O dopuszczalności prowadzenia czynności operacyjno-rozpoznawczych w jednostkach penitencjarnych
Authors: Piotr Herbowski  
Published: July 2024

For many years, a number of concerns in Poland have been raised about thepossibility of conducting operational-identification activities in police custody andpenal institutions by services responsible for public order. Sometimes even alarmingviewpoints have been formulated about the lack of such activities since the end of the1980s. Appearing in connection with this are postulates about renewed adoption ofthese activities in the Polish prison system. However, this testifies above all to a lack offamiliarity with the field of interest in services eligible for operational activities. Thisalso leads to introducing wider scientific analysis which cannot however restrict itselfto only easily accessible aspects of this topic.Besides the supporters of such activities, there are also determined opponents, andtheir counter accusations are very serious. Operational-identification activities carriedout in penitentiary institutions, in their opinion, adversely affect the achievement of thegoals of imprisonment, as well as the course of the criminal process, and even violate therights of the incarcerated. However, the authors of such statements do not support themwith factual arguments. It seems they result to some extent from negative experiencesendured during the communist era. But one cannot compare the circumstancesand conditions under which activities were carried out in penitentiaries before andafter 1989. So there is no question of returning to practices from the communist era.The sources of this attitude should also be sought, amongst others, in the mistakenperception of operational activities carried out by officers of the prison services. It isnot currently possible, as this would result in a lack of confidence of the condemned inpsychologists and educators, and would consequently thwart their rehabilitation efforts. There currently does not exist any legal basis in the executory penal code allowingthe exclusion of imprisoned individuals from the circle of interest of law enforcementagencies which may exhibit an eagerness to use them in the character of sources of personal information. Nor is there a completely voluntary, above all secret, methodof co-operation for those temporarily arrested and imprisoned with national services,that would rely predominantly on conveying information that interests them, thusdiscerning a contradiction in the rules of the performance of a punishment. The reported postulates for introducing limits in the course of completingoperational-identification activities in penitentiary units have a very generalcharacter and indicate only theoretical acquaintance with the issue. It also seemsthey groundlessly assume ill will and non-observance of the rules of law and orderin the activities for their implementation by police and special services. Operationalactivities are sometimes ethically questionable, but also necessary to fight crime effectively, especially the organised variety. Nor can one forget that the activities of lawenforcement agencies seeking to uncover culprits demand making use of others, whoare often less loyal than in the proceedings of criminal methods. Poland’s constitutionallows for the limiting of the use of rights and civic freedoms when it is essential in thedemocratic state for its safety or to maintain public order, be it for the protection of theenvironment, health and public morality, or for the freedom and rights of other people. Operational-identification activities carried out in penitentiary units satisfactorily passso-called tests of legality, appropriateness and necessity as well as fulfilling a statutoryrequirement for a legal basis for authorising interference in the rights and freedoms ofcitizens.It should be explicitly stated that currently there is a lack of any limits linked tothe location of carrying out operational-identification activities. In connection withthis, all authorised services can also carry them out in penitentiary units, both prisonsand detention centres, without the prison services mediating. This mainly results fromduties put into place by legislators for police and special services that protect the formsand methods used in the course of operational-identification activities. Even if thisduty did not exist, operating officers would certainly not be willing to work with prisonservice officers, fearing the unmasking of their undertaken actions. Among the operational methods used by services authorised to carry them out,the greatest collection of knowledge about criminal groups, including their activitiesand plans, can be gained thanks to co-operation with personal sources of information.It is precisely this method that serves in most cases when acquiring information inpenitentiary units. In practice, however, working with informants sitting in detentioncentres and penal institutions has a subsidiary character, since information is onlyacquired when doing it any other way would be very difficult or even impossible. This iscaused above all by essential problems connected to the appropriate selection, drawingup and carrying out of recruitment or the handling of sources. Therefore, operationalwork in penitentiary units does not have the nature of permanent surveillance.The essential benefits associated with obtaining information from incarceratedpeople have also been demonstrated for many years in countries with establisheddemocracies, such as the US and Canada. This is something which has unfortunatelyescaped the attention of Polish critics of such activities.