Remarks on the Question of Cessation of the Running of Limitation Period for Amenability to a Penalty (Selected Issues)

The author discusses the regulations concerning cessation of the running of limitation period for amenability to a penalty contained in the Act of 13 June 2019 amending the Penal Code and certain other acts, in the draft Act amending the Penal Code and certain other acts of 16 September 2021, and in the Act of 7 July 2022 amending the act – Penal Code and certain other acts. The Constitutional Tribunal in its judgment of 14 July 2020 (Kp 1/19) decided that the Act of 13 June 2019 amending the Penal Code and certain other acts was incompatible in its entirety with Article 7 in conjunction with Article 112 and Article 119 (1) of the Polish Constitution. According to the Constitutional Tribunal, the reason for the defectiveness of this law was the Sejm’s failure to observe the correct procedure for the adoption of this law as provided for in the Constitution. Under the proposed regulation, in the case of a reasonable suspicion of another offence found in the course of criminal proceedings, the criminality of this newly disclosed offence was supposed to be extended as set out in Article 102 § 1 of the Penal Code. A circumstance to cause an extension (or cessation) of the limitation period for a newly disclosed offence would be reasonable suspicion that the offence was committed. In that case, the amenability to a penalty for that offence would be temporally extended from the date on which the irst evidence-taking activity was proceeded to determine whether that offence had been committed. The author criticized this proposal and put forward arguments challenging the validity of this amendment to the Penal Code. The discussion leads to the conclusion that the proposed amend -


INTRODUCTION
First, it is necessary to address the terminological issue regarding the concept of "cessation" (Pol. przerwa) of the limitation period. The literature on the subject has raised objections to this term. 1 It has been pointed out that the term "cessation" is inadequate to the provisions of Article 102 of the Penal Code (hereinafter: the PC), because where certain procedural acts are done, the limitation periods do not run anew, but are just extended. 2 It is therefore proposed that the term "cessation" should not be used, but to refer to "additional limitation periods" in the case of the regulation pointed to in Article 102 of the PC. 3 While sharing the objections with regard to the inadequacy of the use of the term "cessation", it may be added that an additional argument is that the concept of "cessation" is sometimes identiied with the resting of the limitation period, that is to say, with the regulation of Article 104 of the PC. 4 In my opinion, it would be most appropriate for the regulation contained in Article 102 of the PC to use the term "extension of the limitation period for amenability to a penalty". 5 At the same time, however, a long-standing tradition of using the term "cessation of the limitation period for amenability to a penalty" to designate the rules referred to in Article 102 of the PC speaks for the admissibility of using the current term.
The study covers the regulations concerning the cessation of running of the limitation period contained in the Act of 13 June 2019 amending the Penal Code and certain other acts. President of the Republic of Poland Andrzej Duda, acting pursuant to Article 122 (3) of the Polish Constitution, decided to refer this Act to the criminal law. 11 It has been pointed out that it could cause far-reaching practical problems. 12 According to J. Giezek and K. Lipiński, the phrase "taking the irst step in evidence taking aimed at inding out whether it [the crime] has been committed" may raise doubts as to whether, e.g., the hearing of a witness in other proceedings can be considered such a step. 13 The opinion also states that it is dificult to interpret the term "taking the irst step in evidence taking aimed at inding out whether it has been committed". 14 The expressions contained in Article 102 § 2 of the Act amending the Penal Code were also challenged in the opinion presented by the Supreme Court Research and Analyses Ofice. 15 It was argued that the determination of that moment in the Act amending the Penal Code is not suficiently unequivocal, which would in practice raise doubts as to the moment when the period of amenability to a penalty was extended. It was found that it would be particularly problematic after a long time from the initiation of the proceedings, when the proceeding body had a reasonable suspicion that another offence had been committed. 16 Moreover, the opinion has pointed out that the content of the proposed Article 102 § 2 of the PC does not give an unequivocal answer as to whether it is about an evidence-taking step that took place after the reasonable suspicion of a crime, or also an earlier activity, from which such a suspicion arose. In the opinion of the authors of the opinion prepared by the Supreme Court Research and Analyses Ofice, the legal regulation contained in this Act raised doubts as to whether the taking of evidence was actually directed at whether the offence concerned had been committed. 17 Also, the opinion prepared by A. Barczak-Oplustil, W. Górowski, M. Małecki, W. Zontek, S. Tarapata, W. Wróbel and M. Iwański argues that it is not known what criteria can be used to determine whether a given evidence-taking action was indeed aimed at inding whether a crime had been committed. 18 In the opinion of the Centre for Research, Studies and Legislation of the National Council of Attorneys at Law, the proposed 16 maja 2019 r., Kraków,9.6.2019, https://obserwatoriumdemokracji.pl/wp-content/uploads/2019/06/ opiniaKIPK_nowelizacja2019.pdf (access: 12.4.2022). 11 See Rzecznik Praw Obywatelskich, Opinia do ustawy z dnia 16 maja 2019 r. o zmianie ustawy -Kodeks karny oraz niektórych innych ustaw, II.510177.2019, 20.5.2019, https://bip.brpo. gov.pl/sites/default/iles/Opinia%20RPO%20dla%20Senatu%20ws%20zmian%20w%20prawie%20 karnym,%2020%20maja%202019.pdf (access: 10.5.2022), pp. 1-2. 12 See J. Giezek,K. Lipiński,op. cit.,p. 35. 13 Ibidem. 14 Ibidem. It should be added that this opinion held that dificulties in interpretation were also caused by the phrase "inding a suspicion of commission of another offence". 15 See Biuro Studiów i Analiz Sądu Najwyższego, op. cit., p. 14. 16 Ibidem. 17  wording of Article 102 § 2 of the PC raised interpretation doubts, in particular as to whether the proceeding body had a reasonable suspicion that another offence had been committed and what was the irst step in evidence taking 19 .
It was also stated that the limitation period constituted a negative precondition and should therefore be regulated in such a way as to allow the circumstances of the cessation of the limitation period to be determined quickly and unequivocally. 20 It was argued that the regulation contained in the amended Article 102 § 2 of the PC extending the limitation period for amenability to a penalty is vague, which destabilises this legal construct. 21 Consideration should also be given to whether the proposed regulations are consistent with the relevant provisions of the Code of Criminal Procedure (hereinafter: the CCP). The application of criminal law can only take place during a criminal trial.
The purpose of this study is to consider whether the proposed amendment to Article 102 of the PC, providing for the extension of the limitation period for amenability to a penalty in the event of the occurrence of the circumstances set out in this provision, meets the requirements that should be fulilled by legal regulations on the limitation period. Limitation as a precondition for the trial should specify exactly at what point the limitation periods begin to run and when they expire. A precise deinition of these circumstances determines the admissibility or inadmissibility of a criminal trial. That precision is relected in the way in which limitation periods are calculated. It is generally accepted in the literature that limitation periods, unlike procedural time limits intended for the performance of procedural acts speciied in the CCP, are calculated according to the rule of computatio naturalis (a momento ad momentum). 22 For this reason, it is pointed out in the literature that one function of the conditions of admissibility of the trial, including the institution of limitation, is the guarantee (protective) function. 23 In this analysis, the rules of linguistic and functional interpretation have been applied. 1. The proposed amendment to Article 102 of the PC is in line with the trend of amendments to the PC of 1997, which essentially boils down to the liberalisation of the requirements that must be met in order to extend the limitation periods for amenability to a penalty. While in the original version of the PC of 1997 the limitation period used to be ceased by the initiation of in personam proceedings, 24 since 2 March 2016 the PC has linked the extension of limitation periods to the initiation of in rem proceedings. 25 It is rightly pointed out in the literature that the regulation which linked the cessation of limitation period to the initiation of in personam proceedings meant that in order to produce this effect in the course of criminal proceedings, much more serious requirements (prosecution against a speciic person) had to be met than in the case of linking the extension of the limitation period for amenability to a penalty to the initiation of proceedings in rem.  Lublin 1975, p. 187;I. Nowikowski, Glosa do wyroku SN z dnia 12 III 1979r., OSPiKA 1980 as in judgment of the Supreme Court of 12 March 1979, I KR 27/79, OSNKW 1979  2. It is highly probable that the above-mentioned regulation on the circumstances giving rise to the cessation of running of the period was the consequence of adopting the view that the extension of the scope of the proceedings to include further facts found in the course of the proceedings does not require a further decision on the matter. 27 It is argued that such a solution is supported by the wording of § 106 of the current Rules of internal procedure of the general organisational units of the Public Prosecutor's Ofice, 28 according to which the investigation or enquiry commenced in the case must be carried out for all offences disclosed. 29 This regulation is supplemented by § 107 of these Rules of internal procedure, according to which a single preparatory procedure covers all acts related in subjective or objective terms with the offence which gave rise to the initiation of proceedings, unless the circumstances referred to in Article 34 § 3 of the CCP take place, i.e. there are circumstances which make it dificult to hear cases jointly. On the other hand, § 124 (1) of the applicable Rules of internal procedure of the organisational units of the Public Prosecutor's Ofice, repeats the rule laid down in Article 303 of the CCP and Article 325a § 2 of the CCP that the decision to open an investigation or enquiry shall specify the offence being investigated.
It has therefore been assumed that a change of the subject of the proceedings in the course of further procedural actions does not entail the need to modify the decision to initiate pre-trial proceedings. 30 It has been stated, that an exception to this rule is the situation, where in a case carried out in the form of enquiry, in the course of the already conducted activities a crime is revealed, which requires the form of investigation. In such a case it is necessary for the public prosecutor to issue a decision to initiate investigation. 31 Therefore, a position may be proposed, that in essence there is no point in issuing a new decision to initiate an investigation or an enquiry, when in the course of the initiated pre-trial proceedings evidence is disclosed, which indicates the commission of other acts, not substantively related to the case initiated earlier. According to this view, the initiation of the investigation concerning a speciic act does not preclude covering by the investigation all other acts disclosed in the course of the investigation, without the need to issue separate decisions on the initiation 27 As in Z. Brodzisz of the investigation of these acts, as the description of the act in the decision on the initiation of the investigation is provisional and may be modiied. 32 According to another position, if during previously instituted proceedings a justiied suspicion of commission of another offence arises, it is necessary to issue a separate decision to initiate the investigation in a newly disclosed case within the meaning of Article 33 § 1 of the CCP and Article 34 § § 2 and 3 of the CCP, i.e. in the sense of proceedings concerning a speciic act. 33 The position of T. Grzegorczyk coincides with the presented view. According to this author, in a situation, where it turns out that the suspect charged with a speciic offence has also committed another offence, which was not subject to investigation, Article 314 of the CCP should not be applied, but it is necessary to initiate investigation concerning this newly found offence and to merge these cases into one proceeding. 34 It was pointed out that inding a new offence in the course of pre-trial proceedings, which makes it reasonable to conduct both proceedings jointly, results in the necessity to issue a decision on the initiation of proceedings concerning this new act and on combining both proceedings. 35 A view was therefore expressed that since these cases are to be conducted jointly, it becomes necessary to include the decision on the initiation of investigation in the iles of the proceedings conducted so far. 36 In considering this issue, it should be noted that acceptance of the view that there is no need to issue a decision to initiate an investigation or enquiry should a new offence not covered by the current investigation be revealed during the investigation procedure may give rise to doubts in view of the content of the current Article 102 of the PC. This provision links the extension of the limitation period to the initiation of in rem proceedings. Therefore, for guarantee reasons, it should be 32 Z. Brodzisz did not rule out such a solution. It was inferred from the wording of § 143, § 144, and § 131 of those Rules of internal procedure that, if there are grounds for doing so, an investigation must be initiated in each case understood as one offence, that is to say, in the case of multi-threaded pre-trial proceedings, an investigation should be initiated in respect of each of the threads, when that thread was not covered by the original decision to initiate proceedings. See A. Łosicka, op. cit., pp. 49-50. Pobrane z czasopisma Studia Iuridica Lublinensia http://studiaiuridica.umcs.pl Data: 15/09/2023 14:14:52 accepted that a precise date for the initiation of criminal investigations is required. 37 That date may be deined precisely by setting a time-limit for the decision to initiate proceedings for that newly found offence. 38 These guarantee reasons justify not only the modiication of Article 106 of the Rules of internal procedure, but also the need to amend the CCP. This amendment should require a new decision on the initiation of proceedings to be issued when, in the course of an initiated investigation or enquiry, it would be necessary to conduct proceedings for a newly found offence that has not been covered by the proceedings so far. The provisions of both the code and the internal regulations should result in the obligation to issue a decision on the initiation of an investigation or enquiry into each offence covered by the proceedings (Articles 303 and 325a of the CCP, § 124 of the Rules of internal procedure), in which the offence and its legal classiication would be speciied (Article 303 of the CCP). On the other hand, nothing prevents combining the proceedings into a single pre-trial proceeding pursuant to § 107 of the Rules of internal procedure of 2016.
If, having carried out an appropriate action, the proceeding body has a reasonable suspicion that a crime has been committed, the principle of legality (Article 10 § 1 of the CCP) should be obliged to issue a decision to initiate an investigation (Article 303 of the CCP) or enquiry (Article 325a in conjunction with Article 303 of the CCP). This provision relects the proceeding body's conviction about a reasonable suspicion that a crime has been committed and there is therefore no need to resort to the solution in the draft Article 102 § 2 of the PC. The question may be asked why the proceeding body's conviction about advisability of conducting an investigation into a newly discovered offence is to be expressed as an unspeciied "proceeding body's conviction" and not in the immediate decision to initiate an investigation or enquiry into that offence? The issuance of such decision means that the fact that the proceedings were initiated is objectively veriiable as to the time in which it took place. This is to precisely specify the date when the proceeding body has acquired a reasonable suspicion that a new crime had been committed. This is important for inding when the extension of the limitation period occurred. At the same time, there is no doubt that, in the course U M C S of the proceedings, the form of the offence referred to in the decision initiating the proceedings may be modiied. 39 It should be noted that the explanatory memorandum to the draft Act of 16 September 2021 states that, in order to ensure that there is no doubt as to which of the acts indicated in the amended Article 102 § 2 of the PC is the irst, it is proposed to amend the rules of internal procedure of the general units of the Public Prosecutor's Ofice -regulation of the Minister of Justice of 7 April 2016. According to this proposal, the prosecutor will be obliged to record in the form of a document (a note) the initial taking of evidence to determine whether the offence has been committed. According to the proponents, such a solution will allow deining the time limit for extending the limitation period referred to in the draft Article 102 § 2 of the PC. In light of the aforementioned indings, this proposal should not be accepted.
3. The Act amending Article 102 of the PC assumed that if during initiated proceedings a reasonable suspicion of commission of another offence has been found, the amenability to a penalty for this offence was to be extended in the manner speciied in § 1 of Article 102 of the PC as of the date on which the irst evidence-taking activity was taken to establish whether the crime had been committed. It seems that the use of the words "evidence-taking activity to establish whether the crime had been committed" is not a precise wording.
If the effect referred to in the proposed Article 102 § 2 of the PC is to be connected with the irst evidence-taking activity, the question may be asked whether the effect indicated in this provision would take place when, e.g. in the surveillance and recording of conversations pursuant to Article 237 of the CCP the evidence has been obtained of the commission of an offence which was not covered by the order to perform surveillance or by a person against whom such surveillance was not ordered. These offences may be included both in the catalogue set out in Article 237 § 3 of the CCP and may not have been listed in this provision. Thus, where evidence emerges justifying a suspicion that a person has committed an offence other than the one indicated in the surveillance order, a question arises as to whether this would be a suficient condition for triggering the effect referred to in the pro-  44 According to the new wording of Article 237a of the CCP, if during the surveillance, evidence has been found of a crime committed by a person covered by the surveillance, another criminal offence prosecuted ex oficio or a iscal offence other than covered by the surveillance order, or a criminal offence prosecuted ex oficio or a iscal offence committed by a person other than the person subject to the surveillance order, the prosecutor makes a decision on the use of this evidence in criminal proceedings, by issuing an appropriate decision.
According to the linguistic interpretation of Article 237a of the CCP, in its current version, if it is accepted that the decision on the use of evidence obtained under the procedure set out in that provision is taken solely by the prosecutor and acceptance of the assumption that the existing objective and subjective restriction contained in Article 237 § 3 of the CCP 45 has been lifted, then obtaining evidence to provide grounds for the suspicion of committing any crime prosecuted ex oficio would have the effect of the new version mentioned in Article 102 of the PC if the prosecutor has taken a decision on the use of this piece of evidence.
The current regulation of Article 237a of the CCP, which, when interpreted literally, allows for the use of evidence in criminal proceedings relating to each criminal offence prosecuted ex oficio or each iscal offence and granting the decision-making on the use of this evidence to the prosecutor, raises doubts as to whether it complies with the constitutional norm. 46 It was argued that such an in- terpretation would in fact serve to legalize the illegal activities of state authorities. 47 It was pointed out that this interpretation would be a manifestation of unacceptable interference in the sphere of civil liberties, and it would be a restriction on the freedom of communication (Article 49 in conjunction with Article 31 (3) of the Polish Constitution). 48 In view of the above, there are interpretations that postulate the application of the pro-constitutional interpretation of Article 237a of the CCP. It assumes that Article 237a of the CCP refers only to the crimes listed in Article 237 § 3 of the CCP. 49 It is noted that the content of Article 237a of the CCP cannot be interpreted in isolation from Article 237 § 3 of the CCP, which contains a closed list of crimes. 50 It is argued that the introduction of a closed list of offences is important due to interference with the following constitutional rights: the right to privacy (Article 47 of the Polish Constitution) and the right to secrecy of communication (Article 49 of the Polish Constitution). 51 It should be noted that wiretapping during a criminal trial is a coercive measure which limits the constitutional rights of persons against whom these measures have been applied. 52 Therefore, the provisions introducing these measures should not be interpreted broadly. 53  Pobrane z czasopisma Studia Iuridica Lublinensia http://studiaiuridica.umcs.pl Data: 15/09/2023 14:14:52 U M C S that in a situation where, during the surveillance, evidence of a crime not covered by the court's decision to order the surveillance and record telephone conversations or evidence of a listed offence, but committed by a person other than the person indicated in the court's decision to order the surveillance, the provision of Article 237a of the CCP grants the public prosecutor the power to review illegally obtained evidence, but only and solely for the purpose of determining whether other evidence can be lawfully (legally) obtained from this information. 54 It is commonly stated that the provision of Article 237a of the CCP does not entitle the prosecutor to introduce illegally obtained evidence into the criminal trial and to make factual indings based on it. 55 This view is supplemented by the proposition that the decision on the use of evidence obtained as provided for in Article 237a of the CCP at the stage of pre-trial proceedings is to be undertaken by the prosecutor and it refers only to this stage of the proceedings, but it does not bind the court. 56 It should be accepted that the authority entitled to make the inal decision on the use of the evidence resulting from surveillance carried out under Article 237 of the CCP is the court and it is the court that ultimately decides on the use of evidence obtained outside the subjective and objective scope of Article 237a of the CCP. 57 Referring these statements to the regulation proposed in Article 102 § 2 of the PC, the following statements can be made. The acceptance of the view that the public prosecutor makes at the stage of pre-trial proceedings a decision to use evidence obtained in accordance with the procedure provided for in Article 237a of the CCP results in that, following the proposed Article102 § 2 of the PC, the limitation period would be extended, if the prosecutor decides to use the evidence thus obtained. If an indictment or other action initiating judicial proceedings is brought before a court, then, assuming that the court will ultimately decide to use the evidence obtained as speciied in Article 237a of the PC, the question may be asked whether, in the event 54 J. Skorupka  that the court inds that the prosecutor's introduction of evidence obtained with trespassing the subjective and objective limits referred to in Article 237a of the CCP is illegal, 58 this has an impact on the extension of the period within the meaning of the proposed Article 102 § 2 of the PC. This is so because the circumstances which cease the limitation period are presumed to have a lasting effect. Nonetheless, this inding is accompanied by the view that it concerns lawful acts. 59 Approaching this issue, one should take the view that the mere act of surveillance on the conversations carried out in accordance with the requirements of Article 237 of the CCP, during which material crossing its subjective or objective boundaries speciied in the court's decision on the control and recording of the content of telephone conversations was obtained, is not illegal. 60 However, doubts arise as to the admissibility of using these materials in criminal proceedings. These doubts about the compliance of the regulation contained in Article 237a of the CCP with constitutional standards allow us to put forward the thesis that the court may ultimately decide whether to use this evidence as strict evidence. 61 It is also rightly stated that the systemic and teleological interpretation supports the position that in the event of an accidental exceeding the subjective scope of surveillance, it is possible to use evidence relating to these crimes, provided that they are listed in Article 237 § 3 of the CCP. 62 If evidence of the so-called non-listed crimes has been found, the trial use of this evidence is unacceptable, due to the reasons pointed out above. The consequence of this statement is the argument that the inal extension of the limitation period provided for in Article 102 § 2 of the PC as proposed should not take place, despite the actions taken by the prosecutor.
When we assume that it is not admissible for the prosecutor to use evidence obtained beyond the subjective and objective boundaries listed in Article 237 of the CCP, and hence it should not have the effect indicated in the proposed Article 102 of the CCP, a question arises, however, whether such an interpretation is consistent with the content of Article 168a of the CCP? This provision states that 58 As in R. Koper, op. cit., p. 34: J. Skorupka, Komentarz do art. 237a, [in:] Kodeks postępowania karnego…, 2020, p. 585;M. Rogalski, op. cit., p. 4029. 59 Pursuant to Article 106 of the PC of 1969, a view was expressed that the cessation of the limitation period caused by the initiation of criminal proceedings is of a permanent nature (see K. Marszał, Przedawnienie w prawie karnym…, 1972, p. 156). According to K. Marszał, "further actions as part of criminal proceedings are not relevant to the limitation period for amenability to a penalty under Article 106 of the PC, including the possible discontinuance and subsequent initiation or resumption of discontinued pre-trial proceedings" (ibidem). According to this author, this does not apply to cases where the initiation of criminal proceedings was defective from the very beginning due to an existing procedural obstacle (ibidem). U M C S evidence cannot be regarded as inadmissible solely on the grounds that it was obtained in violation of procedural rules or by means of the prohibited act referred to in Article 1 § 1 of the PC, unless the evidence was obtained in connection with the performance of oficial duties by a public oficial as a result of: manslaughter, intentional inliction of injury or deprivation of liberty. This regulation allows for an interpretation, according to which it is permissible to use evidence obtained with infringement of the procedural rules or with the use of the forbidden act referred to in Article 1 § 1 of the PC, disqualifying only evidence which was obtained in connection with carrying out oficial duties by a public servant as a result of killing, intentional inliction of injury or deprivation of freedom. 63 Under such an interpretation, even declaring as inadmissible the introduction by the prosecutor into the trial of evidence obtained outside the subject and object boundaries indicated in Article 237a of the CCP and making factual indings on their basis would result in the effect indicated in the proposed 102 § 2 of the PC, when the requirements of this provision are met.
However, the content of Article 168a of the CCP allows another interpretation. According to it, evidence cannot be declared inadmissible if the sole reason for such a decision is that it was obtained in breach of procedural law or through the offence referred to in Article 1 § 1 of the PC. It was also pointed out that Article 168a of the CCP may be interpreted as meaning that the evidence cannot be considered inadmissible on the sole ground that it was obtained in breach of the provisions of criminal procedure. 64 This allows stating that "if it is possible to point out reasons for the inadmissibility of evidence other than infringement of procedural law or criminal prohibition, the principle referred to in Article 168a of the CCP shall not apply". 65 It is presumed that this additional reason for the inadmissibility of evidence are constitutional and convention values and the standard of fair trial. 66 For these reasons, if the court inds it inadmissible to introduce into the trial the evidence obtained pursuant to Article 237a of the CCP outside the subjective and objective limits speciied in Article 237 § 3 of the CCP, the effect referred to in the proposed Article 102 § of the PC should not occur. 63 The possibility of such interpretation is pointed out by C. Kulesza. See C. Kulesza, Zakazy dowodowe, [in:] C. Kulesza, P. Starzyński, Postępowanie karne, Warszawa 2017, p. 196;S. Waltoś, P. Hofmański, Proces karny. Zarys systemu, Warszawa 2016, p. 371. In more detail on the interpretation of Article 168a of the CCP, see W. Jasiński, Nielegalnie uzyskane dowody…, pp. 418-428 and the literature referred to therein. 64 As in W. Jasiński, Nielegalnie uzyskane dowody…, p. 518;idem, Zakazy wykorzystania…, p. 2591. According to the author, the word "solely" used in Article 168a of the CCP is of crucial importance. This thesis refers to the view proposed by K. Lipiński (Klauzula uadekwatniająca przesłanki niedopuszczalności dowodu w postępowaniu karnym (art. 168a k.p.k.), "Prokuratura i Prawo" 2016, no. 11, pp. 48-50 4. Due to the proposed amendment of Article 102 § of the PC, a question arises whether the act of evidence-taking within the meaning of Article 102 § 2 of the PC should also be understood as the operational intelligence activity on the basis of which a reasonable suspicion of another offence has been established? The point is that evidence can be obtained both as a result of procedural activities such as searches, and as a result of operational intelligence activities, such as surveillance. A reasonable suspicion of committing a new offence not covered by the current proceedings may be the result of evidence obtained both by procedural acts (e.g., following explanations given by the suspect or witness testimony) as well as by acts of no procedural value: operational intelligence activities carried out in the course of a pre-trial proceedings. 67 In a situation where, following operating surveillance, a reasonable suspicion of a criminal offence emerged within the meaning of the proposed amendment of Article 102 § 2 of the PC, which is a criminal offence other than that covered by the surveillance or committed by a person other than that covered by the surveillance, doubt may arise as to whether there will be an effect of extending (cessation) of the limitation period for that offence.
It should be noted that the regulation provided for in Article 168b of the CCP has caused divergent views, similarly to the interpretation of Article 237a of the CCP. According to the irst position, the content of Article 168b of the CCP allows for the use in the criminal trial of materials from surveillance obtained outside the objective and subjective scope deined in the order of surveillance. 68 According 67 I use the term "operational intelligence activity" (Pol. czynności operacyjno-rozpoznawcze) as deined by A. Taracha (Czynności operacyjno-rozpoznawcze -aspekty kryminalistyczne i kryminalistyczne, Lublin 2006, p. 25). According to this author, the operational intelligence activities have the following characteristics: (1) they are activities of state authorities, (2) performed secretly or conidentially, (3) based on a statutory basis, (4) performing an information, detection, prevention and evidence-collecting function. to D. Karczmarska, this interpretation is supported by the principle of legalism, deletion of Article 19 (15a) from the Police Act and equivalents of this provision from other acts and the inclusion in the Code of Criminal Procedure of regulations expressly allowing for the use in criminal proceedings of information on non-listed crimes 69 . Furthermore, in the opinion of the author, the postulate to eliminate the materials concerning non-listed crimes does not deserve acceptance due to the content of Article 168a of the CCP. This provision expressly recognizes evidence collected as a result of committing a prohibited act. Based on this, D. Karczmarska has drawn the conclusion that if "materials coming from illegal wiretapping, i.e. fulilling the criteria of the offence under Article 267 § 3 of the CCP may constitute the basis for factual indings, then information obtained in connection with legally conducted surveillance should be treated as even more valuable in procedural terms, even if the scope of information obtained as a result of this activity in concreto exceeds the subjective limitations conditioning the legality of ordering this activity". 70 This group of views include also the position of the Prosecutor General, contained in the application of 31 July 2018, addressed to the Polish Constitutional Tribunal. 71 In this application, the Prosecutor General requested to consider as unconstitutional the provision of Article 168b of the CCP understood in such a way that the phrase "another criminal offence prosecuted ex oficio or a iscal offence other than covered by the surveillance order" used therein covers only crimes with respect to which the court may give its consent to carry out surveillance. According to the Prosecutor General, the unconstitutional nature of such an interpretation arises from: − the principle of the common good expressed in Article 1 of the Polish Constitution, − the principles, interpreted from Article 2 of the Polish Constitution, of trust in the State and the law and social justice in connection with the preamble to the Constitution, − Article 5 of the Polish Constitution, − the principle of legality set out in Article 7 of the Polish Constitution, 6. It seems reasonable to state that the proposed amendment to Article 102 of the PC referred to the view expressed in the literature, according to which Polish law approaches the issue of cessation and suspension of the limitation period in an overly restrictive way. 83 This thesis is accompanied by the statement that the list of circumstances that cause the cessation or suspension of the limitation period is much wider in other criminal law systems than in Poland. 84 7. Adopting the solution introduced by the Act of 13 June 2019 amending the Penal Code and some other acts, in the draft Act of 16 September 2021, and in the Act of 7 July 2022 amending the act -Penal Code and certain other acts would signiicantly expand the list of reasons justifying the extension of the limitation period compared to the current content of Article 102 of the PC. If the limitation period is combined with the commencement of proceedings in the case, any actions carried out prior to the issuance of the decision on the commencement of the investigation or enquiry pursuant to Article 308 of the CCP, aimed at securing traces and evidence of a crime against their loss, deformation or destruction in urgent cases, are treated as procedural actions resulting in the commencement of proceedings. 85 In this case, the situational context means that despite the absence of a decision on the initiation of investigation or enquiry, we are already dealing with the initiation of proceedings, which produces the effect speciied in Article 102 of the CCP. Therefore, it should be assumed that the proposed amendment of Article 102 of the CCP does not concern the situation referred to in Article 308 of the CCP, because if the need to carry out evidence-taking appeared, this very circumstance, without the need to amend Article 102 of the CCP, would result in the consequence provided for in this footnote. Therefore, it may be assumed that the legislature wanted to combine the cessation of the running of the limitation period with the performance of an evidence-taking act, which would make it plausible that the crime had been committed, but which was not covered by necessary actions related to the newly disclosed act, which raises doubts.
8. Activities which in the light of the amendment may prolong the limitation periods are, in some cases, classiied in forensic science as external sources of irst