polish intelligence
is that it is referred to “special services” rather than intelligence
services. The legal term “special service” includes intelligence
agencies: the Internal Security Agency (Agencja Bezpieczeństwa
Wewnętrznego - ABW), the Foreign Intelligence Agency (Agencja
Wywiadu - AW), CBA, the Military Counterintelligence Service
(Służba Kontrwywiadu Wewnętrznego - SKW) and the Military
Intelligence Service (Służba Wywiadu Wojskowego - SWW), but
also police groups such as the Central Anti-Corruption Bureau
(Centralne Biuro Antykorupcyjne - CBA). Indeed, there is a lack
of clear division between intelligence services and police services
in Poland (Gruszczak 2009). Currently, this problem applies to the
CBA and the ABW (Kolaszyński 2017). Polish special services
are institutions which undergo a specic process of oversight and
control. Oversight and control solutions are supported by the Board
for Special Services (within the executive branch) and the Sejm
Committee for Special Services (within the legislative branch).
Consequently, special services are located closer to the political
centre and therefore are more exposed to political turmoil. It is the
major dierence between special services and other services, e.g.,
police agencies (Kolaszyński 2018).
Compared to Poland, Slovakia is characterized by integrat-
ed intelligence model, which means it covers both domestic and
foreign intelligence. In this country, there are two intelligence
services: the Slovak Information Service (Slovenská informačná
služba - SIS) and the Military Intelligence (Vojenské spravodajstvo
- VS). SIS is a civilian intelligence service, which is responsible
for intelligence and counterintelligence - the Slovak Information
Service is a general security and intelligence service of the Slovak
Republic. The second intelligence service – VS was created on Jan-
uary 2013, as a result of merging two military intelligence services:
Military Defence Intelligence (Vojenské obranné spravodajstvo
- VOS) and Military Intelligence Service (Vojenská spravodajská
službaVSS). VS, as the name suggests, is responsible for military
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Mateusz Kolaszyński OVERSEEING SURVEILLANCE...
intelligence.1 In Slovakia, the division of intelligence services and
police agencies is more precise. Control and oversight institutions
are, to a large extent, created for individual intelligence services,
e.g., there are two parliamentary committees responsible for over
-
seeing intelligence services - one for SIS and the other for VS
(Kadlečíkovává, Rapošová 2016: 2-8).
The institutional frames of executive control over Polish
special services are broad and exible. The government enjoys
a great deal of freedom as there are very few institutional limits.
As a result, since 1990, special services have been controlled by
many institutions of a dierent political character. In Poland, there
are practically no permanent, institutionalized forms of executive
control over services responsible for surveillance. Since there are so
few institutional limitations, dierent governments enjoy consid-
erable independence in exercising control. As a result, intelligence
services have been supervised by several bodies of various struc-
tural and political status leading to a lack of permanent, substantive
background, e.g., ocials who would specialize in control over
these institutions (Zybertowicz 2007).
Similarly to Poland, Slovakia also has many examples of
the direct inuence of politicians on the activities of intelligence
services. This problem concerns, among other things, surveillance
measures. In both cases, the politicization of intelligence services is
characteristic. It can be said that the intelligence services are actors
on the political scene. There are many political scandals related to
eavesdropping of politicians, e.g., the Ground Scandal in Poland
and the Gorilla Scandal in Slovakia (Láštic, Kovanič 2017: 937).
On the other hand, they play a signicant role in legislative changes
related to the extension of surveillance powers.
When it comes to parliamentary oversight over intelligence
services, it is quite similar in Poland and Slovakia. Parliamentary
oversight is carried out primarily by special committees. In Poland,
the Sejm Committee for Special Services (Sejmowa Komisji ds.
Służb Specjalnych)
2
was appointed. In Slovakia, there are two par-
1 In Slovakia there is also National Security Agency (Národný bezpečnostný úrad NBÚ).
This agency is responsible for the protection of classied information, encryption services, and
electronic signature. It also provides security clearances for dozens of state ocials and civil and
private employees and companies.
2 Article 95, second paragraph of the Constitution of the Republic of Poland of 2 April 1997
74
ПОЛИТИКА НАЦИОНАЛНЕ БЕЗБЕДНОСТИ
liamentary committees for intelligence services. Each intelligence
service is the subject of work of a dierent parliamentary com-
mittee: Slovak Intelligence Service Oversight Special Committee
(Osobitný kontrolný výbor NR SR na kontrolu činnosti SIS) for SIS
and Military Intelligence Service Oversight Special Committee
(Osobitný kontrolný výbor NR SR na kontrolu činnosti Vojenského
spravodajstva) for VS. Oversight of the activities of SIS and VS
shall be carried out by the National Council of the Slovak Repub-
lic, which shall establish for this purpose a special oversight body
comprised of MPs of governmental political parties and opposition
political parties.
The statutory basis of both special committees in Slovakia
is very similar. In Poland, the statutory basis is minimal, and these
issues are regulated in the Sejm regulations. In both countries,
these committees are consisted of members of the parliament. The
National Council of the Slovak Republic and the Sejm in Poland
shall elect members to the committees, and determine the number
of members, the organization and method of work of this body. The
Slovak special committees are usually chaired by an opposition
representative - in the past, this practice also applied in Poland.
The committees had the power to oversee numerous actions
taken by the intelligence services.
3
However, the essential feature of
the committees is not the wide subject eld of its work but the fact
that they are entitled to demand information from the government,
the chiefs of services and their ocers. The committees’ power in
that matter is limited. In Poland, disclosure of surveillance infor-
mation requires the consent of the heads of intelligence services.
The regulations do not point out to any particular grounds for
either approval or rejection. That is why the committee might be
denied access to information (Sarnecki 2010: 130). In Slovakia,
these institutions have also limited powers to oversee intelligence
surveillance. The committees review only internal regulations
concerning conditions of use of intelligence services’ surveillance
measures.
(Journal of Laws, no. 78, item 483 as amended) states that the Sejm (the lower house of the parlia-
ment) is responsible for government oversight.
3 In Poland the Committee handles only some of services entitled to perform surveillance. Reg-
ulations refer to them as special services (służby specjalne) and they include: the Internal Security
Agency (ABW), the Foreign Intelligence Agency (AW), the Central Anti-Corruption Bureau (CBA),
the Military Counterintelligence Service (SKW) and the Military Intelligence Service (SWW).
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Mateusz Kolaszyński OVERSEEING SURVEILLANCE...
The next element of the control and oversight system - the
judicial oversight ocially guarantees external, independent over-
sight over this area of secret surveillance which interferes with the
human rights to the greatest extent. In both countries, courts play an
essential role in approving some surveillance measures of intelli-
gence services. However, in Slovakia, the mandate of the judiciary
seems broader, e.g., the access to the telecommunications metada-
ta was made conditional on obtaining a court-approved warrant.
Moreover, court approval is necessary for a covert replacement of
the object, a simulated object ownership transfer.
However, there is a lack of actual judiciary oversight in
Poland. Polish judiciary oversight is exercised by criminal divi-
sions of common courts of law and military courts which mostly
deal with criminal cases. There are no other specially designed
departments or other structures which would be responsible for
giving consent to operational surveillance. For this reason, such
duties are treated as peripheral or secondary tasks.
In Poland and Slovakia, remaining elements of formal over-
sight over secret surveillance play very important role. The Consti-
tutional Courts played one of the signicant roles in developing the
statutory basis for secret surveillance. The sentences passed by the
Courts often contributed to the changes in the regulations and, con-
sequently, more excellent protection of human rights and liberties.
In Poland, some aspects of secret surveillance work also used to
be monitored by an independent constitutional body - the Supreme
Audit Oce (Najwyższa Izba KontroliNIK) which supervised
methods of acquiring telecom data. Also, the Commissioner for
Human Rights (Rzecznik Praw Obywatelskich - RPO) is in charge
of dealing with human rights and violations of civil liberties. In
case there are doubts about regulations regarding powers taken by
intelligence services and law enforcement, the Commissioner’s
task is to commence procedures in front of the Tribunal to nd
such regulations unconstitutional. The Commissioner’s interests
also include the issue of wiretapping utilized by law enforcement
and intelligence services.
76
ПОЛИТИКА НАЦИОНАЛНЕ БЕЗБЕДНОСТИ
To sum up, before the Snowden revelations, the Polish and
Slovak systems of control and oversight were similar. Both systems
were not institutionally developed, and discussion on this subject
is very limited in these societies.
POLAND AFTER 2013
In Poland there were no signicant surveillance reforms
after Snowden revelations. The amendments to the Act4 in 2016
implemented many recommendations included in the Constitu-
tional Tribunal judgment of 30 July 2014.
5
However, the most
essential principles formulated in the judgment, which had to be
reected in the process of revision of secret surveillance legisla-
tion, were not included. In this judgment, the Tribunal specied
essential principles that must be jointly met by provisions which
regulate obtaining information on individuals in secrecy by public
authorities in a democratic state ruled by law. The Polish legislator
has not introduced some of such principles to date. For example,
according to the judgment, the law should provide for the right
of the monitored person to be informed about surveillance once
it is nished, and the right to initiate the judicial review thereof
(however, in exceptional circumstances the departure from the
notication rule should be possible).6 Such a right has not been
provided to citizens yet.
A number of recommendations from the Venice Commis-
sion have not been introduced in the Polish law. According to the
Opinion of 2016, procedural safeguards and material conditions
set in the police acts7 on implementing secret surveillance are still
4 The Act of 15 January 2016 Amending the Police Act and certain other acts (the so-called
surveillance act). This amendment led to the creation of a mechanism of oversight of access to
telecommunication and internet data based on the ex-post supervision conducted by the regional
court (sąd okręgowy) on the basis of a biannual statistical report prepared by the law enforcement
and intelligence services.
5 The Constitutional Tribunal, judgment of 30 July 2014 (No. K 23/11).
6 See also the Decision of the Constitutional Tribunal of 25 January 2006 (No. S 2/06).
7 Nowadays, the term “the police acts” includes the Act of 6 April 1990 on the Police; the Act
of 12 October 1990 on the Border Guard; the Act of 24 August 2001 on the Military Police and
military law enforcement bodies; the Act of 24 May 2002 on the Internal Security Agency and the
Foreign Intelligence Agency; the Act of 9 June 2006 on the Central Anticorruption Bureau; the Act
of 9 June 2006 on the Military Counterintelligence Service and the Military Intelligence Service;
the Act of 16 November 2016 on the National Revenue Administration; the Act of 8 December
2017 on the National Security Service.
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Mateusz Kolaszyński OVERSEEING SURVEILLANCE...
insucient because they do not prevent excessive use of pow-
ers and unjustied interference with the privacy of individuals.
Detailed recommendations of the Venice Commission concerned
strengthening of the proportionality principle in the following way:
rst, limitation of the use of secret surveillance only to the most
serious cases. Secondly, limitation of the duration of the metadata
monitoring. It is also signicant to respect a lawyer-client privi-
lege (and other privileged communications) while ordering secret
surveillance. A number of recommendations concerned a mecha-
nism of oversight of secret surveillance and metadata collection:
to complement the system of judicial pre-authorization of secret
surveillance with additional procedural safeguard, e.g. a privacy
advocate; a complaints mechanism; a system of ex-post automatic
oversight of such operations by independent body (Venice Com-
mission 2016).
Many opinions regarding surveillance for the European
Union countries can be found in the European Union Agency for
Fundamental Rights’ (FRA) reports (European Union Agency for
Fundamental Rights 2017a; European Union Agency for Funda-
mental Rights 2017b). The issue of the impact of surveillance on
fundamental right is crucial in democratic countries. One of the
FRA reports indicates e.g. following recommendations: clear legal
framework; dening in law oversight bodies’ competencies over
international intelligence cooperation, ecient whistleblower pro-
tection, safeguards against surveillance for protected professions
(e.g. members of parliament, members of the judiciary, lawyers
and media professionals). These reforms should be introduced
along with broad consultation and openness during the legislative
process. A signicant part of recommendations concerned an over-
sight system of intelligence services. The legal system should pro-
vide independent intelligence oversight with sucient powers and
competencies, technical expertise, openness to public scrutiny etc.
In Polish case, introduction of these recommendations would
require fundamental systemic changes in surveillance or intelli-
gence law. Such extensive reforms took place in France, Germany,
the Netherlands and the United Kingdom in recent years (Euro-
pean Union Agency for Fundamental Rights 2017b: 9). In Poland
there are no governmental proposals for such reforms although the
program of the ruling party (the Law and Justice, PiS) assumes
78
ПОЛИТИКА НАЦИОНАЛНЕ БЕЗБЕДНОСТИ
strengthening of parliamentary oversight of intelligence services
and adopting comprehensive surveillance law (The Party Program
of the Law and Justice 2014: 62). Neither the program nor the
governmental policy links surveillance issue with protection of
individual rights. Poland is denitely going in a dierent direction
strengthening surveillance powers of security services without
material and procedural safeguard for fundamental rights.
According to the Polish Ombudsman, the reforms intro-
duced in 2016 (the so-called surveillance act) not only fails to
execute the judgment of the Constitutional Tribunal of 2014, but
“seriously violates the constitutional rights and freedoms and the
standards set out in international law”.8 According to him, in the
Polish legal system there is still a shortage of the legal safeguards
which would make sure that surveillance measures do not violate
fundamental rights.
The most important the Ombudsman’s allegations concern
the violation of the right to privacy and the protection of personal
data of citizens:
no time limit or disproportionately long duration of
operational surveillance. Operational surveillance is per-
formed, as a rule, with the prior consent of a regional court.
This power can be prolonged to a maximum of 18 months. It
is too long time period for the ombudsman and in his opinion,
it does not satisfy the condition of proportionality principle.
very broad mandate of police and intelligence services to
collect metadata.
9
The grounds for collecting metadata under
the police acts are very wide. Services may collect metadata
for any useful purpose related to the very broad mandate to
maintain peace and order.10
no real oversight of metadata collection by an indepen-
dent body. Regarding the collection of metadata there is
8 The Commissioner for Human Rights application, No K 9/16, p. 6.
9 Metadata is all data connected to and regarding a (tele-) communication. It may include
information about phone calls placed or received, numbers dialed, duration of calls, geographical
location of mobile devices at a given moment, websites visited, logins, personal settings, addresses
of e-mail correspondence etc. (Venice Commission 2016: 7).
10 E.g. under Article 20c para. 1 of the Police Act, the Police can obtain metadata “in order to
prevent or detect crimes or in order to save human life and health, or in order to support rescue and
nd missions”.
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Mateusz Kolaszyński OVERSEEING SURVEILLANCE...
only a system of ex-post review in Poland. According to the
ombudsman, courts do not have all the necessary legal tools
to fulll their controlling function. The reporting obligation
is insucient because reports contain only summarized infor-
mation, which does not give insight into the particulars of
each specic case.
lack of right of the monitored person to be informed
about surveillance. As already noted above, such a right
has not been provided to citizens yet. According to current
provisions, a citizen does not receive such information even
when no evidence was detected during the surveillance.
aw in the provisions regulating surveillance of privilege
communications. The ombudsman in his application drew a
particular attention to a weaker professional privilege which
covers notaries, advocates and legal advisors (who do not
act as defence lawyers), tax advisors, doctors, mediators or
journalists. Nothing in the Polish law prevents police and
intelligence services from listening to such conversations.
The allegations of the Polish Ombudsman are based on the
case-law of the European Court of Human Rights, Court of Justice
of the European Union and the Polish Constitutional Tribunal.
Case-law of these courts is essentially convergent. Therefore, the
allegations are very similar to the recommendations from the Ven-
ice Commission opinion. Nota bene: the Venice Commission “in
deference to the Constitutional Tribunal” avoided commenting on
the compatibility of the 2016 amendments with the Polish Con-
stitution and based its analysis on international standard (Venice
Commission 2016: 5).
SLOVAKIA AFTER 2013
Currently, surveillance reforms are more visible in Slovakia.
Systemic changes in the legislation regarding privacy and data
protection are related to the nal resolution of the Constitutional
Court of the Slovak Republic from 29 April 2015.11 As in Poland,
the jurisprudence of the Slovak Constitutional Court is similar to
11 Slovakia, Constitutional Court of the Slovak Republic (Ústavný súd Slovenskej Republiky)
Resolution No. PL. ÚS 10/2014-78 from 29 April 2015. Available at http://www.concourt.sk.
80
ПОЛИТИКА НАЦИОНАЛНЕ БЕЗБЕДНОСТИ
the jurisprudence of the European Court of Human Rights, Court
of Justice of the European Union. According to the judgment, mass
and systematic surveillance violates the right to privacy and the
principle of proportionality (Kovanič 2019: 43).
The amendments to the three Acts came into force on 1
January 2016.12 According to J. Kadlečíkovává and I. Rapošová:
“the new provisions secure a greater control over data retention
process and provide more detailed specication of situations in
which data could be retained, stored and requested by state bodies”
(Kadlečíkovává, Rapošová 2016: 2). The amendments stated that
metadata may be requested only in the case of the most serious
crimes, such as terrorism, and could be obtained only based on a
court order. Currently, the Slovak intelligence services are entitled
to acquire telecommunication data only ex-ante and only with the
written consent of the competent judge. In this situation, the prin-
ciple of proportionality must also be fullled (Kovanič 2019: 43).
In 2015 also brought a passing of the anti-terrorist legisla-
tion. It included the amendment to the Criminal Code
13
, which
e.g., enabled police access to metadata from telecommunication
companies’ databases in cases of the search for a wanted or missing
person. In the rst case, a judicial warrant is required. Moreover,
the SIS unsuccessfully tried to gain more unrestricted access to
metadata. Such two attempts occurred in 2015 and in 2018. Both
tries failed due to political and civil society resistance (Kovanič
2019: 43).
Moreover, the amendments provide for an obligation to
establish a new monitoring body - the Special Commission of the
National Council to oversee the use of information-technological
tools that shall secure the surveillance. It is to be an institution
that combines elements of parliamentary and expert oversight.
The Special Committee is comprised of 6 MPs of governmental
political parties (3 MPs) and opposition political parties (3 MPs).
In addition, the committee consists of 2 experts. A committee audit
12 Slovakia, Act No. 397/2015 Coll. which for the purposes of the Criminal Code provides a list
of substances with anabolic or other hormonal action and amending and supplementing certain laws
(Predpis č. 397/2015, ktorým sa na účely Trestného zákona ustanovuje zoznamlátok s anabolickým
alebo iným hormonálnym účinkom a ktorým sa menia a dopĺňajú niektoré zákony) from13 November
2015.
13 No. 444/2015.
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Mateusz Kolaszyński OVERSEEING SURVEILLANCE...
may be initiated at the request of an authority and the request of a
citizen. There is currently no information on the work of the com-
mission. That is why M. Kovanič’s opinion: “even the minimal
parliamentary control of the use of metadata by the police and
intelligence is not functional” seems correct (Kovanič 2019: 44).
In Slovakia, as in the case of Poland, the process of extend-
ing surveillance powers is also visible. The most representative
example is associated with the launch of the Electronic Toll System
(ETS) in Slovakia. The operation of the toll system required the
building of a surveillance infrastructure over Slovak motorways,
which collected two types of data. The rst one was data collected
electronically by the operator – such as the vehicle number plate,
technical information about a vehicle, the distance driven by a
vehicle, and information about toll programs. The second type
of data was required for the conclusion of the contract – personal
information of the vehicle owner and information about the vehicle.
This infrastructure created a potentially extensive surveillance pro-
gram for the movement of individuals across the country (Kovanič,
Coufalova 2020: 123). In past years, the SIS gained unlimited
access to all data collected through ETS. The provision of the law
is formulated very generally, and the procedure of access is unclear.
Another example of extending surveillance powers is the
amendment of the Act on the Protection of Privacy against Unau-
thorized Use of Information and Technical Means.14 This amend-
ment specied the denition of information and technical means
of surveillance by adding messages transmitted through electronic
communication networks. This change meant that the SIS would
be able to perform surveillance on communications transmitted
by email, social networks or software such as Skype or Google
Hangouts, which it had not been able to do ocially until then
(Kovanič, Coufalova 2020: 124).
Changes in law directly related to terrorist attacks in Europe
in recent years are very signicant. One of the reactions to the
occurrence of terrorist attacks was the expansion of the powers and
competencies of intelligence services – including the expansion of
surveillance capacities. Most of the anti-terrorist legislation was
presented to the National Council as an amendment to the Crimi-
14 No. 404/2015.
82
ПОЛИТИКА НАЦИОНАЛНЕ БЕЗБЕДНОСТИ
nal Code in November 2015 and included changes to 16 laws and
the constitution. According to amendment, the SIS received new
powers to actively collect information on terrorism, political and
religious extremism, cyber threats, and human migration. It also
gained new powers to ‘shut down’ extremist websites, or websites
promoting terrorism. The SIS also received the power to request
camera or audio recordings from CCTV cameras, or other devices
that capture public spaces, if this recording is needed to protect
state security. M. Kovanič and A. Coufalova note that in Slovakia,
there is “the problem of the indirect amendment of competencies
– the increase of powers through the legislative amendment of a
dierent law” (Kovanič, Coufalova 2020: 125).
CONCLUSIONS
The oversight of surveillance powers in Poland and Slova-
kia is based on the same principles. Both countries have similar
problems in this matter. The institutional systems of control and
oversight over surveillance powers are not developed in both coun-
tries. There is a visible lack of wider public debate on this topic.
This can be explained by the low interest in the surveillance issue
in these societies. The impulse to legislative changes were, to a
greater extent, terrorist attacks in Europe rather than the Snowden
revelations. In recent years, legal changes strengthening oversight
over surveillance powers are more visible in Slovakia. However, in
Slovakia, there are problems at the level of political practice with
the implementation of laws. In Poland, governments ignore the
legal standard in this eld. Finally, in both countries, surveillance
powers are primarily to give intelligence services a better tool to
perform their tasks.
In both countries, the Constitutional Tribunals play a bal-
ancing role between security and human rights. The decisions of
these courts take into account the case-law of the European Court
of Human Rights and the Court of Justice of the European Union.
Ultimately, these rulings may contribute to limiting the powers of
intelligence and police services. The Constitutional Tribunals in
both countries drew attention to the need to create mechanisms
for independent oversight over surveillance powers. In Slovakia,
it led to legislative changes introducing regulations regarding the
Special Commission. Legislative changes have also been intro-
стр 69-86
83
Mateusz Kolaszyński OVERSEEING SURVEILLANCE...
duced in Poland. However, they have extended the surveillance
powers of the services while the proposed oversight mechanisms
have provided ctitious solutions. In practice, the judgment of the
Polish Constitutional Tribunal has not been implemented yet. In
Slovakia, enforcement diculties occur at the level of political
practice. However, both countries face challenges to implement
the appropriate provisions for the surveillance policy. Legal guar-
antees and oversight mechanisms against excessive surveillance
are very modest.
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86
ПОЛИТИКА НАЦИОНАЛНЕ БЕЗБЕДНОСТИ
Матеуш Колашињски*15
Јагелонски универзитет, Краков, Пољска
НАДЗОР НАД ОБАВЕШТАЈНИМ ОВЛАШЋЕЊИМА –
СЛУЧАЈЕВИ ПОЉСКЕ И СЛОВАЧКЕ
Резиме
Циљ чланка је да представи најважнија питања у вези
са надзором над обавештајним овлашћењима у Пољској и
Словачкој. Појам „обавештајна овлашћења“ коришћен у
студији односи се на посебне обавештајне технике и праксе
сакупљања личних података, које се дешавају без знања или
дозволе субјекта. Таква овлашћења су типично у рукама
полицијских служби и обавештајних агенција и веома су
политички осетљива, али и блиско повезана са кључним
питањима моћи и безбедности. Надзор ових служби и њихових
овлашћења је стандард у демо
16
кратским државама. Пре
1989-1990. године, постојао је сличан модел безбедносних
служби у обе анализиране државе. За време комунизма, није
постојао цивилни или демократски надзор над полицијским и
обавештајним сектором. Под тим системом, контрола над
безбедносним службама је вршена од стране унутрашњег
круга људи који је представљао највише нивое Комунистичке
партије. Најзад, од раних 1990-тих, Пољска и Словачка морале
су да граде нови систем контроле и надзора. Данас, обе земље
су чланице Европске уније и Савета Европе. Основно питање
овог чланка је да испита како изгледају системи контроле и
надзора у Пољској и Словачкој у пост-Сноуденовој ери.
Кључне речи: обавештајне службе, надзор, Пољска, Словачка
* mateusz.kolaszynski@uj.edu.pl
* Овај рад је примљен 9. aприла 2020. године, а прихваћен за штампу на телефонском
састанку Редакције, 13. априла 2020. године.
стр 69-86
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The Polish intelligence services and security dilemmas of a frontline state
  • A Gruszczak
Gruszczak, A. 2017. "The Polish intelligence services and security dilemmas of a frontline state". Revista Română de Studii de Intelligence, 17-18: 65-80.
Dostęp do akt dokumentujących działania podjęte przez służby specjalne" [Access to the files documenting activities taken by special services
  • P Sarnecki
Sarnecki, P. 2010. "Dostęp do akt dokumentujących działania podjęte przez służby specjalne" [Access to the files documenting activities taken by special services]. In: Regulamin Sejmu w opiniach Biura Analiz Sejmowych: Vol. 2, ed. W. Odrowąż-Sypniewski, 128-130. Warsaw: Wydawnictwo Sejmowe.