On 28 May, the European Court of Human Rights (ECtHR) ruled that Polish legislation authorizing a “secret-surveillance regime” concerning “operational control” and the retention of various forms of communications data violated Article 8 (right to respect for private and family life and correspondence) of the European Convention on Human Rights (ECHR).
In 2016 Poland enacted legislation which amended the Police Act and the Anti-Terrorism Act. The amending legislation had the effect of strengthening national authorities’ surveillance abilities. The applicants consisted of five people: a lawyer (chair of the Warsaw Bar) and four employees of various Warsaw-based NGOS. The applicants submitted complaints to the Prime Minister and heads of various police/intelligence organizations pertaining to legal provisions concerning secret surveillance. They alleged that the legislation in question allowed various police/intelligence services to collect data and monitor their telecommunications without their knowledge. The applicants believed that due to their professions and public activities, they were likely currently being monitored under the legislation. Due to the wording of the legislation, the authorities were not required to inform anyone that they were being monitored even after any such surveillance had come to an end. They argued this was a breach of the Polish Constitution, as their lack of knowledge prevented them from being able to have the lawfulness of the surveillance evaluated by the courts. The applicants also argued that the failure to disclose to individuals that they are under surveillance in conjunction with the lack of legal review options made the legislation incompatible with the rule of law in a democracy and infringed upon their legitimate interests. In response to the applicants’ complaints, they received the response that the “State special services had recourse to the secret-surveillance measures provided for by the relevant legislation and that the methods and means used for that purpose were confidential and protected by the legislation governing the relevant services and the Confidential Data (Protection) Act.”
The applicants then took their case before the ECtHR alleging that the legislation violated the Article 8 right to privacy and Article 13 (right to an effective remedy). The ECtHR, when examining the claims, noted that the legislation in question had effectively established a regime where almost any telecommunications or internet user could have their data intercepted and be completely unaware of it. They also noted that there was no way for anyone who suspects that they may be under surveillance to have a court review said surveillance. Because of these factors, the ECtHR deemed that the applicants did not need to prove that there was a material risk of them being placed under secret surveillance. The Court concluded that the mere existence of said legislation constituted a violation of Article 8 of the ECHR. Poland, in response to the applicants' claims and the finding of the ECHR, argued that under Article 8(2) of the ECHR, which allows for the right to be limited if it is “necessary in a democratic society”, justified the operational-control regime. The ECtHR disagreed with this assessment, stating that the language used in the legislation would not be sufficient to ensure that this was the only way that the operational-control regime was put into place. Regarding the collection and retention of telecommunications data and secret surveillance, the ECHR stated that both were far too broad and indiscriminate and thus amounted to a violation of the convention. The Court declined to evaluate any possible Article 13 violation due to the finding of Article 8 violations.
This ruling has been welcomed as a win for democracy. Jakub Jaraczewski, who works for the Berlin-based NGO, Democracy Reporting International, stated that the ruling is “clearly a resounding victory against a system that coupled bad law with bad practice of Polish courts signing off on surveillance based on misplaced trust in law enforcement authorities.”
Click here for the judgement in Pietrzak and Bychawska-Siniarska and Others v. Poland in French
Click here for the press release for Pietrzak and Bychawska-Siniarska and Others v. Poland in English