Position of the PSLD on the legislative changes

We propose:

1. To establish the Polish Federation of Detectives® (Associated Entrepreneurs) as the statutory representative of the community of licensed Polish detectives on the basis of professional self-government with the right to participate in the licensing procedure, including compulsory membership.
2. Restoration of the state-mandated or industrialized professional exam as an perquisite to engage in detective profession, with respect to acquired rights to fulfil the aforementioned profession.
3. Establishment of two, separate divisions of detective licenses.
4. To officially establish the position of an Assistant Detective.
5. To realize normative powers belonging to the detective through enumerative positive enumeration.
6. To introduce the concept of detective-client confidentiality, similar to that of the medical profession.
7. Abolition of the obligation of self-denunciation referred to in article 25
8. Consistently, we postulate the inclusion of the Polish Federation of Detectives® (Associated Entrepreneurs) – as a representative of the professional sphere – in the system of state security organization, similarily to other protective formations.

 

 

 

I. PREAMBLE

Polska Federacja Detektywów® (Stowarzyszenia Przedsiębiorców) - The Polish Federation of Detectives® (Associated Entrepreneurs) represents the community of licensed Polish detectives, established in 2008, gaining full legal privilege the following year. The basis of its assumption was the authentic belief that the monopoly on executive authority related to domestic detective work cannot be held only by people from outside this environment, who not only do not practice this profession, but also do not have appropriate powers in this field and the right to conduct business in the field of detective services, and consequently do not have appropriate preparation and experience. Polish Federation of Detectives® (Associated Entrepreneurs) is the only and exclusive association of natural persons holding the professional title of a licensed detective, which is authorized by their license. The activities of the Polish Federation of Detectives® (Associated Entrepreneurs) are reflected in its efforts to constantly improve the quality of services on the Polish detective services market, and to respect the principles of professional deontology, especially ethical considerations during the execution of accepted orders.  What deserves special prominence, these efforts have become a determinant of the adoption in the jurisprudence of Polish common courts of the definition of the Polish Federation of Detectives® (Associated Entrepreneurs) as the only representative of the professional group of detectives in Poland. [i]

Bearing in mind the aforementioned goal of improving the quality of detective services in the private security and safety sector, the goal to ensure the proper and uninterrupted exercise of the detective profession in accordance with its teleologically justified function located in the sphere of the profession of public trust, the Polish Federation of Detectives® (Associated Entrepreneurs) feels entitled, but also obliged to take a position on behalf of licensed detectives on the urgent need to make legislative changes in the field of regulations governing the rules for the provision of detective services.

The current Detective Services Act of 6 July 2001, [ii]
The explanation provided by the Deregulation Act of June 2013,[iii] does not correspond to the contemporary realities of the market and the needs of practice in this regard, which is detrimental not only of the profession itself, but also – and perhaps above all – to the beneficiaries of these services. The normative solutions adopted 15 years ago, after subsequent destructive "amendments" ,became a proverbial phantom, which – due to the passage of time –  lost its axiological significance. If Władysław Wolter is to be believed, that concurrent legislative reality constitutes a point of reference of assessing the times, it is unfortunate to say that the current Act on Detective Services will not be regarded fondly.

II. Polish Federation of Detectives® (Associated Entrepreneurs) – Representative of Polish Detectives

 

First of all, due to the aforementioned characteristics of the Polish Federation of Detectives® (Associated Entrepreneurs), it seems fully justified and without excessive pretentiousness to formulate the postulate that the Polish Federation of Detectives® (Associated Entrepreneurs) – with its experience and realistic perspective to ensure the reliability of the detective services provided – has become a corporate entity, drawing its competence from the statutory authority as a representative of the Polish detective community, while candidates wishing to practice the profession of a licensed detective should be obliged to obtain membership in the structures of this Federation. As a consequence, the PFDSP's aspirations to become an professional self-regulatory body of Polish detectives would seem to be wholly justified.

 

III. Outlining the realistic jurisdiction of Polish detectives

 

It is of urgent importance to establish provisions that would clearly and unambiguously (in terms of their interpretation) determine the real competences and professional rights of the detective, while their possible enumeration in the enumerative catalogue could not lead to their unjustified narrowing – the current state of affairs can no longer be maintained, because it is a source of interpretative pathologies, it also does not allow detectives to socially perform their functions in accordance with their teleological purpose, as they do not have the necessary powers in this regard; thus, the modern interpretation of Article 2, Section 1 is undeserving of approval.

 

The justification for the above postulate is the objection of the Polish Federation of Detectives® (Associated Entrepreneurs) to the current statutory determination of the detective's rights referred to in article. 2 of the aforementioned act. It is correctly stated in the doctrine that the powers of the detective were defined negatively by the legislator, because the legislator stated that the detective cannot do what under other provisions belongs to the powers of state bodies and institutions. Therefore, in order to determine the scope of methods that are allowed for the detective, an in-depth analysis of many lower-order laws and legal acts is necessary, which in fact leaves a lot of reservations and doubts, also regarding the fulfilment of the standards of the nullum crimen sine lege poenali anteriori principle and the resulting nullum crimen sine lege certa rule. This is an allegation of great species importance, as the use of illicit methods by the detective entails criminal liability, and the creation of imprecise criminal laws is the greatest legislative sin.[i]

 

The current approach to the analysed art. 2 therefore creates not only a state of legal uncertainty, which in a democratic state of law does not deserve approval, but also does not give any real rights to the representatives of the detective profession, thus putting into question the actual possibility of a reliable and socially compatible exercise of this profession.  What is particularly significant and of the deepest concern, even a cursory analysis of the Act on Detective Services leads to the conclusion that this Act imposes numerous duties and obligations on the detective,[ii] formulating expressis verbis many prohibitions on the principle "the detective cannot",[iii] simultaneously imposing obligations on him in the field of civil and legal liability [iv] and threatening a criminal sanction [v] for violation of the provisions of the Act.[vi]

 

Bearing the aforementioned in mind, introducing regulations that would clearly and undoubtedly state the legal competences of the detective, while any attempts to re-evaluate them cannot become a pretext to teleologically narrow them down. 

 

IV. Procedures for acquiring professional qualifications

 

Subsequently, of the Polish Federation of Detectives® (Associated Entrepreneurs) upholds its objection concerning the procedure for obtaining a detective license pursuant to art. 29, the unjustified simplification of which was a consequence of the deregulation carried out in June 2013. In this state of affairs, restoration is required by the reliable basis of the standards applicable to candidates for the profession of detective, conditioning the possibility of obtaining an appropriate license, on the basis of a state or – for example – corporate examination - the current state of affairs can no longer be maintained, because it does not construct sufficient mechanisms constituting a barrier to the exercise of the profession of public trust for people unprepared for it or who do not have appropriate conditions and personal properties; thus, the modern wording of art. 29 section 1 does not deserve approval.

 

In the context of the legislation above, it should be emphasized that the legal justification for the release of the profession, its ratio legis, at least in theoretical terms, was the declared need to improve the quality of detective services, while reducing their prices. The Polish Federation of Detectives® (Associated Entrepreneurs) does not question in any way that many representatives of the profession who obtained their rights on the basis of liberalised criteria are excellent specialists and excellent professionals, who are factually present in the structures of the Federation itself, but nonetheless it must be said that research justifies the belief that the original legislative objectives have not been achieved.  In fact, instead of the desired improvement in the quality of detective services, there was a partial reduction in ambition in this regard, and the prices of professional detective services in their general trend turned out to be higher. Therefore, if it would not be possible to restore the exam guaranteeing the proper exercise of the profession by potential candidates, following the example of the regulations in force before deregulation, it would be necessary to postulate the establishment of an examination in the field of legal, forensic and criminological knowledge and the legal status of a detective and entrepreneur, which – it can be reasonably assumed – would become a selection mechanism with increased values in the field of protection of fundamental rights and civil freedoms, as well as in the field of freedom of economic activity.[i] 

 

The official deregulation of detective services was made under the slogan of making the freedom of economic activity more realistic, and it is difficult to objectively identify the accuracy of such a slogan.

In fact, it seems that – at least to some extent – the actual cause determining its implementation was the state's impotence in the face of a dangerous criminal image of crime, which at the beginning of the 2000s was terrifying, both in quantitative and qualitative terms. In the authenticity of the thesis put forward in this way, it strengthens the belief that the declared reason for the release of the detective profession would have to be followed by providing real rights to its representatives.  However, this hasn't happened - The state preferred to prepare a normative concept under the banner of economic freedom, while freeing itself from some of its basic duties in the field of private security, but without giving anything in return, at least not in terms of competence. A few months ago, the Polish Federation of Detectives® (Associated Entrepreneurs) argued through its representatives that "It is symptomatic that – according to data collected by the Polish Federation of Detectives® (Associated Entrepreneurs) – half of the detective agencies and practicing private detectives have organized themselves only recently, in the last 1.5 years, while the first half needed a quarter of a century (1989-2014), and this disproportion – in the light of the latest data – is constantly growing, often to the detriment of the beneficiaries (clients) of detective services, as well as for the professional ethos itself." [ii] 

 

It must therefore be clearly stated that the current formal requirements conditioning the possibility of obtaining the status of a detective appear to be insufficient. In this state of affairs, the Polish Federation of Detectives® (Associated Entrepreneurs) has repeatedly presented its postulates in this regard for several years, indicating the desired directions of change: 

 

Firstly,	We postulate the possibility of obtaining a license under new conditions, i.e. compulsory training without an examination –  by persons with legal or administrative education and persons who, in their profession, performed activities recognized by the Act on Detective Services as detective activities;
Secondly,	the need to pass the license examination by persons without legal, administrative or practice education should be maintained in the profession in which the activities recognized by the Act on Detective Services as detective activities were performed;
Thirdly,	It should also be possible for persons holding a detective license to employ persons as an assistant detective, working for the detective, under his supervision and within his competence. Such persons would have to meet the requirements of the Act on Detective Services regarding the requirements for candidates for detectives and be entered in the register of employed employees kept by a detective agency (or possibly reported to KW/KM/KP of the Police).  A person working as a detective assistant would have the opportunity to gain the necessary work experience in the profession and see if they are suitable for this profession and whether they wish to continue it in the future. Finally, it seems absolutely necessary to prohibit giving agencies, offices, companies, companies, etc. names that may mislead the public about the services offered (detective agency, detective services, detective agencies, etc.) and the use of the professional title "detective" by persons without a detective license.[iii]

 

On this opportunity, it would be necessary to create a normative basis for the exercise of the profession of detective services by detective assistants, who could acquire the necessary experience and knowledge under the guidance of a licensed detective before their independent admission to provide these services – the current state of affairs can no longer be maintained, because it does not allow the necessary experience to be obtained by persons appointed to practice the profession of public trust.

 

The Polish Federation of Detectives® (Associated Entrepreneurs), respecting previously acquired rights, does not postulate the withdrawal of licenses obtained since the deregulation of the verification exam. However, Polish Federation of Detectives® (Associated Entrepreneurs) should be granted the right to verify candidates for the profession of detective, as well as the detective assistant - through established procedures (supervised by the authorized head of the Ministry of Internal Affairs), including organizing and conducting examinations for two-stage licenses.

 

Recognition of rights acquired in connection with the deregulation act, i.e. the detective's license obtained on this basis, should result in the new Act on Detective Services recognising these licenses as a first-degree detective's license, entitling to perform detective activities without the right to access personal data of a specific case. This category of detectives would not be able to independently perform detective services – the condition for practicing the profession in this respect would have to be employment by an entity entered in the register of regulated activities on the basis of a second-degree detective license obtained.

 

Thus, taking into account the previous postulate in view of the new regulation of verification of candidates for the profession of detective, it would be necessary to introduce regulations specifying the procedure and conditions for the acquisition of second-degree licenses, authorizing to direct the performance of detective services (activities) – conducting activities in this area on their own account with access to personal and classified data with a mandatory entry in the register of regulated activities as an entity authorized to conclude contracts for the provision of detective services, which has a permanent address for administrative purposes, i.e. own or leased place  (office) of business activity.

 

The validity of the indicated data in light of the required official registration should determine the right to sign contracts regarding the provision of detective services, not only the fact of having a valid detective license. 

 

The proposed division of competences of the scope of participation in the performance of business activities in the sphere of detective services into first-degree detective licenses and second-degree detective licenses results from over 2 years of analysis of the detective market in Poland.

 

Complaints received by the PFDSP Management Board on entities providing detective services illustrate very negative phenomena that occurred after the introduction of the deregulation act (also of the detective profession), including

 

·    Lack of any permanent place of business or registered office – often the place of contact with the customer is a restaurant, vehicle, park, etc. or  an purchased virtual address

·    Failure to conclude contracts, or concluding contracts with numerous errors, while failing in guaranteeing the customer's rights, as well as avoiding the explanation of these rights to the beneficiaries.

·    Failure to perform obligations arising from concluded contracts or non-financial settlement in accordance with the concluded contract; lack of the required final report and failure in handling of personal data, in accordance with the Personal Data Protection Act;

·    not having the required official registrations to perform detective services (MSW, REGON, CEIDG, ZUS, US), because after obtaining a license, its holder did not work in an entity authorized to conduct business activity in the field of detective services, or did not fulfil the obligation to register business activity on its own account or after registering it, suspended or deregistered it and continued to perform detective services – without any required official registration, and – as a consequence – without the required fees to ZUS and the Tax Office and third party liability insurance.

 

The Polish Federation of Detectives® (Associated Entrepreneurs) is an association whose members conduct their activities in the field of detective services in a transparent manner, in accordance with the adopted Code of Ethics of the Detective, the principles of which are disseminated in order to be applied by all Polish detectives. 

 

 

V.  Introduction of detective-client confidentiality  and abolition of the obligation of self-declaration

 

There is an urgent need to make the detective's secret a reality, which should become an absolute secret, like an attorney's secret or the so-called secret of confession, and it is also necessary to release the detective from the specific obligation of self-determination, defective in its teleological basis – the current state of affairs can no longer be maintained, because it creates uncertainty for the beneficiaries of detective services, who cannot give the detective full trust, and without it efficient and honest cooperation between them is not possible; thus, the contemporary wording of art. 12, section 3, Art. 23a section 3 and Art. 25 are underserving of approval.

 

Therefore, the Polish Federation of Detectives® (Associated Entrepreneurs) wishes to express its deep concern about the normative treatment of its professional secrecy. Apart from the fact that until the conclusion of the contract with the principal (client), the activities listed in the provision are not detective services and the person performing them acts on the basis of general provisions, hence the provisions of the Act on Detective Services with all its consequences do not apply to it, also in the field of criminal liability for failure to report a crime pursuant to art. 240 of the Penal Code, it should be said that the detective's secret is a normative illusion, and this is because it is not absolute and – as such – can be repealed by the procedural body in principle at any stage and under any pretext. In such state of affairs, a potential beneficiary of detective services, gathering evidence of his innocence, may thus commit self-determination through a detective, who should be the guarantor of his security as a secret holder, and not a source of information to his disadvantage. In order to achieve this goal and restore economic turnover based on positively valued social trust, it is also necessary to release the entrepreneur conducting business activity in the field of detective services from the toxic obligation imposed on him immediately after the conclusion of the agreement referred to in art. 2 section 1 and consisting in notification in writing of its conclusion to the authority conducting criminal proceedings or proceedings in cases of fiscal crimes and fiscal offenses, if it follows from the content of this agreement that it may be related to the case in which the proceedings are conducted.

 

VI. Summary

 

According to the authors of these de lege ferenda proposals, it was rightly raised in the literature on the subject "that – despite justified and deserving of full realization of the ambitions of representatives of the environment – the detective profession in Poland, in its elitism, is, unfortunately, not exclusive, its ethos – at least in the best and fullest sense of the word – is therefore located more in the sphere of possible desires and ideas than in the field of actually existing circumstances. The validity of such a statement is determined by defective, and – at least – leaving a lot of insufficiency – statutory regulations, determining the place and role of the detective as a profession. This act, while not imposing sufficient requirements for the selection of candidates for the profession of detective, does not sufficiently protect its exclusivity, and thus to some extent – the quality of the services offered. This diagnosis, despite the pessimism contained in it, was made and, as it seems, a bit exaggerated and is probably too  enthusiastically, because there are factual doubts about the recognition of the elitism of Polish detective work. However, if it is true to assume that this elitism is to be determined by the special function of a given group in society, then the following question should be asked – in the context of the previous considerations – whether even this elitism can be demonstrated, since the relevant law does not grant the detective any essentially formal powers to perform this function. Therefore, if this elitism, with which the ethos of each profession is immanently linked, is a value in itself, it is worth remembering that this value was lost during the deregulation carried out in 2013, when – exposing the reasons for economic freedom – the requirements for gaining access to the detective profession were reduced, which, although it benefited from increasing free market competition, at the same time, the quality of detective services was reduced, although – contrary to forecasts – it was not accompanied by – at least visible – a decrease in their prices, and the nodal objectives of this deregulation, at least those declared officially, were not achieved. At the same time, the number of irregularities of the representatives of the profession in the area of its ethical aspects has increased. Nevertheless, Polish detective studies seem to occupy a special and distinctive position among other comparable European countries. The opportunities arising from this have been noticed by the Polish Federation of Detectives® (Associated Entrepreneurs), which continues in its efforts to constantly improve not only the quality of services provided, but also to build new standards in the ethical dimension, as best evidenced by the Code of Detective Ethics adopted by its authorities. These efforts were also reflected in the admission of the Polish Federation of Detectives® (Associated Entrepreneurs) to the membership of the Internationale Kommission der Detektiv-Verbände, where the Polish Federation can not only gain new experience, but also make a creative contribution to the development of European detective work, becoming its leader. "[i]

 

VII. Conclusions

 

Bearing in mind the aforementioned we propose in particular order the following:

1. To establish the Polish Federation of Detectives® (Associated Entrepreneurs) as a statutory environmental representative of licensed Polish detectives on a professional self-government basis with the right to participate in the licensing procedure and compulsory membership;
2. Restoration of the state or corporate professional examination conditioning the ability to practice the profession of detective, while respecting acquired rights;
3. Introduction of a two-stage division of detective licenses;
4. Establishment of the position of assistant detective;
5. To properly regulate the normative powers belonging to the detective upon positive revaluation;
6. Materializing the concept of detective's professional secrecy by equating it with attorney's secrecy;
7. To abolish the obligation of self-declaration referred to in art. 25

 

Consistently, we postulate the inclusion of the Polish Federation of Detectives® (Associated Entrepreneurs) – as a representative of the professional environment – in the system of state security organization next to protective formations. 

Authorized by the PFDSP Board
Marcin Berent & Wiesław Jan Modrakowski
Warsaw 31 March, 2016

 

__________________________________________
[i] See M. Berent, W.J. Modrakowski, Etyka zawododu detektywa w kontekście standardardu minimalnej Internationale Kommission der Detektiv-Verbände, „Krytyka Prawa”, vol. 8, No. 1 of 2016, p. 15 and the source indicated therein.

[ii] I.e of Laws of 2002  No. 12, item 110, as amended The Act, hereinafter referred to as the "Act".

[iii] See the Act of 13 June 2013 amending the acts regulating the performance of certain professions, i.e.  of Laws of 2013, item 829, which entered into force on 1 January 2014

 

[iv] Yes: T.R. Aleksandrowicz, Komentarz do ustawy o usługach detektywistycznych, Warszawa 2002, especially pp. 75 et seq.

 

[v] Duties and duties expressis verbis expressed in the Act, see e.g. art. 1, section 1, which reads as follows: "The Act defines the rules for conducting business activity in the field of detective services, the rights and obligations of detectives and the rules and procedure for acquiring the right to perform detective services"; cf. Art. 6. in the following words: "The detective should, when performing the activities referred to in art.  2 section 1, be guided by the principles of ethics, loyalty to the ordering party and special care not to violate the freedom and rights of human and citizen"; cf. also art.  10. in the following words: "During the performance of activities, the detective is obliged to carry a license and present it at the request of the person to whom the activities relate, in such a way that the interested party has the opportunity to read and write down the name and surname of the detective and the name of the authority that issued the license"; cf. also: art.  11. in the following words: "Detective when performing the activities referred to in art. 2 section 1, 1, is obliged to  [...]"; cf. also: art. 11a. in the following words: "The detective is obliged to notify the authority keeping the register of persons to whom licences have been issued, hereinafter referred to as the "register of detectives", of a change in the data referred to in 40 act 2 point 1 or 2, within 7 days from the date of changing these data"; cf. also: art. 12, section  1. in the words: "The Detective is obliged to keep confidential the source of information and the circumstances of the case, about which he learned during the performance of the activities referred to in art.  2 section 1"; cf. also: art. 12, section  2. in the following words: "The detective is also obliged to maintain secrecy after ceasing to perform the activities referred to in art.  2 section  1"; cf. also: art. 13. in the following words: "The detective is obliged to draw up and provide the employing entrepreneur with a final written report on the activities performed in a given case [...]";cf. also art. 23 act 1. in the following words: "Entrepreneur conducting business activity in the field of detective services is obliged to [...]"; cf. also: art. 23a section 1. in the following words: "An entrepreneur conducting business activity in the field of detective services, who is a natural person, is obliged to keep confidential the source of information and the circumstances of the case, about which he learned in connection with the performance of the contract concluded with the principal, referred to in art.  2 section 1"; cf. also: art. 23b point 1. in the following words: "Entrepreneur conducting business activity in the field of detective services is obliged to prepare a final written report on the activities performed [...]"; cf. also art. 24(1. in the following words: "Entrepreneur conducting business activity in the field of detective services is obliged to conclude a civil liability insurance contract for damage caused during the performance of detective activities"; cf. also: art. 25. in the following words: "An entrepreneur conducting business activity in the field of detective services is obliged, immediately after the conclusion of the agreement referred to in art. 2 section 1, notify in writing of its conclusion the authority conducting criminal proceedings or proceedings in cases of fiscal crimes and fiscal offenses, if the content of this agreement indicates that it may be related to the case in which the proceedings are conducted "; cf. also: art. 25a act. 3. in the following words: "The entrepreneur is obliged to destroy the processed personal data collected in the course of conducting business, at the latest immediately after removal from the register"; cf. also: the same section 4. in the following words: "The Entrepreneur is obliged to apply the provisions of the Act of 29 August 1997 on the protection of personal data when processing personal data, with the exception of art. 25 1 and Art. 32–35.

 

[vi] Prohibitions of this type see e.g. art. 7. in the following words: "When performing the detective services referred to in art. 1, the detective may not use technical means and methods and operational and reconnaissance activities reserved for authorized bodies under separate provisions"; cf. art. 8 section 1. in the words: "The detective may not entrust the processing of personal data to another entity"; cf. also: art. 25a. 2. in the following words: "The Entrepreneur may not entrust the processing of data referred to in section 1, to another entity, with the exception of a detective performing the activities referred to in in art. 2 section 1 (all underscores – aut.)".

 

[vii] Liability of this type, see e.g. art. 14. in the words: "The Detective shall be liable for damage caused during the activities referred to in art. 2 section 1, and as a result of providing false information, on the terms set out in the Civil Code "; cf. art. 23c. in the following words: "An entrepreneur conducting business activity in the field of detective services shall be liable for damage caused during the performance of these services and as a result of providing false information, on the terms set out in the Civil Code (all sub-clauses – aut.)".

 

[viii] In the scope of the detective's criminal liability for attacking sanctioned norms enunciated in the Act, see chapter V.

 

[ix] For more information on the topic, serach: E. Kazienko, Ustawowe prawa i obowiązku detektywa dokument elektroniczny, niepublikowany.

 

[x] Yes: M. Berent, W.J. Modrakowski, Etyka…, op. cit., p. 13.

 

[xi] Ibidem, pp. 13 et seq.

 

[xii] Yes: M. Berent, W.J. Modrakowski, Etyka… op. cit., p. 12 et seq. and the source indicated in footnote 19.

 

[xiii] Yes: M. Berent, W.J. Modrakowski, Etyka… op. cit., pp. 18 et seq.