| 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 | Holds that there has been a violation of Article 8 of the Convention, concerning the complaint relating to the operational control regime; Holds that there has been a violation of Article 8 of the Convention in so far as the complaint concerns the retention of communications data for the purposes of possible access by the competent national authorities ; Holds that there has been a violation of Article 8 of the Convention, concerning the complaint relating to the secret surveillance regime of the anti – terrorism law ; |
| Reason | Quality of Law |
| Type of privacy | Informational privacy |
| Keywords | |
| Facts of the case | |
| Analysis | Scope of secret surveillance measures ▪ Scope ratione materiae of secret surveillance Scope ratione personae of secret surveillance ‒ The duration of secret surveillance measures Authorization of interceptions ‒ Procedures to be followed regarding the retention, consultation, examination, use, communication and destruction of intercepted data ‒ Monitoring the application of secret surveillance measures ‒ Notification of communications monitoring and available remedies 246. In conclusion, the Court considers that the operational control regime, as currently organised in Poland, does not provide adequate and effective safeguards against arbitrariness and the risk of abuse inherent in any surveillance system. In particular, it is of the opinion that the scope ratione materiae and ratione personae of the system relating to the surveillance in question is not circumscribed with sufficient precision, that the total duration of the surveillance in question is questionable and that the rules relating to a factual justification for it are insufficiently detailed. While the surveillance system in question is admittedly accompanied by a mechanism of a priori judicial review , the Court is not convinced that the authorisation procedure, as applied in practice, is capable of ensuring that surveillance is used only where it is ‘ necessary in a democratic society ’. In this regard, it notes, in particular, that the applicable legislation does not require the judge ruling on the authorisation of surveillance to verify the existence of “reasonable suspicion ” with regard to the person targeted by the measure in question and, in particular, to determine whether there are indications that he or she may be suspected of planning, committing or having committed criminal acts or other acts likely to give rise to secret surveillance measures, such as acts endangering national security. It considers that it would be desirable for the existing authorisation procedure to be supplemented by other procedural mechanisms for a posteriori control. , such as, where surveillance has not led to criminal prosecution, a complaint open to persons concerned about possible surveillance concerning them, with the possibility of an application for judicial review and review by an independent body. It observes that as it stands, the law does not appear to contain appropriate provisions, and notes that the law also does not impose a requirement to notify the person concerned, even after a certain period of time and even where this does not compromise the purpose of the surveillance measure. Finally, it considers that the disputed legislation also does not adequately protect communications covered by lawyers’ professional secrecy. All of the above-mentioned shortcomings lead the Court to conclude that national law does not provide sufficient safeguards to prevent excessive use of surveillance and undue interference with individuals’ private lives, the absence of which is not adequately counterbalanced by the current mechanism of judicial review. 247. For the reasons set out above, the Court rejects the Government’s objection of failure to exhaust domestic remedies and concludes that the national operational control regime, considered as a whole, does not meet the requirements of Article 8 of the Convention. Retention of communications data for the purposes of possible access by the competent national authorities For the reasons set out above, 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 has previously held that authorisation of secret surveillance measures by a non-judicial body may be compatible with the Convention provided that the body in question is sufficiently independent of the executive branch. It further recalls that it has held that, in the light of contemporary terrorist threats, there may be urgent situations in which the compulsory application of judicial authorisation is not feasible, would be counter-productive due to a lack of specific knowledge or would simply amount to a waste of valuable time ( Szabó and Vissy , cited above, § 80). Such measures must, however, be subject to ex post facto review , which is generally required in cases where the surveillance has been authorised in advance by a non-judicial authority ( idem , § 81). In the present case, 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 Convention |
| Damage awarded | 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 |