State Security as Exemplified by the Offense of Espionage Under Polish Law

Remigiusz Rosicki

doi:10.14746/ssp.2021.3.4

Abstract

The scope of the research problem encompasses selected issues concerning the content and sense of the elements characterizing the offense of espionage in Polish criminal law. In the legislation currently in force, the offense of espionage is criminalized under Art. 130 § 1–4 of the Criminal Code. The main purpose of the analysis is to perform a substantive criminal examination of the offense of espionage under Polish law, considering a practical case study and an assessment of the legal provisions regarding state security. In order to elaborate the material scope of the research problem and present the conclusions, the paper asks the following research questions: (1) To what extent are the de lege lata legal solutions in Poland effective in counteracting espionage offenses?, (2) What de lege ferenda solutions ought to be proposed to improve effective counteraction of espionage offenses? The paper includes an institutional and legal analysis aided by textual, functional, and historical interpretations, supplemented with the author’s conclusions and opinions concerning de lege lata and de lege ferenda solutions. The institutional and legal analysis is supplemented with a case study of espionage activity. The case study helps consider selected legal problems and presents example legal classifications of the described acts associated with espionage activity.

Highlights

The subject of analysis in the present text is delineated by legal solutions concerning the scope of criminalization of espionage in the context of state security
The subject of analysis is the problem concerned with the content and sense of the statutory criteria for the offense of espionage criminalized under Art. 130 § 1–4 of the Polish Criminal Code
The thought experiment is necessary for considering selected legal problems and legal classifications of the described acts related to espionage activity

Summary

Introduction

The subject of analysis in the present text is delineated by legal solutions concerning the scope of criminalization of espionage in the context of state security. ŚSP 3 ’21 case is associated with the fact that the offense of espionage sensu lato is treated as a political offense, especially in a situation where espionage is committed by a citizen of a given state, which is viewed as a betrayal of the mother country (for more on this see: Kuczur, 2012) In the latter case, espionage is treated as an act infringing a legal interest, i.e., a subject of substantive criminal protection – the state (i.e., the Republic of Poland) (cf Hoc, 2002). The paper’s main purpose is to perform a substantive criminal analysis of the offense of espionage under Polish law, taking into account a practical case study and an assessment of the legal provisions in force concerning the legal interest of state security. ŚSP 3 ’21 State Security as Exemplified by the Offense of Espionage

General Assumptions Underlying Criminalization of Espionage

Types of the Offense of Espionage and Their Statutory Criteria

General Assumptions Underlying the Case Study

Legal Assessment of the Individual Characters’ Acts in the Case Study

Conclusion