Wybrane problemy procesowej kontroli i utrwalania rozmów

Abstract

This study addresses certain aspects of procedural surveillance and recording of wiretapped calls which are relevant to prosecutorial practice. This subject matter, regulated in Chapter 26 of the Code of Criminal Procedure, involves fundamental rights of individuals which are strictly protected under the Constitution and the highest-ranking instruments of international law. Therefore, it is of utmost importance to not only appropriately elaborate the legal regulations that permit the surveillance of citizens, but apply them in the everyday practice of law enforcement and the judiciary. The author discusses the evolution of procedural wiretapping in the Polish legal order in order to facilitate the understanding of the current regulations in this field. He also points out to specific difficulties in interpreting certain vague terms such as ‘an urgent case’, whereby a public prosecutor may order surveillance and recording of the content of telephone conversations; or a ‘particularly justified case’ which constitutes the grounds for extended surveillance and wiretapping of telephone conversations. In addition, the article takes a closer look at a possibility of procedural wiretapping under a relatively new legal institution, i.e., the European Investigation Order. With regard to this issue, mention was made of numerous controversies amongst legal scholars as to the amendment to Article 237a of the Code of Criminal Procedure, which has eliminated the so-called ‘subsequent consent of a court of law’ and placed the decision on the use of the information obtained by way of procedural wiretapping in the hands of a public prosecutor within the framework of expanding the objective or subjective boundaries of surveillance.