6 MACIEJ ROGALSKI
solutions are unsuitable or ineffective. Implicit interference with the freedom and
rights, is to be the ultima ratio14. It should be noted that in the case of operational
control of the force, however, the principle of subsidiarity. Operational control can
be ordered only when other measures have proved ineffective or are unsuitable15.
1.3. An important issue is the protection of professional secrecy in the
collection and sharing of data communications. In terms of the mystery of his own
defense, the Supreme Court ("SN") formed the view that the defender remains
outside the circle of entities to which is permitted to control and consolidate the
talks16. According to this view, it is unacceptable to use – as evidence in criminal
proceedings – secret information in his own defense, because it would circumvent
the unconditional prohibition of evidence included in art. 178 point 1 k.p.k. This
position has been formulated on the basis of regulations k.p.k. regulating the
so-called eavesdropping process17. This view is valid in relation to other trade
secrets. Rightly points out, however, that the current normalization of a guarantee,
which provide rules k.p.k. in relation to professional secrecy, may prove to be
illusory. Despite the fact the general ban on the introduction of content is a
professional secret to a criminal trial as evidence in the case, the legislator permits
– even indirectly, by the ambiguous statutory regulation – to the collection and
storage by the departments authorized to use operational control18.
In the jurisprudence of the Constitutional Court and the European Court of
Human Rights ("ECHR") has repeatedly pointed out that for effective use of the
assistance of a lawyer is necessary to preserve the confidentiality of messages
transmitted by the defenders of the accused (suspect) 19. No possibility of the
confidential communication of the accused with his protector, also via
telecommunication technology, means that legal aid loses much of its
effectiveness20. Aptly pointed out also that ensuring the confidentiality of the
discussions with counsel of the accused is necessary not only at the stage of court
proceedings, but at any stage of the proceedings, even by a body extrajudicial (the
14 See TK judgment of 30 July 2014., Ref. K 23/11, Orzecznictwo Trybunału Konstytucyjnego
Zbiór Urzdowy ("OTK ZU") 2014, No. 7, pos. 180.
15 See W. Kozielewicz, Postpowanie w przedmiocie zarzdzenia kontroli operacyjnej, [in] L. Paprzycki,
Z. Rau, Praktyczne elementy zwalczania przestpczoci zorganizowanej i terroryzmu. Nowoczesne technologie i
praca operacyjna, Warszawa 2009, p. 511; Constitutional Court's judgment of 30 July 2014, R ef. K 23/11,
Dz. U. of 2014, item 1055; http://trybunal.gov.pl; Legalis No. 994752, part III, point 6.
16 See Supreme Court ruling of 26 October 2011., Ref. I KZP 12/11, Orzecznictwo Sdu
Najwyszego Izba Karna i Wojskowa („OSNKW”) 2011, No. 10, item 90.
17 See Constitutional Court's judgment of 22 November 2004, Ref. SK 64/03, OTK ZU 2004,
No 10/A, item 107, part III, point 3.
18 See Constitutional Court's judgment of 30 July 2014, Ref. K 23/11, OTK ZU 2014, No. 7,
19 See Constitutional Court's judgment of 11 December 2012, Ref. K 37/11, OTK ZU 2012,
No. 11/A, item 133, part III, point 3, and case-law cited TK and the ECHR.
20 Constitutional Court's judgment of 30 July 2014, Ref. K 23/11, OTK ZU 2014, No. 7, item 180.