192. The law of 24 May 2002 on the Internal Security Agency and the Intelligence Agency (ustawa z dnia 24 maja 2002 r. o Agencji Bezpieczeństwa Wewnętrznego oraz Agencji Wywiadu) (“the 2002 Act”), adopted as a measure reforming the former structures of the secret services, set up two civilian intelligence agencies.
The Internal Security Agency (Agencja Bezpieczeństwa Wewnętrznego – also called “ABW” in Polish) is responsible for the protection of the State’s internal security and the State’s constitutional order (section 1).
The Intelligence Agency (also called “AW” in Polish) is responsible for “the external protection of the State” (section 2). This includes foreign intelligence.
According to section 3 of the 2002 Act, the heads of both agencies are subordinate to the Prime Minister. Their activities are subject to Parliament’s oversight – through the Parliamentary Commission for Special Services (Sejmowa Komisja do Spraw Służb Specjalnych).
193. The tasks of the Intelligence Agency are enumerated in section 6(1). They include, among other things, the following:
1) obtaining, analysing, processing and transmitting to the relevant authorities information that may have a vital importance for security and international position of the Republic of Poland and its economic and defence potential;
2) identifying and counteracting external threats to the security, defence, independence and territorial integrity of the Republic of Poland;
...
5) identifying international terrorism, extremism and international organised-crime groups;
...
7) identifying and analysing threats occurring in regions of tensions, conflicts and international crisis which have an impact on the State’s security and taking actions aimed at eliminating those threats;
...
9) taking other actions specified in other laws and international agreements.” 194. Section 6(3) stipulates that the Intelligence Agency’s activities in the territory of Poland may be conducted exclusively in connection with their activities abroad.
195. Section 7 states, in so far as relevant, as follows:
“1. The Prime Minister determines the directions for the agencies’ actions by means of guidelines.
...
3. The heads of the agencies, each within his competence, shall submit, by 31 January, a annual report on the agency’s activities for the previous calendar year.” 196. Section 8 provides:
“1. In order to accomplish the agencies’ tasks, the heads of the agencies, each within his competence, may cooperate with the relevant authorities and services of other States.
2. Cooperation referred to in section 1 may be sought after obtaining the Prime Minister’s consent.”
197. Chapter 2 of the 2002 Act deals with the Cabinet Committee for Special Services (Kolegium do Spraw Służb Specjalnych) – a consultative- advisory body chaired by the Prime Minister.
Pursuant to section 11, the Committee exercises its competence in respect of “programming, supervising and coordinating” activities of special services, namely the Internal Security Agency, the Intelligence Agency, the Military Counter-Intelligence Agency (Służba Kontrwywiadu Wojskowego), the Military Intelligence Agency (Służba Wywiadu Wojskowego) and the Central Anti-Corruption Bureau (Centralne Biuro Antykorupcyjne), as well as activities undertaken in view of State security by the police, the Border Guard, the Military Police, the Prison Service, the Office for the Government Protection, the Customs, military information services and the tax authorities.
The Committee comprises the Prime Minister, Secretary to the Committee, the Minister for the Interior, the Minister for Foreign Affairs, the Minister for Defence, the Minister for the Treasury and the Head of the
National Security Bureau (Biuro Bezpieczeństwa Narodowego) from the President of Poland’s Chancellery. The Heads of the Internal Security Agency, the Intelligence Agency, the Military Counter-Intelligence Agency, the Military Intelligence Agency, the Central Anti-Corruption Bureau and the President of the Parliamentary Committee for Special Services attend the Committee’s meetings (section 12(2)-(3)).
198. Under section 18(1), the Heads of the Internal Security Agency and the Intelligence Agency, each within his competence, have a duty “to supply promptly” the President of the Republic of Poland and the Prime Minister with any information that may have a vital importance for Poland’s security and its international position.
199. The Head of the Intelligence Agency may allow officers or staff members to supply classified information to a specific person or institution (section 39). He has full discretion in granting or refusing the disclosure of classified information. Only if so ordered by the First President of the Supreme Court in the review procedure under section 39(6) is he obliged to disclose classified information. This exception, however, is limited to proceedings for crimes against peace, crimes against humanity and war crimes referred to in Article 105 § 1 of the Criminal Code (see paragraph 181 above) and serious fatal offences.
Section 39(6) reads, in so far as relevant, as follows:
“If, despite a request from a court or prosecutor made in connection with criminal proceedings for an offence defined in Article 105 § 1 of the Criminal Code or serious offence against human life or an offence against life and health causing death, [the head of the Intelligence Agency] has refused to exempt an officer or staff member ... from his duty to maintain secrecy of materials classified ‘secret’ or ‘top secret’ or refused to disclose materials ... classified ‘secret or ‘top secret’, he shall submit the materials requested and [his] explanation to the First President of the Supreme Court.
If the First President of the Supreme Court finds that granting the court’s or the prosecutor’s request is necessary for the proper course of the proceedings, the head of ... the Intelligence Agency is obliged to issue an exemption from secrecy or to disclose materials covered by secrecy.”
V. RELEVANT INTERNATIONAL LAW