European Court of Human Rights: secret surveillance in Poland violates citizens’ privacy rights
According to the precedent judgment announced on May 28, 2024 by the European Court of Human Rights, the operational-control regime, the retention of communications data, and the secret-surveillance regime under the Anti-Terrorism Act in Poland violate the right to privacy.
The judgment comes as a result of an application filed in 2017 by Wojciech Klicki and Katarzyna Szymielewicz (Panoptykon Foundation), Dominika Bychawska-Siniarska and Barbara Grabowska-Moroz (Helsinki Foundation of Human Rights), and advocate Mikołaj Pietrzak, the Dean of the Warsaw Bar Association and an associate with Doughty Street Chambers. Mikolaj Pietrzak was represented by advocate Małgorzata Mączka-Pacholak.
In their applications, they argued that the oversight of the Polish secret services’ activities is illusionary and violates their rights as active citizens. The ECHR judgement goes further: the lack of effective oversight affects all citizens, irrespective of their occupation.
The judgment clearly indicates the need to reform Polish regulations in the scope of surveillance. Especially the surveillance regime, the communication data regime, and the Anti-Terrorism Act need to be changed. The Court indicated that the application of existing national legislation also leads to the violation of privacy.
The extent of surveillance in Poland
In 2022 the Police applied 9,781 wiretaps but only 13 percent of cases (1,308) brought evidence for further penal proceedings. The remaining cases were sent to the Police archives and the people subject to surveillance remain unaware and cannot question the fact they were targeted.
The Tribunal indicated that the judiciary control in Poland is ineffective. The court only knows what the agency applying for authorisation of surveillance decides to reveal to the court. A “yes” is just a formality. A “no” – requires a written justification and is subject to appeal by the state agency. This mechanism creates a strong incentive for courts to rubber stamp motions filed by the police or other state agencies to allow surveillance. As a result the courts authorise as much as 99 percent of motions for wiretapping.
Also, wiretapping is just one, rather exceptional means of surveillance. Other means, like access of law enforcement to telecommunication metadata (billings, localisation), remain outside any form of external oversight. The court requires in its judgement that this be addressed by the state in its legislation.
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Case Pietrzak and Bychawska-Siniarska and Others v. Poland (applications nos. 72038/17 and 25237/18)
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