Who oversees Poland’s special services

Which services are “special”

The Act on the ABW and the AW counts five institutions as special services: the Internal Security Agency, the Foreign Intelligence Agency, the Military Counterintelligence Service, the Military Intelligence Service and the Central Anti-Corruption Bureau (Art. 11). The Sejm Special Services Committee covers the same five (Art. 142(2) of the Standing Orders of the Sejm).^1,3

The Constitution provides that the Sejm oversees the activity of the Council of Ministers within the scope set by the Constitution and statutes (Art. 95(2)). The statutes on the services say expressly that the activity of the heads of the ABW and the AW (Art. 3(3) of the Act on the ABW and the AW) and of the heads of the SKW and the SWW (Art. 3 of the Act on the SKW and the SWW) is subject to oversight by the Sejm.^1,2,6

The Constitution also protects private life (Art. 47) and guarantees freedom and privacy of communication, which may be limited only in cases and in a manner set out in statute (Art. 49). Operational control, described below, is one such statutory exception.⁶

Government: the Prime Minister, the coordinating minister and the College

The Heads of the ABW and the AW are central organs of government administration and report directly to the Prime Minister (Art. 3(1)–(2)). The Prime Minister sets the agencies’ lines of action in guidelines, and the heads submit annual action plans and, by 31 January, reports on their activity (Art. 7). The Heads of the SKW and the SWW report to the Minister of National Defence (Art. 3 of the Act on the SKW and the SWW).^1,2

The Prime Minister may appoint a minister coordinating the special services. At that minister’s request the Prime Minister issues binding guidelines to the ABW, AW, SKW and SWW (Art. 13(2)), and may authorise the minister to demand information from the heads of the services (Art. 13(6)–(7)).¹

The College for Special Services (Kolegium do Spraw Służb Specjalnych) operates under the Council of Ministers – in the words of the statute, an advisory body on programming, supervising and coordinating the services’ activity (Art. 11). It is chaired by the Prime Minister; its members are the ministers responsible for internal affairs, foreign affairs, national defence and public finance, and the Head of the National Security Bureau. Its secretary must hold security clearance for “top secret” information (Art. 12(2) and (6)).¹

The College gives opinions on, among other things, the appointment and dismissal of the heads of the five services, their lines and plans of work, draft budgets, annual reports and cooperation with foreign services (Art. 12(1)). The heads of the ABW, AW, CBA, SKW and SWW and the chair of the Sejm Special Services Committee attend its meetings without being members (Art. 12(3)).¹

The Sejm: a committee behind closed doors

The Special Services Committee was added to the Standing Orders of the Sejm by a resolution of 27 April 1995; the special services at the time were the UOP and the WSI.⁷

Today the committee is governed by Arts 137–142 of the Standing Orders. It has no more than seven deputies. Candidates are put forward by the chairs of parliamentary clubs or by a group of at least 35 deputies, and the Sejm elects the members on a motion of its Presidium, after consulting the Council of Seniors (Art. 137). Its sittings are closed (Art. 139(1)), and it decides by an absolute majority with at least half of its members present (Art. 138(2)).³

The committee gives opinions on draft statutes, regulations and orders concerning the services, on their lines of work and on candidates for heads and deputy heads; it examines the heads’ annual reports, takes part in work on the budget bill (Art. 140) and examines complaints. It also receives information on significant events in the services’ activity, including suspected irregularities and breaches of the law.³

The Prime Minister appoints and dismisses the Heads of the ABW and the AW after seeking the opinion of the President, the College and the Sejm committee (Art. 14(1) of the Act on the ABW and the AW). According to the ABW, the Prime Minister and the Head of the ABW must provide information and explanations at the request of standing and extraordinary committees of the Sejm.^1,3

Court and prosecutor: consent to operational control

Operational control by the ABW is ordered by the Regional Court in Warsaw on a written application from the Head of the ABW, made after obtaining the written consent of the First Deputy Prosecutor General – National Prosecutor (Art. 27(1)–(2)). In urgent cases the head may order it himself, with the same consent, but if the court does not approve it within 5 days the control is stopped and the material destroyed (Art. 27(3)).¹

Control is ordered for no more than 3 months; the court may extend it once by a further 3 months and, if new circumstances arise, for further periods of up to 12 months (Art. 27(8)–(9)). Material that is irrelevant to state security or does not confirm an offence is destroyed under a formal record (Art. 27(16)), and the prosecutor is informed of the results (Art. 27(14)).¹

For the SKW, operational control is ordered by the Military Regional Court in Warsaw (Art. 31 of the Act on the SKW and the SWW). Within Poland the SWW may carry out such measures only through the SKW or the ABW (Art. 6(3)).²

A separate procedure covers telecommunications, postal and internet data (not the content of messages). The Head of the ABW keeps a register of such requests (Art. 28(5)) and every six months sends the Regional Court in Warsaw a report on the number of cases, the types of data and the legal classification of the offences; the court may examine the material and informs the head of the result within 30 days (Art. 28a). For the SKW this review is carried out by the Military Regional Court in Warsaw (Art. 32a).^1,2

The Supreme Audit Office, the Commissioner for Human Rights and the Constitutional Tribunal

The Supreme Audit Office (NIK) is the supreme organ of state audit (Art. 1(1) of the Act on the NIK) and audits the activity of organs of government administration (Art. 2(1)) for legality, economy, purposefulness and reliability (Art. 5(1)). The Heads of the ABW and the AW are such organs (Art. 3(1) of the Act on the ABW and the AW). Auditing matters and documents classified “top secret” requires a separate authorisation from the President of the NIK (Art. 30(5) of the Act on the NIK).^1,4

The Commissioner for Human Rights (Rzecznik Praw Obywatelskich, RPO) safeguards the freedoms and rights of persons and citizens (Art. 208(1) of the Constitution), is independent and answers only to the Sejm (Art. 210). Anyone may ask the Commissioner for help in protecting rights infringed by public authorities (Art. 80).⁵

In its judgment of 30 July 2014 (K 23/11), on joined applications from the Commissioner and the Prosecutor General, the Constitutional Tribunal held unconstitutional the provisions on obtaining telecommunications data insofar as they provided for no independent oversight. It also struck down, among other things, the lack of a duty to delete data irrelevant to proceedings in the Acts on the ABW, the CBA and the SKW. The provisions were to lose force 18 months after the judgment was published.⁸

In a letter to the Minister of the Interior of 6 January 2023, the Commissioner argued that a prosecutor subordinate to the Prosecutor General cannot be regarded as an independent body, and called for a person subjected to operational control not to be wholly deprived of the right to appeal against the court’s consent.⁹

How others do it

In the United Kingdom the agencies are overseen by the Intelligence and Security Committee of Parliament. Under the Justice and Security Act 2013 it has nine members drawn from both Houses and appointed by the House they come from; each must be nominated by the Prime Minister after consulting the Leader of the Opposition, and may not be a Minister of the Crown (section 1). See MI5, SIS and GCHQ.¹⁰

In the United States the turning point was the Church Committee, set up by the Senate on 27 January 1975 by 82 votes to 4. It investigated the CIA, the FBI, the NSA and the IRS, among others, and its final report of 29 April 1976 contained 96 recommendations. Senate Resolution 400 created the permanent SSCI; the Senate voted for it on 19 May 1976.^11,12

In 1978 Congress passed FISA: for surveillance for foreign intelligence purposes the executive must obtain a warrant from the newly created FISA Court. In Poland consent to operational control is given by regional courts in Warsaw – civilian or military.^1,2,11