In 2014 the Polish Constitutional Tribunal demanded that an independent oversight body be established, that individuals who had been subject to intrusive surveillance methods be notified, and that procedural safeguards for secret surveillance be tightened. Amendments to the law in 2016 broadly ignored these provisions however, and instead expanded surveillance powers. Two cases now brought before the ECHR by lawyers and NGOs therefore argue that Polish law is in violation of Articles 8 and 13 by failing to provide effective legal remedy against violations of the right to privacy.
In November 2019, the European Court of Human Rights (ECHR) communicated two cases regarding surveillance laws binding in Poland. Cases were submitted in 2017-2018 by a criminal defense lawyer (Pietrzak v Poland, 72038/17) and NGO activists (Bychawska-Siniarska and others v Poland, 25237/18), including the author of this contribution. We argue that in light of Polish law amended in January 2016, their rights under Article 8 ECHR are not protected.
Surveillance law in Poland
Domestic regulations regarding surveillance and oversight of security services (so called ‘special services’) were established in the 1990s. Legislation adopted during the post-communist transition was tailored to new security and political challenges and human rights standards. Despite this, Polish law has not provided a mechanism through which individual complaints could be heard by an independent body tasked with overseeing the actions of special services. Such an independent review of the use of surveillance techniques was confirmed in the recent ECHR case-law (Zakharov v Russia, Szabó and Vissy v. Hungary), which underlined its importance as a procedural guarantee against any possible abuse of power, especially when legal provisions allowing for the use of covert techniques tend to be general.
In light of the ECHR jurisprudence [Klass v Germany], decisions to use covert methods — especially the most invasive ones like wiretapping, which interfere with secrecy of correspondence — need to be warranted by an independent body. The consequent results of surveillance could then be used as lawfully-gathered evidence in a trial, which would allow for the possibility to verify if the actions undertaken by special services were necessary or lawful. According to Polish law, the court’s approval is required for wiretapping and other techniques of so-called “operational control” — the most invasive surveillance tools. However, police and special services have no obligation to notify individuals when intrusive surveillance methods have been terminated without gathering evidence of any crime being committed. Without notification, there is no chance for ex-post oversight to verify how police or special services used their powers.
Furthermore, new law adopted in January 2016 provides for broader access to so called internet data. Primarily, the new law is meant to implement the July 2014 Constitutional Court ruling, in which it found Polish law needed to be improved with regards to the oversight of access to telecommunication data and protection of professional secrets (i.e. attorney-client privilege). This provided a chance for parliament to come up with better provisions in a reformed bill. This opportunity was squandered and unfortunately the amended law entered into force in February 2016 did not introduce any complaint mechanism, nor did it establish independent oversight of special services. Therefore, it did not correctly implement the Tribunal’s judgment.
Instead, the amendments allowed police and the special services to conclude agreements with communication service providers regarding the use of their infrastructure without the participation of their employees at any time, thereby making access to mass telecommunications data even easier. The law allowing this [i.e. Act on Police, Article 20c para. 3], adopted in January 2016, introduced only one new oversight method: special services need to submit statistical reports to the court, which provide information on how often telecommunication data were gathered, on what grounds, and in which cases. However, without access to case files and with large workloads, in practice, judges are not able to verify if each access to data was justified. That’s why we see review of those reports as completely illusory, only imitating judicial oversight; purely statistical data is not able to show whether access to data was necessary.
Finally, the special services’ powers were further broadened as a result of anti-terrorism laws adopted in May 2016, which we actively expressed a critical stance towards. The law allows the National Security Agency [Agencja Bezpieczeństwa Wewnętrznego, ABW] to wiretap foreigners suspected of terrorist activities, without court warrants. It also broadens powers, allowing the ABW to gather other information about foreigners without introducing any meaningful oversight or complaint mechanisms for those who might be affected by these actions.
How to protect your privacy rights?
As Polish law does not provide any specific control procedure regarding the conduct of the special services, it becomes a true challenge to assess which domestic remedies need to be exhausted to file a complaint to the European Court of Human Rights. Furthermore, it’s almost impossible to provide evidence about secret methods used by police and the special services against a given person (due to the lack of notification), unless he or she eventually obtained access to it in their criminal trial.
In order to overcome this procedural challenge, the applicants in Pietrzak v Poland and Bychawska-Siniarska v Poland lodged complaints to the chiefs of the special services, under Article 227 of the Code of Administrative Procedure. It is the general basis for lodging a complaint in any administrative proceeding in Poland. We filed complaints because we suspected to be under surveillance — through the methods of access to metadata or even wiretapping — without having been informed.
We emphasized that in light of the advocacy nature of our professional and public activities, there is a justified concern about the special services secretly collecting information about us, which could be used to intimidate us or hinder progress of our legal cases. We argue that failure to inform the person who is subject to surveillance — combined with a lack of independent oversight over the conduct of these activities and the lack of justification for such activities — constitutes a breach of constitutional privacy rights.
The complaints submitted under Article 227 were dismissed by the special services as unfounded on various grounds. First, they argued that information about being subjected to surveillance methods is classified, therefore cannot be provided to the person concerned. Second, they emphasized that under Polish law there is no obligation of notification, so information whether anyone was under surveillance cannot be provided. Third, complaints were found by the Head of the Military Counterintelligence Service (SKW) as inadmissible, because ‘operational and exploratory activities’ carried out by the SKW cannot be subject to complaint proceedings. Finally, the special services argued the existing legal framework is the best form of oversight control in a democratic state governed by the rule of law. This last ‘argument’ was supported by the statement that according to Article 7 of the Constitution of Poland, state bodies operate on the basis and within the limits of the law.
The above replies only confirm the findings of ECHR in Zakharov v Russia. The Court found that the effectiveness of remedies is undermined “by the absence of a requirement to notify the subject of interception at any point, or an adequate possibility to request and obtain information about interceptions from the authorities”. The EU Fundamental Rights Agency found that low levels of awareness about the existence of remedies and non-implementation of the right to access information, and/or the notification obligation, may hamper the effectiveness of existing remedies. The Polish case shows that a lack of remedies results in a lack of adequate procedural guarantees for individuals, who need to look for other supplementary tools of legal protection against state surveillance (i.e. general complaint in administrative proceedings), which also tend to be ineffective.
The road to Strasbourg
Complaints to the ECHR were first based on the argument that the applicants’ right to privacy under binding legislation (Article 8 ECHR), has been infringed upon by. Second, that Polish law does not provide effective remedy against alleged violation of our rights (Article 8 in conjunction with Article 13 ECHR).
On 27 November 2019, the ECHR communicated the case to the Polish government, asking three questions. First, can the applicants be considered victims to violations of Article 8 ECHR? Second, the Court referred to the issue of the “quality” of the Polish law — whether the alleged interference was provided for by “law”, within the meaning of Article 8 §2 of the Convention, and whether the interference can be considered as “necessary in a democratic society” and “proportionate”? Finally, the ECHR asked whether the applicants had at their disposal an effective legal remedy?
The shortcomings of Polish regulations on surveillance (in particular the law amended in January 2016) have been analysed i.a. by the Venice Commission in a June 2016 opinion. The Commission found that currently, “there is no effective oversight of the metadata collection by an independent body, which might verify whether the police uses its powers in a reasonable manner, in accordance with good investigative practices”. Furthermore, “procedural safeguards and material conditions set in the Police Act for implementing secret surveillance are still insufficient to prevent its excessive use and unjustified interference with the privacy of individuals”.
Our road to Strasbourg did not involve Poland’s Constitutional Tribunal or verification if its 2014 ruling has been implemented correctly. Due to Poland’s ongoing constitutional crisis, the key player in securing constitutional rights — the Constitutional Tribunal — does not, in fact, fulfil its constitutionally decreed functions. Changes introduced into the Tribunal in 2015-2016 led to a situation where three judges were unlawfully appointed; a case dealing with this issue is currently pending before the ECHR. The media reports close connections between the president of the Tribunal and the political majority.
Cases regarding the compatibility of amendments to the Police Act adopted in January 2016, submitted to the Tribunal by the Ombudsman Office (cases no. K 9/16 and K 35/16), are still pending and it does not seem they will be ruled upon soon. That is why a lack of effective protection of constitutional rights at the domestic level resulted in the need for other tools of protection, such as review by the ECHR. The ECHR has already proven to be an important actor in providing European standards of guaranteeing protection against abuse of power by state authorities entitled to conduct covert surveillance actions against its citizens.
The Venice Commission was right when stating that “the Polish authorities are free to design a model which would ensure effective control of the surveillance operations, provided that it involves an independent body which conducts effective review of specific operations and has the necessary legal tools to detect and combat abuses”. Complaints in Pietrzak and Bychawska-Siniarska and others cases show that a model of effective control still has not been established in Poland. Numerous EU Member States established at least some institutions and procedures that could secure at least a minimal level of privacy protection.
Expert bodies like the Oversight Committee for the Intelligence and Security Services in the Netherlands, judicial authorities like the Investigatory Powers Tribunal in UK, and parliamentary committees with investigative powers in Germany, are key examples of institutional solutions aimed at limiting and reviewing secret services. None of these exist under Polish law, neither is any legal remedy available when privacy rights have been violated by covert actions of special services.
The recent ECHR case law (Zakharov v Russia, Szabó and Vissy v. Hungary) underlines the need for adequate procedural guarantees in order to secure a minimum of protection against abuse of powers. Pietrzak v Poland and Bychawska-Siniarska and others v Poland constitute a chance to further develop the ECHR case law and further operationalise Article 8 and 13 of the Convention in context of covert surveillance powers. Finally, on the domestic level, the ECHR ruling might provide an important factor in improving and amending Polish law by introducing necessary procedural guarantees (a viable complaint mechanism being one of them), which should have been established already following the 2014 ruling of the Constitutional Tribunal.