Prepared pursuant to: Dz. U No. 104, item 708, No. 158, item 1122 ACT of 9 June 2006 on the Central Anticorruption Bureau 1

Transcription

1 Prepared pursuant to: Dz. U No. 104, item 708, No. 158, item 1122 ACT of 9 June 2006 on the Central Anticorruption Bureau 1 1 This Act shall amend the following acts: the Act of 15 February 1962 on Polish Citizenship, the Act of 17 November 1964 the Code of Civil Procedure, the Act of 17 June 1966 on Executory Procedures in Administration, the Act of 21 November 1967 on General Compulsory Military Service of the Republic of Poland, the Act of 10 April 1974 on Population Records and Identity Cards, the Act of 26 June 1974 the Labor Code, the Act of 6 July 1982 on Legal Councilors, the Act of 14 July 1983 on the National Archival Resources and Archives, the Act of 14 March 1985 on the State Sanitary Inspection, the Act of 21 March 1985 on Public Roads, the Act of 25 July 1985 on Research-and Development Units, the Act of 6 April 1990 on the Police, the Act of 21 June 1990 on Return of benefits Unjustly Acquired at the Cost of the State Treasury or other State Legal Persons, the Act 0f 12 October 1990 on the Border Guard, the Act of 23 May 1991 on Settling Collective Disputes, the Act of 26 July 1991 on Personal Income Tax, the Act of 24 August 1991 on the State Fire Guard, the Act of 28 September 1991 on Fiscal Control, the Act of 19 October 1991 on Management of Agricultural Assets of the State Treasury, the Act of 16 October 1992 on Orders and Distinctions, the Act of 10 December 1993 on Old Age Provision for Soldiers and Their Families, the Act of 18 February 1994 on Old Age Provision of Functionaries of the Police, the Internal Security Agency, the Intelligence Agency, the Border Guard, the Government Protection Bureau, the State Fire Guard and Prison Service and Their Families, the Act of 22 June 1995 on Quartering of Armed Forces of the Republic of Poland, the Act of 13 October 1995 on the Principles of Recording and Identifying Taxpayers and Remitters, the Act of 26 April 1996 on the Prison Service, the Act of 9 May 1996 on Exercising the Mandate of Parliamentary Deputy and Senator, the Act of 10 April 1997 the Energy Law, the Act of 11 April 1997 on Disclosing Work or Service in State Security Organs or Cooperation With Such in the Years of Persons Performing Public Functions, the Act of 6 June 1997 the Penal Execuroty Code, the Act of 6 June 1997 the Code of Penal Procedure, the Act of 20 June 1997 the Law on Road Traffic, the Act of 21 August 1997 on Limitation of Conducting of Commercial Activity by Persons Performing Public Functions, the Act of 21 August 1997 on Real Estate Management, the Act of 22 August 1997 on Protection of Persons and property, the Act of 28 August 1997 the Tax Ordinance Act, the Act of 29 August 1997 the Banking Law, the Act of 29 August 1997 on the Protection of Personal Data, the Act of 4 September 1997 on Government Administration Divisions, the Act of 12 December 1997 on Additional Annual Remuneration for Employees of Budgetary Units, the Act of 13 October 1998 on the Social Insurance System, the Act of 17 December 1998 on Old Age and Disability Pensions from the Social Insurance Fund, the Act of 18 December 1998 on the Institute of National Remembrance the Commission for the Prosecution of Crimes against the Polish Nation, the Act of 22 January 1999 on the Protection of Classified Information, the Act of 7 May 1999 on Proprietary Liability of Functionaries of the Police, the Border Guard, the Government Protection Bureau, the State Fire Guard, the Prison Service and the Internal Security Agency and the Intelligence Agency, the Act of 21 May 1999 on Arms and Ammunition, the Act of 24 July 1999 on the Customs Service, the Act of 10 September 1999 the Fiscal Penal Code, the Act of 23 December 1999 on Modeling Remuneration in the State Budgetary Sphere and on Amendments to Certain Acts, the Act of 24 May 2000 on the National Penal Register, the Act of 20 July 2000 on Reporting Normative Acts and Certain Other Legal Acts, the Act of 16 November 2000 on Counteracting the Introduction to Financial Trading of Proprietary Values Derived from Illegal or Undisclosed Sources and on Counteracting Financial Terrorism, the Act of 29 November 2000 the Atomic Law, the Act of 21 December 2000 on Technical Surveillance, the Act of 16 March 2001 on the Government Protection Bureau, the Act of 6 July 2001 on Gathering, Processing and Conveying Criminal Information and on the National Informatic System, the Act of 24 May 2002 on the Internal Security Agency and the Intelligence Agency, the Act of 21 June 2002 on Explosives Appropriated for Civil Use, the Act of 3 July 2002 the Aviation Law, the Act of 12 June 2003 the Postal Law, the Act of 13 June 2003 on Foreigners, the Act of 28 November 2003 on Family Benefits, the Act of 20 April 2004 on Promotion of Employment and Institutions of the Labor Market, the Act of 16 July 2004 the Telecommunications Law, the Act of 30 July 2004 on the Salary of Deputies to the European Parliament Elected in the Republic of Poland, the Act of 27 August 2004 on Health Care Services Financed from Public Funds, the Act of 20 May 2005 on Additional Cash Payments for Certain Old Age and Disability Pensioners and Persons Collecting a Pre-Retirement Benefit or a Pre-Retirement Allowance, the Act of 30 June 2005 on Public Finances, the Act of 27 July 2005 the Law on Higher Education and the Act of 29 July 2005 on Trading in Financial Instruments.

2 Chapter 1 General Provisions Art The Central Anticorruption Bureau, hereinafter referred to as "CBA," shall be established as a special service for matters concerning combating corruption in public and economic life, and in particular in state and local-government institutions, and for combating activity that undermines the economic interests of the State. 2. The name Central Anticorruption Bureau and its abbreviated form "CBA" may be used solely for the Central Anticorruption Bureau. 3. Corruption, in the meaning herein, shall be defined as promising, proposing, giving, demanding, accepting by any person, directly or indirectly, of any undue material gain, personal or other, for that person himself or for any other person, or the acceptance of a proposal or promise of such gains in exchange for an action or abandonment of an action in the performance of a public function or in the course of commercial activity. 4. An action that undermines economic interests of the State, in the meaning herein, shall also consist of any conduct that may cause in assets of: 1) a unit of the public finance sector in the meaning of the Act of 30 June 2005 on Public Finances (Dz. U. No. 249, item 2104 and No. 169, item 1420 and 2006 No. 45, item 319); 2) a unit not classified to the public finance sector, receiving public funds; 3) an enterprise with the participation of the State Treasury or a local government unit - significant damage in the meaning of art of the Act of 6 June 1997 the Penal Code (Dz. U. No. 88, item 553, with subsequent amendments 2 ). Art The following shall be responsibilities of the CBA, within the competence defined in art. 1 para. 1: 1) examination, prevention and detection of offenses against: a) the activity of state institutions and local government, defined in art of the Act of 6 June 1997 the Penal Code, as well as referred to in art. 14 of the Act of 2 Amendments to the Act referred to were published in Dz. U No. 128, item 840, 1999 No. 64, item 729 and No. 83, item 931, 2000 No. 48, item 548, No. 93, item 1027 and No. 116, item 1216, 2001 No. 98, item 1071, 2003 No. 111, item 1061, No. 121, item 1142, No. 179, item 1750, No. 199, item 1935 and No. 228, item 2255, 2004 No. 25, item 219, No. 69, item 626, No. 93, item 889 and No. 243, item 2426 and 2005 No. 86, item 732, No. 90, item 757, No. 132, item 1109, No. 163, item 1363, No. 178, item 1479 and No. 180, item

3 21 August 1997 on Limitation of Conducting of Commercial Activity by Persons Performing Public Functions (Dz. U. No. 106, item 679, with subsequent amendments 3 ), b) the judiciary, defined in art. 233, elections and referendums, defined in art. 250a, public order, defined in art. 258, credibility of documents, defined in art , property, defined in art. 286, commercial trading, defined in art and 299, trading in cash and securities, defined in art. 310 of the Act of 6 June 1997 the Penal Code, as well as referred to in art of the Act of 15 September 2000 the Code of Commercial Companies (Dz. U. No. 94, item 1037, with subsequent amendments 4 ) and defined in art of the Act of 29 July 2005 on Trading in Financial Instruments (Dz. U. No. 183, item 1538), if these are related to corruption or activity undermining the economic interests of the State, c) financing political parties, defined in art. 49d and 49f of the Act of 27 June 1997 on Political Parties (Dz. U No. 79, item 857, with subsequent amendments 5 ), if these are related to corruption, d) tax obligations and settlements concerning subsidies and subventions, defined in chapter 6 of the Act of 10 September 1999 the Fiscal Penal Code (Dz. U. No. 83, item 930, with subsequent amendments 6 ), if these are related to corruption or activity undermining the economic interests of the State - and prosecution of the perpetrators of these; 2) disclosing and combating cases of non-observance of the provisions of the Act of 21 August 1997 on Limitation of Conducting of Commercial Activity by Persons Performing Public Functions; 3) documenting the grounds and initiating implementation of the provisions of the Act of 21 June 1990 on Return of Benefits Unduly Acquired at the Cost of the State Treasury or Other State Legal Persons (Dz. U. No. 44, item 255, with subsequent amendments 7 ); 4) disclosing cases of non-observance of procedures, defined by legal regulations, of making and implementing decisions concerning: privatization and commercialization, financial support, awarding public contracts, management of assets of units or enterprises referred to in art. 1 para. 4 and awarding licenses, permits, exemptions 3 Amendments to the Act referred to were published in Dz. U No. 113, item 715 and No. 162, item 1126, 1999 No. 49, item 483, 2000 No. 26, item 306, 2002 No. 113, item 984 and No. 214, item 1806, 2003 No. 137, item 1302 and 2005 No. 169, item Amendments to the Act referred to were published in Dz. U No. 102, item 1117, 2003 No. 49, item 408 and No. 229, item 2276 and 2005 No. 132, item 1108, No. 183, item 1538 and No. 184, item Amendments to the Act referred to were published in Dz. U No. 154, item 1802, 2002 No. 127, item 1089, 2003 No. 57, item 507, 2004 No. 25, item 219 and No. 273, item 2703 and 2005 No. 167, item Amendments to the Act referred to were published in Dz. U No. 60, item 703 and No. 62, item 717, 2001 No. 11, item 82 and No. 106, item 1149, 2002 No. 41, item 365, No. 74, item 676, No. 89, item 804, No. 141, item 1178 and No. 213, item 1803, 2003 No. 84, item 774, No. 137, item 1302 and No. 162, item 1569, 2004 No. 29, item 257, No. 68, item 623, No. 93, item 894, No. 97, item 963 and No. 173, item 1808 and 2005 No. 130, item 1090, No. 143, item 1199, No. 177, item 1468 and No. 178, item Amendments to the Act referred to were published in Dz. U No. 75, item 331, 1993 No. 16, item 67 and No. 134, item 647, 2001 No. 4, item 24 and 2005 No. 167, item

4 addressed to specific entities or for specific cases, rebates, preferences, quotas, ceilings, credit guarantees; 5) control of correctness and truthfulness of asset declarations or declarations on conducting commercial activity by persons performing public functions, referred to in art of the Act of 6 June 1997 the Penal Code, submitted pursuant to separate regulations; 6) conducting analytical activity concerning phenomena occurring within the competence of the CBA and presenting information on this to the Prime Minister, the President of the Republic of Poland, the Sejm (Parliament) and the Senate. 2. The CBA shall collaborate within the area of its competence with international organizations under international agreements and covenants and separate regulations. 3. The CBA may conduct preparatory proceedings embracing all acts disclosed during these, if these are associated in the entity or subject matter with the act constituting the basis for their institution. 4. The activity of the CBA outside the borders of the Republic of Poland may be conducted in connection with its activity within the territory of the State solely within the area of implementing the tasks defined in para. 1 subpara. 1. Art. 3. Government administration organs, local government organs and state institutions shall be obliged to cooperate with the CBA, within the scope of their operation, and in particular to provide assistance in carrying out tasks of the CBA. Art The activity of the CBA shall be financed from the state budget. 2. The costs of execution of tasks of the CBA for which due to the exclusion of their openness the provisions on public finances, accountancy and public procurement cannot be applied, shall be financed from the operating fund established for this purpose. 3. The Head of the Central Anticorruption Bureau shall define by an order the manner of establishment and management, as State secrecy, of the operating fund referred to in para. 2. Chapter 2 The Organization of the Central Anticorruption Bureau Art. 5. 4

5 1. The CBA shall be headed by the Head of the Central Anticorruption Bureau, hereinafter referred to as "Head of the CBA." 2. The Head of the CBA shall be a central organ of government administration supervised by the Prime Minister, operating with the assistance of the CBA, which is an organ of government administration. [The Prime Minister or a member of the Council of Ministers designated by him, shall coordinate the activity of the CBA, the Internal Security Agency, the Intelligence Agency and the Military Information Services.] <3. The Prime Minister or member of the Council of Ministers designated by him shall coordinate the activity of the CBA, the Internal Security Agency, the Intelligence Agency, the Military Counter-Intelligence Service and the Military Intelligence Service.> new reading of para. 3 in art. 5 shall enter into force 20 Sep (Dz. U No. 158, item 1122) Art The Head of the CBA shall be appointed and recalled for a four-year term by the Prime Minister, after consulting the President of the Republic of Poland, the Board for Special Services and the Sejm committee for special services. 2. The Head of the CBA may be reappointed only once. The Head of the CBA shall perform his duties until the day his successor is appointed. 3. The term of office of the Head of the CBA shall expire in the case of his death or of being recalled. 4. The Prime Minister, at the request of the Head of the CBA, shall appoint and recall deputies of the Head of the CBA. Art The Head of the CBA or Deputy Head of the CBA must be a person that: 1) has solely Polish citizenship; 2) fully enjoys public rights; 3) demonstrates an unblemished moral, civic and patriotic attitude; 4) has not been sentenced for an offense committed intentionally, prosecuted by public accusation or for a fiscal offense; 5

6 5) meets the requirements defined in the regulations on the protection of classified information concerning access to information constituting a State secret, marked as "top secret;" 6) has a higher education; 7) has not performed professional service, has not worked and has not been a co-worker of the State security organs listed in art. 5 of the Act of 18 December 1998 on the Institute of National Remembrance the Commission for the Prosecution of Crimes against the Polish Nation (Dz. U. No. 155, item 1016, with subsequent amendments 8 ), and has not been a judge that, when adjudicating transgressed the dignity of the office, misappropriating independence of the judiciary. 2. The function of Head of the CBA shall not be combined with another public function. 3. The Head of the CBA or Deputy Head of the CBA shall not remain in an employment relationship with another employer, or take up any other wage-earning occupation apart from the service. 4. The Head of the CBA or Deputy Head of the CBA shall not be a member of a political party, or take part in activity of such a party or for the benefit of such a party. Art. 8. The Head of the CBA shall be recalled from his office in the following cases: 1) resignation from the post held; 2) failure to fulfill any of the conditions specified in art. 7; 3) failure to perform his duties due to an illness lasting uninterruptedly for more than 3 months. Art. 9. In the case of recalling the Head of the CBA from his post, or his temporary inability to perform his duties, the Prime Minister may entrust the performance of the duties of the Head, for a time not longer than 3 months, to his deputy or to another person that fulfills the conditions specified in art. 7. Art The Head of the CBA shall manage the CBA directly or through his deputies. 8 Amendments to the Act referred to were published in Dz. U No. 38, item 360, 2000 No. 48, item 553, 2002 No. 74, item 676 and No. 153, item 1271, 2003 No. 139, item 1326 and 2005 No. 64, item 567 and No. 222, item

7 2. The Head of the CBA may authorize subordinated functionaries to deal with matters in his name within a specific scope, with the exception of the matters referred to in art. 17, 19 and The Head of the CBA shall specify by an order the manners, methods and forms of performing tasks by the CBA. Art The Prime Minister shall confer by an order on the CBA the charter which lays down the internal organization of the CBA. 2. The Head of the CBA shall confer by orders organizational bye-laws on organizational units of the CBA, in which he shall lay down their internal structure and detailed tasks. 3. The Head of the CBA shall lay down by an order the forms and procedure of training of functionaries of the CBA. 4. The Head of the CBA may create standing or ad hoc teams, specifying their name, the members and the detailed scope and procedure of operation. Art The Prime Minister shall outline the directions of activity of the CBA by way of guidelines. 2. The Head of the CBA, 2 months before the end of the calendar year at the latest, shall present to the Prime Minister for approval the annual plan of operation of the CBA for the following year. 3. The Head of the CBA shall present each year, by 31 March, to the Prime Minister and to the Sejm Committee for Special Services, a report on the activity of the CBA for the preceding calendar year. 4. The Head of the CBA shall present each year, by 31 March, to the Sejm and to the Senate, information on the results of activity of the CBA, with the exception of the information for which regulations on the protection of classified information apply. Chapter 3 The Powers of Functionaries of the Central Anticorruption Bureau Art Within the scope of tasks referred to in art. 2, functionaries of the CBA shall perform: 7

8 1) operating and reconnaissance actions to prevent the commitment of offenses, for the purpose of their examination and detection and when there exists a justified suspicion of commitment of an offense investigation and inquiry actions to prosecute perpetrators of offenses; 2) inspection actions to disclose cases of corruption in state institutions and in local government and misuses of persons performing public functions, as well as activity undermining the economic interests of the State; 3) operating and reconnaissance actions as well as analytical and information actions for the purpose of acquiring and processing information of significance for combating corruption in state institutions and in local government and combating activity harming the economic interests of the State. 2. The CBA shall also perform actions on the instruction of a court or prosecutor within the scope specified in the Act of 6 June 1997 the Code of Penal Procedure (Dz. U. No. 89, item 555, with subsequent amendments 9 ) and in the Act of 6 June 1997 the Penal Executory Code (Dz. U. No. 90, item 557, with subsequent amendments 10 ). 3. Functionaries of the CBA shall perform actions solely within the competence of the CBA and within this scope they shall be entitled to the procedural rights of the Police, resulting from the provisions of the Act of 6 June 1997 the Code of Penal Procedure. 4. Functionaries of the CBA, while performing the actions referred to in para. 1 and 2 shall be obliged to respect human dignity and observe and protect human rights irrespective of a person's nationality, origin, social situation, political and religious or philosophical outlook. Art Functionaries of the CBA, when performing actions to implement tasks referred to in art. 2 para. 1 subpara. 1, shall have the right to: 1) issue instructions to persons for specific conduct, within the limits necessary to perform the actions referred to in subpara. 2-5; 2) check identity papers of persons to determine their identity; 9 Amendments to the Act referred to were published in Dz. U No. 83, item 931, 2000 No. 50, item 580, No. 62, item 717, No. 73, item 852 and No. 93, item 1027, 2001 No. 98, item 1071 and No. 106, item 1149, 2002 No. 74, item 676, 2003 No. 17, item 155, No. 111, item 1061 and No. 130, item 1188, 2004 No. 51, item 514, No. 69, item 626, No. 93, item 889, No. 240, item 2405 and No. 264, item 2641 and 2005 No. 10, item 70, No. 48, item 461, No. 77, item 680, No. 96, item 821, No. 141, item 1181, No. 143, item 1203 and No. 163, item Amendments of the Act referred to were published in Dz. U No. 160, item 1083, 1999 No. 83, item 931, 2000 No. 60, item 701, No. 120, item 1268 and No. 122, item 1318, 2001 No. 98, item 1071, No. 111, item 1194 and No. 151, item 1686, 2002 No. 74, item 676, No. 121, item 1033 and No. 200, item 1679, 2003 No. 111, item 1061, No. 142, item 1380 and No. 179, item 1750, 2004 No. 93, item 889, No. 210, item 2135, No. 240, item 2405, No. 243, item 2426 and No. 273, item 2703 and 2005 No. 163, item

9 3) detain persons in the procedure and in the cases specified in the provisions of the Code of Penal Procedure; 4) search persons and premises in the procedure and in the cases specified in the provisions of the Code of Penal Procedure; 5) perform a personal inspection, search the contents of luggage and stop vehicles and other transport means and check freight in land, air and water transport means, in the case of occurrence of a justified suspicion of commitment of an offense or a fiscal offense; 6) observe and register, with the use of technical means, of a picture of events in public places with the sound accompanying these events in the course of performing operating and reconnaissance actions taken pursuant to this Act; 7) demand essential assistance from state institutions, organs of government administration and local government and enterprises conducting public utility activity; the said institutions, organs and enterprises shall be obliged, within the scope of their operation, to provide this assistance without payment, under the legal regulations in force; 8) turn for necessary assistance to enterprises, organizational units and social organizations other than those specified in subpara. 7, as well as to turn to any person for assistance, under the legal regulations in force. 2. A person detained or that has been searched shall be entitled to the rights of a detained person or person whose rights have been violated, respectively, as envisaged in the provisions of the Code of Penal Procedure. 3. A person may be detained only when other measures have turned out to be futile or ineffective. 4. A person detained may be shown, photographed or subjected to dactyloscopy only when his identity cannot be established in another manner. 5. In the case of a justified need, a detained person shall be immediately subjected to a medical examination or provided with first aid treatment. 6. The actions referred to in para. 1 subpara. 1-6 should be performed in a manner that least violates the personal interests of the person with regard to whom they have been taken. 7. The manner of performing the actions referred to in para. 1: 1) subpara. 1, 2, 5, 7 and 8, within 7 days from the day of performing the actions, 2) subpara. 6, within 7 days from the day when the subject learned about the actions performed towards him 9

10 - may be complained against to the prosecutor competent for the place of performing the actions. For a complaint the provisions of 6 June 1997 the Code of Penal Procedure shall apply within the scope concerning appeals procedures. 8. Material from the actions referred to in para. 1 subpara. 6 that does not constitute information confirming the commitment of an offense or a fiscal offense shall be subject to immediate witnessed and recorded destruction. Destruction of material shall be ordered by the Head of the CBA. 9. The Prime Minister shall specify by a regulation the procedure of conducting the medical examinations referred to in para. 5, for persons detained by functionaries of the CBA. The regulation should specify the persons conducting the examinations and the organization and place of conducting the examinations, as well as the cases justifying the need to provide first aid to a detained person, with due regard for the health of the detained person. 10. The Council of Ministers shall specify by a regulation the detailed conditions of conducting and documenting the actions referred to in para. 1 subpara. 1-6, taking into consideration the manner of conducting actions by CBA functionaries, taken up within the statutory powers, and the obligations of functionaries during the execution of these actions. 11. The Council of Ministers shall specify by a regulation the detailed manner of conducting the actions referred to in para. 1 subpara. 7 and 8, taking into consideration the obligations of a CBA functionary demanding that help be provided or requesting such help. Art In the case of non-subordination to instructions issued pursuant to laws, serving to carry out the tasks referred to in art. 2 para. 1 subpara. 1, CBA functionaries may apply physical, technical and chemical measures of direct coercion, serving to disable or escort persons or to stop vehicles. 2. In the cases specified in para. 1, only coercive measures corresponding to the needs resulting from the existing situation and essential for reaching subordination to issued commands may be applied. 3. The Council of Ministers shall specify by a regulation the types of measures of direct coercion referred to in para. 1 and the cases and manner of their application, as well as the manner of documenting cases of their application, taking into consideration the protection of interests of the persons for whom these measures are applied. Art If the direct coercion measures referred to in art. 15 para. 1 turn out to be inadequate, or their application is not possible due to the circumstances of the given event, the CBA functionary shall have the right to use fire arms solely: 10

11 1) for the purpose of repelling a direct and unlawful attempt against life, health or freedom of a functionary or of another person, or to counteract actions directly aiming at such an attempt; 2) against a person not subordinating himself to the call for immediate abandonment of arms or another dangerous tool the use of which may pose a threat to life, health or freedom of a functionary or of another person; 3) against a person who is unlawfully attempting to forcefully take away fire arms from a functionary or from another person authorized to possess them; 4) to repel an unlawful direct, violent assault against facilities or equipment of importance for State security or defense, against the seats of supreme organs of authority, chief and central organs of State administration or the judiciary, against facilities of the national economy or culture and against diplomatic missions and consular offices of foreign states or international organizations, as well as against facilities supervised by an armed protective formation created pursuant to separate regulations; 5) to repel an attempt against property, creating simultaneously a direct threat to human life, health or freedom; 6) in direct pursuit after a person towards whom the use of arms had been admissible in the cases specified in subpara. 1-3 and 5, or after a person towards whom there exists a justified suspicion of commitment of a murder, a terrorist attempt, kidnapping for the purpose of extorting a ransom or specific behavior, robbery, robbery with violence, extortion with violence, intentional grave bodily injury, rape, arson or intentional inducement in another manner of a general hazard to life or health; 7) to apprehend a person referred to in subpara. 6 if he has hidden himself in a place difficult to access and circumstances indicate that he may use fire arms or another hazardous tool the use of which may pose a threat to human life or health; 8) to repel a violent, direct and unlawful attempt against a convoy protecting persons, documents containing information constituting a State secret, money or other valuables; 9) to apprehend or foil an escape of a detained, temporarily arrested person, or person serving a penalty of deprivation of liberty, when: a) the escape of the person deprived of liberty creates a threat to human life or health, b) there exists a justified suspicion that the person deprived of liberty may use fire arms, explosives or a dangerous tool, c) the deprivation of liberty occurred in connection with a justified suspicion or determination of commitment of the offenses referred to in subpara

12 2. The use of fire arms should take place in a manner causing the smallest possible damage to the person against whom the arms were used and shall not aim to deprive him of life, or to expose other persons to the threat of loss of life or health. 3. The Council of Ministers shall specify by a regulation the conditions and manner of conduct, adjusted to the situation, regarding the use of fire arms, as well as the manner of documenting cases of use of fire arms. Art When performing operating and reconnaissance actions, taken up by the CBA to examine, prevent and detect offenses, as well as to obtain and record evidence of offenses: 1) specified in art , 250a, 258, 286, , 299, 310 1, 2 and 4 of the Act of 6 June 1997 the Penal Code; 2) fiscal offenses referred to in art. 2 para. 1 subpara. 1 let. d, when the value of the subject of the act or diminution of a public-law liability exceeds fifty times the amount of the minimum wage for work as defined under the provisions of the Act of 10 October 2002 on the Minimum Remuneration for Work (Dz. U. No. 200, item 1679, 2004 No. 240, item 2407 and 2005 No. 157, item 1314) - when other measures have turned out to be ineffective or when it is highly probable that they will be ineffective or useless, the court, on the written motion of the Head of the CBA, submitted after obtaining written consent of the Prosecutor General, may order an operating inspection by a decision. 2. The decision referred to in para. 1 shall be issued by the District Court in Warsaw. 3. In matters of great urgency, if this could cause loss of information, or obliteration or destruction of evidence of an offense, the Head of the CBA may order, after obtaining the consent of the Prosecutor General, an operating inspection, at the same time turning with a request to the court referred to in para. 2 to issue a decision in this matter. The court shall issue a decision in the matter of the request within 5 days. If the court does not give consent, the Head of the CBA shall halt the operating inspection and shall immediately order witnessed and recorded destruction of evidence material gathered during its application. 4. In the case of a need to order an operating inspection towards a suspect or a person being the defendant in another case, the motion of the Head of the CBA referred to in para. 1 shall include information on the pending proceedings concerning the suspect or this person. 5. An operating inspection shall be conducted in closed session and shall consist of: 1) inspection of the contents of correspondence; 2) inspection of the contents of postal matter; 12

13 3) application of technical measures to obtain in a secret manner information and evidence and to record this, and in particular the content matter of telephone calls and other information conveyed by way of telecommunication networks. 5. An operating inspection shall be documented in the form of a record within the scope related to the case. 6. The motion of the Head of the CBA referred to in para. 1 shall contain in particular: 1) the number of the case and its cryptonym, if such has been given; 2) a description of the offense with indication of its legal classification; 3) the circumstances justifying the need to apply an operating inspection, including determined or probable ineffectiveness or uselessness of other measures; 4) the particulars of the person or other data enabling explicit determination of the subject or object towards which an operating inspection is to be applied, with indication of the place and the manner of applying it; 5) the purpose, time and type of the conducted operating inspection. 8. An operating inspection shall be ordered for a period not longer than 3 months. The court referred to in para. 2 may, on the written motion of the Head of the CBA, submitted after obtaining written consent of the Prosecutor General, issue a decision on a one-time extension of the operating inspection, for a period not longer than another 3 months, if the reasons for ordering this inspection have not ceased to exist. 9. In justified cases, when during the application of an operating inspection there occur new circumstances of significance for the prevention or detection of an offense or the establishment of the perpetrator and for obtaining evidence of an offense, the court referred to in para. 2, on the written motion of the Head of the CBA, submitted after obtaining written consent of the Prosecutor General, may issue a decision on an operating inspection for a specified time also after the end of the periods referred to in para For requests referred to in para. 3, 8 and 9, the provision of para. 7 shall apply accordingly. Before issuing the decision referred to in para. 3, 8 and 9, the court shall become acquainted with the material justifying the request, gathered while applying the operating inspection ordered in this case. 11. Applications referred to in para. 1, 3, 8 and 9 shall be examined by the court in one-person session, where the court procedures associated with examination of these motions should be performed in conditions envisaged for transmission, safe-keeping and making available of classified information and with appropriate application of provisions issued pursuant to art of the Act of 6 June 1997 the Code of Penal Procedure. The court session may be attended solely by the prosecutor and the CBA functionary designated by the Head of the CBA. 13

14 12. Entities conducting telecommunication activity and entities authorized to conduct postal activity shall be obliged to ensure at their own cost the technical and organizational conditions enabling CBA to perform an operating inspection. 13. An operating inspection shall be completed immediately after cessation of the reasons for ordering it, not later than by the end of the period for which it has been introduced. 14. The Head of the CBA shall inform the Prosecutor General of the findings of an operating inspection upon completion thereof, and upon request also of the course of this inspection, presenting the material gathered during it. 15. In the case of obtaining evidence allowing for institution of penal proceedings or of significance for pending penal proceedings, the Head of the CBA shall forward to the Prosecutor General the material gathered during the operating inspection, if necessary with a request for institution of penal proceedings. In proceedings before the court, with regard to this material, the provision of the first sentence of the Act of 6 June 1997 the Code of Penal Procedure shall apply accordingly. 16. Material gathered during an operating inspection that is not information confirming the occurrence of an offense shall be subject to immediate witnessed and recorded destruction. Destruction of the material shall be ordered by the Head of the CBA. 17. The court decisions in the matter of operating inspection referred to in para. 1, 3, 8 and 9 may be complained against by the Head of the CBA. For a complaint the provisions of the Code of Penal Procedure shall apply accordingly. 18. The Prime Minister shall specify by a regulation the manner of documenting an operating inspection and safe-keeping and transmission of requests and orders, and of safe-keeping, transmission as well as processing and destruction of material acquired in the course of this inspection, taking into consideration the need to ensure secrecy of the undertaken actions and of the acquired material and the model forms of printed matter and registers used. Art The obligation of obtaining the court consent referred to in art. 17 shall not apply to information necessary for execution by the CBA of the tasks specified in art. 2, in the form of: 1) identity data of a subscriber, termination of network or telecommunication device and concerning the fact, circumstances and type of connection or attempt at obtaining a connection between specific telecommunication devices or network terminations; 2) data concerning identification and location of network terminations or telecommunication devices between which a connection has been made; 3) data identifying an entity using postal services and concerning the fact, circumstances of providing postal services or using these services. 14

15 2. An entity conducting telecommunication activity or an entity authorized to conduct postal activity shall make available data referred to in para. 1 without payment upon: 1) a written request of the Head of the CBA or a person authorized by him; 2) a verbal request of a CBA functionary with written authorization of the Head of the CBA. 3. An entity conducting telecommunication activity or an entity authorized to conduct postal activity shall inform the Head of the CBA on disclosure of data in the procedure specified in para. 2 subpara Entities conducting telecommunication activity and entities authorized to conduct postal activity shall be obliged to make available data referred to in para. 1 to CBA functionaries indicated in a request or authorization. 5. Information and data referred to in para. 1 may be requested and made available via a telecommunication network, in the manner established by the Head of the CBA. Art In cases concerning offenses specified in art. 17 para. 1, the operating and reconnaissance actions, aimed at checking earlier obtained credible information on an offense and detecting the perpetrators and obtaining evidence, may consist of secret acquisition or takeover of objects derived from an offense, subject to forfeiture, or the manufacture, possession, transport or trading of which is prohibited, or acceptance or delivery of a material gain. 2. The Head of the CBA may order the performance of actions specified in para. 1 for a specified time, after obtaining the written consent of the Prosecutor General, who shall be informed by the CBA Head on a current basis of the course of these actions and their result. 3. The actions specified in para. 1 may consist of submitting a proposal of acquisition, sale or takeover of objects derived from an offense, subject to forfeiture, or the manufacture, possession, transport or trading of which is prohibited, or of submission of a proposal for acceptance or delivery of a material gain. 4. The actions specified in para. 1 shall not consist of directing activities showing all the features of a prohibited act on pain of penalty. 5. In the case of confirmation of information on an offense specified in art. 2 para. 1 subpara. 1, the Head of the CBA shall forward to the Prosecutor General material obtained as a result of actions with a request for institution of penal proceedings. In proceedings before the court, with regard to this material the provision of art the first sentence of the Act of 6 June 1997 the Code of Penal Procedure shall apply accordingly. 6. The Prime Minister shall specify by a regulation the manner of conducting and documenting the actions referred to in para. 1. On taking into consideration the secret 15

16 character of the actions, the regulation should specify the manner of safe-keeping, transmission and destruction of material and documents obtained or manufactured in connection with the execution of actions referred to in para. 1, and may also specify the model forms of the used printed material and registers. Art. 20. In the performance of the actions referred to in art. 19, an operating inspection may be applied under the principles specified in art. 17. Art. 21. An authorized person performing the actions referred to in art. 19 para. 1 shall not be committing an offense if the conditions specified in art. 19 para. 3 have been maintained. Art Within the scope of its competence, the CBA may acquire information, including classified information, and may gather, check and process it. 2. To prevent or detect offenses specified in art. 2 para. 1 subpara. 1, and to identify persons, the CBA may process information, including also personal data from files kept under separate regulations by public authority organs and state organizational units, and in particular from the Business Activity Register, National Taxpayers' Register, the National Penal Register, the National Court Register, the Universal Electronic Population Register System (PESEL), the Register of National Economy Entities, the Central Register of Insured Persons and the Central Register of Premium Remitters, the Central Register of Vehicles and Drivers, the National Center of Criminal Information. The administrators of data gathered in these registers shall be obliged to make these available without payment. 3. Data from the files referred to in para. 2 shall be forwarded in particular on optical, magnetic carriers or via teletransmission. 4. Within the scope of its competence, the CBA may also gather any essential personal data, including also, when this is justified by the character of the performed tasks, data indicated in art. 27 para. 1 of the Act of 29 August 1997 on the Protection of Personal Data (Dz. U No. 101, item 926 and No. 153, item 1271 and 2004 No. 25, item 219 and No. 33, item 285), as well as make use of personal data and other information acquired as a result of performed operating and reconnaissance acts by authorized state organs, services and institutions and process these, in the meaning of the Act on the Protection of Personal Data, without the knowledge or consent of the person that these data concern. 5. The administrator of a set of data shall be obliged to make available personal data specified in an authorization, referred to in para. 4, on the basis of a named authorization issued by the Head of the CBA, presented by a functionary together with a service identity card. 16

17 6. Personal data gathered for the purpose of detecting an offense shall be kept for the period in which they are necessary to carry out the statutory tasks performed by the CBA. CBA functionaries check these data not less frequently than every 10 years from the date of obtaining the information, removing redundant data. 7. Personal data disclosing racial or ethnic origin, political views, religious or philosophical outlooks, religious, party or trade union affiliation as well as data on the state of health, addictions or sexual life of persons suspected of committing offenses prosecuted by public accusation, that have not been convicted for these offenses, shall be subject to witnessed and recorded destruction immediately after legalization of the relevant court decision. 8. The Prime Minister shall specify by a regulation the model authorization referred to in para. 5, the scope and procedure of issuing it and the subject scope of the authorization, having in view assurance of proper performance of actions by a CBA functionary. 9. The Prime Minister shall specify by a regulation the scope, conditions and procedures of transmitting information to the CBA by state organs, services and institutions referred to in para. 2 and 4, with due regard for the manner of documenting this information and the entities authorized to transmit this information. 10. The Prime Minister shall specify by a regulation the manner of processing personal data referred to in para. 2 and 4, in data sets, the types of organizational units of the CBA authorized to use these sets and the model forms of documents in effect when processing data, on taking into consideration the need to protect data against unauthorized access. Art If this is necessary for effective prevention of offenses specified in art. 2 para. 1 subpara. 1, or for their detection, or for the establishment of the perpetrators or to obtain evidence, or to check the truthfulness of asset declarations referred to in art. 2 para. 1 subpara. 5, within the scope of its competence, the CBA may use information processed by banks that is a bank secret and information concerning agreements on a securities account, agreements on a cash account, insurance agreements or other agreements concerning trading in financial instruments, and in particular data of the persons that have concluded such agreements, processed by authorized entities. 2. The provision of para. 1 shall apply accordingly to: 1) cooperative savings and credit funds; 2) entities conducting activity pursuant to the Act of 26 October 2000 on Stock Exchanges (Dz. U No. 121, item 1019 and No. 183, item 1537 and 1538); 3) entities conducting insurance activity; 4) investment funds; 5) entities conducting activity in the field of trading in securities and other financial instruments pursuant to the Act of 29 July 2005 on Trading in Financial Instruments. 17

18 3. Information and data referred to in para. 1, and information related to the transmission of this information and data, shall be subject to the protection envisaged in the regulations on the protection of classified information and may be made available only to functionaries conducting actions in the given case and to their superiors, authorized to perform supervision of the operating and reconnaissance actions conducted by them in this case. Files containing this information and data shall also be made available solely to courts and prosecutors if this takes place for penal prosecution purposes. 4. The information and data referred to in para. 1 shall be made available on the basis of a decision issued on the written request of the Head of the CBA by the District Court in Warsaw. 5. The request referred to in para. 4 shall contain: 1) the number of the case and its cryptonym, if such has been conferred; 2) a description of the offense with indication of its legal classification; 3) the circumstances justifying the need to make the information and data available; 4) indication of the entity that the information and data concern; 5) the entity obliged to make the information and data available; 6) the type and scope of the information and data. 6. After examining a request, the Court shall consent by a decision to make available the information and data of the indicated entity, specifying the type, scope and entity obliged to make these available, or shall refuse to give consent for making the information and data available. The provision of art. 17 para. 11 shall apply accordingly. 7. The Court decision referred to in para. 6 may be complained against by the Head of the CBA. 8. In the case when the Court consents to make information available, the Head of the CBA shall inform in writing the entity obliged to make the information and data available of the type and scope of information and data that are to be made available, the entity that the information and data concern, and of the CBA functionary authorized to collect these. 9. Within 120 days from the date of forwarding the information and data referred to in para. 1, the CBA, subject to para. 10 and 11, shall inform the entity referred to in para. 5 subpara. 4 of the court decision consenting to make the information and data available. 10. The Court, on the request of the Head of the CBA, submitted after obtaining written consent of the Prosecutor General, may postpone by a decision, for a specified time, with the option of further postponement, the obligation referred to in para. 9, when it is made probable that informing the entity referred to in para. 5 subpara. 4 may be harmful for the results of the undertaken operating and reconnaissance actions. The provision of art. 17 para. 11 shall apply accordingly. 18

19 11. If in the period referred to in para. 9 or 10 preparatory proceedings are instituted, the entity indicated in para. 5 subpara. 4 shall be notified of the court decision on making available of information and data by the prosecutor or, on his instruction, by the CBA before the preparatory proceedings are closed or immediately after they are discontinued. 12. If the information and data referred to in para. 1 have not furnished grounds for institution of preparatory proceedings, the organ requesting the issue of a decision shall immediately notify of this in writing the entity that has forwarded the information and data. 13. Material gathered in the procedure referred to in para that is not information confirming the occurrence of an offense shall be subject to immediate witnessed and recorded destruction. Destruction of the material shall be ordered by the Head of the CBA. 14. The State Treasury shall be liable for damages caused by violation of the provisions of para. 3 under the principles specified in the Act of 23 April 1964 the Civil Code (Dz. U. No. 16, item 93, with subsequent amendments 11 ). 15. The Prime Minister shall specify by a regulation the manners of processing the data and information referred to in para. 1, in data sets, the types of CBA organizational units authorized to use these sets and the model documents in effect when processing data, with due regard for the need to protect data against unauthorized access. Art In connection with the performance of its tasks, the CBA shall ensure protection of the means, forms and methods of carrying out tasks, of gathered information and own facilities and of data identifying CBA functionaries. 2. When performing operating and reconnaissance actions, CBA functionaries may use documents that disable the establishment of data identifying a functionary and the means used for the performance of official duties. 3. Persons providing assistance to the CBA in the performance of operating and reconnaissance actions may use the documents referred to in para A person who: 11 Amendments to the Act referred to were published in Dz. U No. 27, item 252, 1976 No. 19, item 122, 1982 No. 11, item 81, No. 19, item 147 and No. 30, item 210, 1984 No. 45, item 242, 1985 No. 22, item 99, 1989 No. 3, item 11, 1990 No. 34, item 198, No. 55, item 321 and No. 79, item 464, 1991 No. 107, item 464 and No. 115, item 496, 1993 No. 17, item 78, 1994 No. 27, item 96, No. 85, item 388 and No. 105, item 509, 1995 No. 83, item 417, 1996 No. 114, item 542, No. 139, item 646 and No. 149, item 703, 1997 No. 43, item 272, No. 115, item 741, No. 117, item 751 and No. 157, item 1040, 1998 No. 106, item 668 and No. 117, item 758, 1999 No. 52, item 532, 2000 No. 22, item 271, No. 74, item 855 and 857, No. 88, item 983 and No. 114, item 1191, 2001 No. 11, item 91, No. 71, item 733, No. 130, item 1450 and No. 145, item 1638, 2002 No. 113, item 984 and No. 141, item 1176, 2003 No. 49, item 408, No. 60, item 535, No. 64, item 592 and No. 124, item 1151, 2004 No. 91, item 870, No. 96, item 959, No. 162, item 1692, No. 172, item 1804 and No. 281, item 2783 and 2005 No. 48, item 462, No. 157, item 1316 and No. 172, item