In the previous article, the actual scope of the amendment to the Act of 4 September 2008 on the protection of navigation and maritime ports was analyzed, which was supposed to be a remedy for any potential terrorist threat, which is in complete contradiction with the actual shape of the amended provisions.

A key controversial and highly questionable aspect is the issue of potential disciplinary or even criminal liability of a person who, in a situation of threat to critical infrastructure objects in Polish maritime areas, would make a decision to sink a floating vessel posing such a threat. The current regulations place such a person in a very difficult legal situation, which will be analyzed below.

In order to thoroughly assess the key aspects related to critical infrastructure in Polish maritime areas, it is necessary to analyze the provisions regarding the legal status of officers of the Border Guard, specifically its maritime component, police officers serving in the Police Water Commissariat in Gdańsk or in the Water Department of the Municipal Police Headquarters in Szczecin, as well as soldiers serving as part of the crews of Polish Navy ships.

Border Guard Officers' Responsibility

Starting with Border Guard officers, it should be mentioned that according to Article 1(2)(1) of the Act of 12 October 1990 on the Border Guard, the tasks of the Border Guard include protecting the state border on land and sea. Additionally, point 10 of the same provision lists supervising the exploitation of Polish maritime areas and ensuring compliance by ships with the regulations in force in those areas as tasks of the Border Guard. The powers of this formation have been defined in two legal acts.

The first act to mention is, of course, the aforementioned Border Guard Act. According to Article 14(1) of this Act, commanders of Border Guard vessels on inland waters and the territorial sea have the right, if required by reasons of state defense or the inviolability of the state border:

1. to instruct a ship to reduce speed, stop for inspection, and comply with the indicated course of passage;

2. to stop a ship, check documents concerning the ship and cargo, identify the crew of the ship and any passengers on board, inspect the cargo and search the ship's premises, as well as detain a person suspected of committing a crime;

3. to force a ship to call at a specified port if the captain does not comply with the issued orders.

Furthermore, according to Article 14(2) of the aforementioned Act, commanders of Border Guard vessels have the right to take actions referred to in paragraph 1, even when a ship on inland waters or the territorial sea:

1. takes on board or disembarks people against applicable regulations;

4. loads or unloads goods outside designated areas;

5. leaves port without border control;

6. establishes communication with the coast for criminal purposes;

7. fishes or exploits the waters and seabed in violation of applicable regulations;

8. enters a closed or dangerous area for navigation or fishing;

9. anchors outside the designated area;

10. violates navigation and transportation safety regulations;

11. violates sanitary or environmental protection regulations.

Moreover, paragraph 3 of the same provision extends the powers of the commander of a Border Guard vessel, but only to some extent, also to the exclusive economic zone. According to this legal norm, the powers referred to in paragraph 1 also apply when performing tasks related to the protection of the rights of the Republic of Poland in its exclusive economic zone, the status and scope of which are determined by separate provisions and international agreements.

Another legal act regulating the scope of powers of Border Guard officers serving as part of the crews of Border Guard vessels is the Act of 21 March 1991 on the maritime areas of the Republic of Poland and maritime administration. According to Article 50(5) of this Act, in the absence of a maritime inspection inspector on board a Border Guard vessel, the Border Guard may independently exercise the powers to:

a) control whether ships are authorized to perform the activities they carry out and whether they have the required permits,

b) control whether navigation or other activities are carried out in accordance with Polish law and international agreements,

c) detect marine environmental pollution caused by activities at sea and their perpetrators,

d) control whether ships meet the requirements for the protection of maritime navigation,

e) control whether the carrier, terminal operator, or ticket seller, within the meaning of RegulationNo 1177/2010, fulfills the obligations specified in Regulation No 1177/2010 on behalf of the territorial maritime administration authority.

How does this work in practice?

It is worth noting that when a ship on inland waters or in the territorial sea, despite a warning, does not stop and ceases actions that violate the regulations applicable in those waters, the commander of a Border Guard vessel may order a warning shot to be fired into the air, and then shots in front of and behind the ship.

If the ship still does not comply with the warning, the commander of the vessel may order it to be fired upon. The same rules apply during pursuit on the high seas. However, the use of shipborne weapons by Border Guard vessels against the pursued ship may only occur in exceptional circumstances and as a last resort when other means are insufficient to stop the ship or enforce obedience, but it should not aim to sink it (Article 18 and 25 of the Act of 12 October 1990 on the Border Guard (consolidated text Dz. U. of 2023, item 1080))

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The above-mentioned provisions are the basis for the performance of tasks by Border Guard officers in Polish maritime areas. However, the decision by an officer to use means of coercion in the form of firearms is extremely burdensome for the officer, especially considering the fact that they will be severely held accountable for such behavior by their superiors. Firstly, according to Article 43(2) of the Act of 12 October 1990 on the Border Guard, an Officer may be suspended from duty in the event of criminal proceedings being instituted against them for an unintentional offense, prosecuted by public accusation, or a non-fiscal or non-intentional fiscal offense, or disciplinary proceedings, if it is appropriate in the interests of the proceedings or the service - for a period not exceeding 12 months.

The phrase "may be suspended" is often treated by disciplinary superiors as imperative and somewhat automatic, and the officer is suspended from duty. This, of course, has far-reaching consequences for such an officer. According to Article 128(1) and (2) of the Act of 12 October 1990 on the Border Guard (consolidated text Dz. U. of 2023, item 1080), during the period of suspension from duty:

• 50% of the officer's due remuneration is suspended from the next payment date;

• the period of suspension from duty is not included in the officer's service period, on which the amount of remuneration, the amount of other monetary benefits, or the right to them, the length of annual leave, as well as other types of leave due to the officer, depends.

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Police Officers' Responsibility

The responsibility of Police officers will also be described from the obligation. However, it should be remembered that due to equipment, structures, and the scope of competence, this formation has little significance as a maritime law enforcement agency, as will be indicated below.

According to Article 1(2)(2) of the Act of 6 April 1990 on the Police, the basic tasks of the Police include the protection of public order and security, protection of individuals and property, prevention and detection of offenses, as well as tasks related to state defense and the inviolability of the state border.

Moreover, according to point 12 of the same provision, the tasks of the Police include the performance of tasks related to the protection of the maritime areas of the Republic of Poland and the prevention and detection of offenses committed in those areas. The tasks of the Police related to the performance of duties in maritime areas are specified in several legal acts, including the Act of 25 August 2006 on maritime safety and the maritime environment protection (consolidated text Dz. U. of 2023, item 2263).

The powers of the Police, as defined in the Act of 6 April 1990 on the Police, are extended to Polish maritime areas in accordance with the Act of 25 August 2006 on maritime safety and the protection of the maritime environment. Article 4(2)(10) of the Act of 25 August 2006 indicates that in the event of a threat to human life, health, or safety, the environment, or navigation, Police officers serving in the Police Water Commissariat in Gdańsk or in the Water Department of the Municipal Police Headquarters in Szczecin have the right to use measures and means necessary to neutralize the threat, including the use of weapons, only if the threat cannot be neutralized in any other way.

Additionally, Article 4(2)(11) of the same Act provides that the Police officer is entitled to use measures and means necessary to neutralize the threat, including the use of weapons, only if the threat cannot be neutralized in any other way, when the safety of navigation is at risk and when all other available means have been exhausted, and the danger is so imminent that it does not allow for immediate intervention by Border Guard vessels or other means of maritime administration.

Soldiers' Responsibility

The Polish Navy has been indicated, among others, in the amendment to the Act on the Protection of Navigation and Maritime Ports as the force that may be used to prevent, limit, or remove a serious and direct threat to ships, port facilities, and ports, as well as associated infrastructure, resulting from the use of a ship or floating object as a means of terrorist attack.

According to the Polish Defense Strategy, the Polish Navy is designated for defending the state's interests in Polish maritime areas, coastal defense, and participating in coastal defense operations in cooperation with other branches of the armed forces as part of a strategic defensive operation. In accordance with international commitments, the Polish Navy maintains capabilities to fulfill tasks related to ensuring security both within the Baltic Sea area and beyond it. The primary task of the Polish Navy is to defend and maintain the maritime communication lines of the country during crises and wars and prevent the blockade of the country by sea. During peacetime, the Polish Navy supports the activities of the Border Guard in the maritime territorial waters and exclusive economic zone as part of aligning the maritime forces of the Republic of Poland with alliance requirements.

The regulations concerning the suspension of soldiers from military service also apply to soldiers serving in the structures of the Polish Navy. According to Article 225 of the Act of 11 March 2022 on the Defense of the Homeland (consolidated text Journal of Laws, item 2305, as amended), a professional soldier may be suspended from military service if criminal proceedings are instituted against them for a crime or fiscal offense or unintentional offense prosecuted by public accusation, or disciplinary proceedings, if it is appropriate for the interests of the proceedings or service - for a period not exceeding 12 months. Also, a soldier suspended from military service, under Article 456 of the aforementioned act, has half of their last received basic pay suspended from the nearest payment date and the payment of permanent allowances, as well as payment of monetary benefits, including severance pay or cash equivalent for annual leave, is suspended.

Impact of Suspension Regulations on Soldiers' and Officers' Decisions During Service

One could wonder about the relationship between the above-mentioned regulations and the problems related to protecting critical infrastructure in Polish maritime areas. This relationship is quite obvious and self-evident.

Neither a Border Guard officer nor a police officer, nor a soldier serving in the structures of the Polish Navy, will independently decide, especially during peacetime, to open fire, let alone sink a civilian vessel posing a potential threat to critical infrastructure in Polish maritime areas.

Such a decision will not be made for a straightforward and rather prosaic reason. The awareness that such a person will be treated by their disciplinary superior in a manner that they will be "automatically" suspended from duty, with all the consequences described above, will act on the officer or soldier in a paralyzing manner.

Civil Liability

One of the most fundamental and surprising issues is that an officer who would decide to sink a vessel during peacetime would have to face very real and financially burdensome civil liability. It is worth noting that most insurances covering officers exclude protection in the case of disciplinary misconduct or commission of a crime (even unintentional). Furthermore, the Polish state does not protect officers in this regard, which further complicates the decision-making process aimed at protecting critical infrastructure at sea.

Conclusion

In conclusion, as long as the main factor influencing the decision of individuals responsible for the security of our country is the fear of disciplinary, civil, or criminal liability and the potential loss of a significant portion of their due remuneration and dismissal from service, all regulations concerning taking drastic measures against potential threats to the functioning of critical infrastructure at sea will remain "dead letters”.

To ensure the enforcement of regulations directly affecting the safety of critical infrastructure at sea, the perception of officers or soldiers by their disciplinary superiors would need to change from those automatically perceived as committing a transgression to those who are trying to enforce regulations aimed at ensuring safety.

Furthermore, in such situations, a certain legal protection would need to be provided for officers or soldiers, so that they do not fear civil liability when making difficult decisions aimed at protecting critical infrastructure at sea.

Przemysław Niewiński – Lawyer