ARTICLE 19 welcomes today’s decision of the European Court of Human Rights in the case of Polish human rights activists concerning mass secret surveillance. The decision is an important win for limiting unrestricted police and intelligence agencies’ access to communications data. It delivers a strong statement in support of safeguards for better protection of the rights to freedom of expression and privacy.
ARTICLE 19 has previously urged the Polish Government to end mass surveillance and ensure transparency and oversight of the work of the secret services and law enforcement agencies. We have also criticised the use of surveillance spyware against former opposition figures and raised concerns about extended statutory powers of the secret services.
Today, the European Court of Human Rights (the Court) found a violation of the European Convention of Human Rights (Article 8, which guarantees respect for the right to private and family life) in respect of the complaints concerning the operational-control regime, the retention of communications data for potential use by the relevant national authorities, and the secret-surveillance regime under the Anti-Terrorism Act.
Barbora Bukovská, ARTICLE 19’s Senior Director for Law and Policy, commented:
Keeping mass surveillance measures in check is a necessary safeguard against abuse by police and intelligence agencies. Unauthorised surveillance can have devastating effects on human rights.
ARTICLE 19 believes that such secret measures do not only significantly interfere with the right to privacy. As we have seen over and over, they also have a chilling effect on the freedom of expression of journalists, NGOs, activists and lawyers, among others.
Today’s decision of the European Court solidifies protection against such intrusion. Intrusive, secret surveillance measures, like those in this case, should be subject to authorisation and review by an independent judicial authority.
Background
The case of Pietrzak and Bychawska-Siniarska and Others v. Poland was initiated by a group of Polish human rights NGOs and a criminal defence lawyer. They challenged the lack of effective oversight and remedies available under Polish law for those subjected to secret surveillance by state agencies. They argued the laws enabling secret surveillance breached their right to private and family life and the right to an effective remedy under Articles 8 and 13 of the European Convention on Human Rights, respectively.
Under Polish law, a person subjected to covert surveillance, for example in the form of monitoring their communications online, does not have the right to access information about the methods of surveillance used against them. This rule continues to apply even after the cessation of surveillance activities that have not resulted in the identification of any crime. This creates a situation whereby a person may be a victim of interference with their right to privacy by covert surveillance conducted by various government actors without having a recourse to an effective remedy.
Today, the European Court ruled, unanimously, that there had been three violations of Article 8 of the European Convention of Human Rights which guarantees the right to respect for private and family life. Namely, it found that
- The mere existence of the Polish legislation – its secret nature, the wide scope of the measures, and the lack of effective review – in itself constituted an interference with the rights of the applicants.
- In light of all the shortcomings in the operational-control regime of the surveillance, Polish legislation did not provide sufficient safeguards against excessive recourse to surveillance and undue interference with individuals’ private life. The absence of sufficient guarantees was not sufficiently counterbalanced by the current mechanism for judicial review.
- Polish legislation, which required information and communication technologies providers to retain communications data in a general and indiscriminate manner for possible future use by the relevant national authorities, was not “necessary in a democratic society”.
- The secret surveillance provisions in the Anti-Terrorism Act also failed to satisfy the requirements of Article 8 of the Convention. The Court noted that the imposition of secret surveillance and its application in the initial three-month period were not subject to a review by an independent body that did not include employees of the service conducting that surveillance.
In October 2020, ARTICLE 19, together with Privacy International and the Electronic Frontier Foundation, submitted a third-party intervention to the Court in the case.