Sprawiedliwość czy „zwycięstwo za wszelką cenę” : podejście prokuratora do zasady prawdy materialnej : analiza porównawcza

Istota i zasady procesu karnego 25 lat później : księga poświęcona pamięci Profesora Andrzeja Murzynowskiego / redakcja naukowa Maria Rogacka-Rzewnicka, Hanna Gajewska-Kraczkowska. Warszawa : Wolters Kluwer, 2020, s. 157-178.

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Orzecznictwo Sądów Polskich 2020, nr 3, s. 43-78.

Since the entry into force of Article 168b of the Code of Criminal Procedure [CCP], that is, since 15 April 2016, the Supreme Court has several times had to discuss the influence of violations of law on the admissibility of evidence obtained in the course of operating surveillance. Pursuant to this provision if, during operating surveillance ordered upon the motion of an authorized body on the basis of special provisions, evidence is obtained that the person in whose respect operating surveillance was applied committed a different offence prosecuted ex officio or fiscal offence than the one in whose regard operating surveillance was applied, or that an offence prosecuted ex officio or fiscal offence was committed by a different person than the person covered by the order on operating surveillance, the prosecutor makes a decision in the matt er of use of such evidence in criminal proceedings. As a result of introduction of Article 168b CCP into the system of criminal procedure there appeared a situation when the literal wording of the provision does not permit its purely linguistic interpretation, which – as we might think – was intended by the legislature. When discussing the correct application of Article 168b CCP, the Supreme Court had to make references to systemic and teleological issues of the whole system of criminal procedure; this was necessary as the literal wording of the article seemed to contradict precisely these values. Thus the Supreme Court became a ‘watchdog’ of those values, assuming an important role of a body safeguarding the cohesion of the model of criminal procedure and the coherence of its norms. By so doing, it demonstrated how important role in the process of applying procedural provisions is played by procedural principles, including in particular those of a fair trial and procedural loyalty to the trial participants. In its latest case law – in particular in the judgments discussed here – the Court drew temporal and subject-matt er boundaries for the application of Article 168b CCP.