| Applicant name | PIETRZAK AND BYCHAWSKA-SINIARSKA AND OTHERS |
| Applicant type | natural person |
| Number of applicants | 5 |
| Country | Poland |
| Application no. | 72038/17 25237/18 |
| Date | 28/05/2024 |
| Judges | Marko Bošnjak , president , Peter Paczolay, Krzysztof Wojtyczek, Erik Wennerstrom, Raffaele Sabato, Lorraine Schembri Orlando, Ioannis Ktistakis |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation |
| Reason | Quality of law |
| Type of privacy | Informational privacy |
| Keywords | Secret surveillance |
| Facts of the case | The case concerns, from the perspective of the requirements of Article 8 of the Convention, the domestic legislation authorising a system of secret surveillance (operational monitoring and the retention of telephone, postal and electronic communications data (” communications data “) for the purposes of possible access by the competent national authorities). It concerns in particular the question of the existence in domestic law of a remedy enabling persons who believe they have been subjected to secret surveillance to complain and challenge its lawfulness (Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms (” the Convention “) in conjunction with Article 8 thereof) |
| Analysis | Scope ratione materiae of secret surveillance: It considers that what matters most is that the provisions setting out a catalogue of offences for which secret surveillance may be put in place are sufficiently predictable in their application and are worded in such a way that the national authorities can only take the measure in question for sufficiently serious offences. As can be seen from the conclusions of the Constitutional Court’s judgment, it notes that the Polish legislature has sometimes used very general formulations, to the point that the cases in which the authorities could resort to such a measure in practice could give rise to confusion. It notes that, as a result of the findings of the High Court, some of the provisions of the ABW Act specifying the catalogue of offences for which surveillance could be carried out by the agency in question were set aside due to their lack of clarity, and some of the similar provisions of the laws relating to the other relevant State services were found to be compatible with the Constitution, subject to an interpretation in accordance with the indications set out by the Constitutional Court. Scope ratione personae of secret surveillance: As to the question of who may be targeted by secret surveillance, the Court observes that it is clear from the findings of the Constitutional Court that the scope ratione personae of surveillance is broad. It notes that under Polish law, applications for authorisation to carry out operational monitoring must specify precisely the person targeted by the surveillance in question, which implies that surveillance of this type is always targeted. However, the Court is mindful that the applicable legislation does not appear to impose any obligations concerning the content of the decision authorising the surveillance. It considers that the circle of persons likely to be subject to secret surveillance should be specified in the decision in question, and that the authority granting the authorisation should provide sufficient reasons for its decision on this point. The duration of secret surveillance measures: The Court observes that under the relevant legislation, a judge may authorise an interception measure for a period not exceeding three months. It also notes that an extension is possible by means of a court decision for a further period of up to three months, if the initial grounds for establishing the surveillance are still valid. Authorization of interceptions: It notes that the applicable legislation leaves the authorities considerable latitude in determining in which situations it is justified to resort to the non-judicial emergency procedure, which gives rise to risks of abuse of that procedure and of circumvention of the requirement for prior authorisation. It considers that, given the dangers that recourse to such a non-judicial emergency procedure entails for the private sphere of the individual subject to secret surveillance, the applicable legislation should contain sufficient safeguards to ensure that its use is sparing and limited to duly justified cases. Furthermore, even if, under the law, surveillance must cease within five days if no judicial authorisation is granted, it has not been established that the applicable law contains sufficient safeguards against the repetitive use of the measure in question. As to the scope of the examination carried out by the court issuing the authorisation, the Court notes that in Poland the court deciding on the authorisation to implement the surveillance measure has at its disposal only the material submitted to it in support of the application by the State services seeking such authorisation. In the light of the foregoing considerations, the Court considers that the authorisation procedures existing in Polish law, as they operate in practice, are incapable of ensuring that secret surveillance measures are applied only where there is genuine justification for doing so. ‒ Procedures to be followed regarding the retention, consultation, examination, use, communication and destruction of intercepted data: The Court notes that the Polish legislature has provided, in each of the laws regulating the implementation of operational monitoring by various police and intelligence services, a framework for the destruction of material collected through such monitoring which proves to be useless for the achievement of the aims pursued by the State service concerned. Provisions relating to the monitoring of communications covered by professional secrecy: It observes that, as a result of its findings on this point, the Venice Commission recommended that the Polish legislature consider stricter rules in this area. The Court also has regard to the fact that the Commissioner for Human Rights has expressed concerns in relation to these same issues. However, in the present case, the Government have not provided him with any guidance as to the interpretation given by the domestic courts to the term ” necessary from the perspective of the judicial system “. The Court recalls that it has held that provisions relating to secret surveillance measures potentially infringing lawyers’ professional secrecy should satisfy particularly stringent conditions of clarity and precision in order to be considered ” law “. In these circumstances, the Court considers that the rules relating to the protection of professional secrecy in secret surveillance operations do not satisfy the criterion of foreseeability of the law. Monitoring the application of secret surveillance measures: The Court considers that, unlike the systems for monitoring covert surveillance operations, the system currently in place in Poland does not ensure effective and independent control over the State services carrying out the surveillance in question. In view of the shortcomings identified above, it is of the opinion that, as currently organised, the disputed mechanism for monitoring the application of operational control measures is not capable of providing adequate safeguards against abuse. Notification of communications monitoring and available remedies: The Court observes that in the present case the Government has not demonstrated, by examples taken from domestic case-law, that the exercise by the applicants of the remedies invoked by it would have enabled them to establish the possible establishment of surveillance concerning them, to have its legality reviewed and to obtain compensation in the event of unlawful surveillance. The Court further notes that the Government do not mention any other remedy which, in their view, a person wishing to complain about secret surveillance could pursue, leading it to conclude that there are no effective remedies in this area. It therefore considers that, by depriving the individual targeted by such a measure of the effective possibility of challenging it retrospectively, domestic law fails to provide an important safeguard against the improper use of secret surveillance. Retention of communications data for the purposes of possible access by the competent national authorities: the Court considers that the national legislation, under which ICT service providers are required to retain communications data in a generalised and indiscriminate manner for the purposes of possible access by the competent national authorities, is insufficient to limit the interference with the applicants’ exercise of their right to respect for their private life to what is ” necessary in a democratic society “. It therefore concludes that there has been a violation of Article 8 of the Convention also in relation to the retention of communications data for the purposes of possible access by the competent national authorities. The secret surveillance regime of the anti-terrorism law: the Court considers that the authorisation of the secret surveillance measures by the head of the ABW, to whom the officials carrying them out are subordinate, and the subsequent supervision of the application of those measures by a member of the executive branch with political responsibilities and a member of the public prosecutor’s office who does not offer adequate guarantees of independence from the executive branch do not provide the necessary safeguards against abuse, especially since the persons subjected to surveillance are never informed of it and have no effective remedy which would allow them to challenge the lawfulness of the surveillance carried out against them. The Court further notes that, under section 9 § 8 of the Anti – Terrorism Act, in the version applicable at the material time, the Chief Prosecutor of the National Prosecutor’s Office had the power to order the destruction of irrelevant material. However, since the current Chief Prosecutor of the National Prosecutor’s Office is also Minister of Justice, the Court considers that the impartiality and independence of the competent prosecutor are insufficiently guaranteed. |
| Other Article violation? | No need to examine the complaint made under Article 13 of the Conventi |
| Damage awarded | It a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable on the date of settlement : EUR 2,602.92 to the applicant Mikołaj Pietrzak, plus any amount that may be payable by the applicant in respect of tax, costs and expenses ; 252.58 EUR to the applicant Barbara Grabowska-Moroz, plus any amount that may be payable by that applicant in respect of tax, costs and expenses ; EUR 300 to the applicant Dominika Bychawska-Siniarska, plus any amount that may be payable by that applicant in respect of tax, costs and expenses ; |
| Documents | Judgment |