by Łukasz Woźnicki, Gazeta Wyborcza

The draft amendment to the Penal Code was submitted to the Sejm by a group of PiS MPs, although it was not they who prepared the proposed regulations. The Ministry of Justice had announced a very similar bill a year ago having worked on the amendments in consultation with the Ministry of the Interior and Administration, the prosecution service and the heads of the secret services. As can be seen, it was provided to the MPs to take advantage of the faster legislative path and bypass the consultation obligation.

The authors of the bill explain the need to amend the regulations by the changing geopolitical situation, the threat of new armed conflicts and the increased activity of foreign intelligence services. The Ministry of Justice added another argument to this a year ago.

‘Crimes of espionage should be prosecuted with full severity. Unfortunately, the solutions we have at present are highly imperfect. The penalty for treason against the homeland is shockingly low,’ said Deputy Justice Minister Marcin Warchoł, head of the team that worked on the amendments.

No longer 10 but 30 years’ imprisonment

‘Whoever takes part in the activities of a foreign intelligence service against the Republic of Poland shall be subject to a penalty of imprisonment of between one and 10 years,’ states Article 130 of the Penal Code today. After the amendments, the maximum penalty for this offence would increase threefold – to 30 years’ imprisonment.

The authors of the bill even propose life imprisonment for certain types of espionage. For example, for passing on information to foreign intelligence services which could cause damage to the state (today, the maximum penalty is 15 years). State officials or soldiers found spying could be punished with life imprisonment. As could those involved in organising foreign intelligence activities in Poland. An additional sanction is to be the deprival of public rights.

The penalty for sabotage, diversion or terrorist activities is to be imprisonment for 10 to 30 years or life imprisonment. Anyone who provides disinformation, by taking part in foreign intelligence activities will be subject to imprisonment for up to 30 years. Disinformation here is to be the ‘dissemination of false or misleading information’ in order to cause serious disruption to the state or to influence the authorities.

‘The threat of punishment is mainly intended to be of a preventive value’ – the authors of the bill describe such harsh penalties. In their opinion, ‘professional spies’ analyse the level of sanctions in individual countries and decide on this basis whether to take the risk. ‘That is why it is justifiable to establish criminal threats at a very high level,’ we read.

And he could have assumed he was talking to a spy 

PiS also proposes other new types of espionage. If the change in the law ever enters into force, the preparation of such a crime will become punishable (by up to eight years’ imprisonment). The bill also provides for the introduction of an unintentional variant of this crime – punishable by up to five years’ imprisonment.

Whoever passes on information that is potentially damaging to Poland to a person or entity ‘which, on the basis of the accompanying circumstances, he should and could have assumed is involved in the activities of a foreign intelligence service’ will be subject to this penalty.

‘Criminals often make the excuse that they were not aware that they were talking to an agent of a foreign service and were acting to the detriment of their own state,’ Warchoł said a year ago. ‘We already have inadvertent fencing, in the case of which we expect the perpetrator to have guessed that the item he is acquiring is from a crime. We should introduce the unintentional offence of espionage,’ he added.

PiS claims this will have a positive impact on state security. The idea already encountered opposition from some lawyers a year ago. They warned that regulations introduced under the guise of combating the Russian threat could be used to punish critics of the current government.

‘Someone, not knowing who he is dealing with, passes on information to him and it suddenly transpires that the prosecutor’s office is pressing charges against him because it transpired that that person was a spy. He obviously did not intend to pass any information to a spy, he did not know he was talking to an agent, that the information could be useful, but in the case of an unintentional crime, this is irrelevant,’ commented Dr Hab. Mikołaj Małecki, a criminal law lawyer from the Jagiellonian University, on the announcement of the MoJ. 

‘This could be a provision to be used politically and for abuse. For example, a representative of an inconvenient social organisation travelled abroad to a conference and expressed himself unflatteringly about the activities of the Polish authorities, and this information could contribute to intelligence activities against Poland. This provision could also be used as a provocation against politicians and citizens who are unfriendly to the current authorities,’ said Małecki.

The problem will not go away after the penalties are made harsher 

‘Populism in thinking about criminal law is obvious,’ Małecki assesses the announcement of the tightening of the penalties. ‘I can already see Russian or other spies being scared and stopping spying because the minister has threatened them with higher penalties.’

‘Espionage here is an example of a broader pathology in thinking about criminal law: we make the penalties harsher and some social problem magically disappears. Perhaps the focus should be on better detection of espionage? So detectability and not an increase in the penalties,’ said Małecki.

The bill also introduces the possibility of prohibiting photography or filming of facilities of particular importance to state security or defence. It also extends the powers of the Internal Security Agency regarding, among other things, the clandestine acquisition of items coming from crimes, accepting and giving financial benefits and the possibility of blocking content in the web.

It arises from the justification that these are existing powers of the Internal Security Agency, which the service also wants to use for discovering and combating espionage. This is supposed to ‘minimise the adverse effects arising from the armed conflict in Ukraine, in particular the significantly increased activity of the services of the Russian Federation and Belarus’.

Translated by Roman Wojtasz

The article was published in Gazeta Wyborcza, 18 April 2023.