The revelations concerning surveillance of political figures in Poland via the Pegasus spyware, purchased with funds from the Ministry of Justice, have sparked national and international criticism. This scrutiny of inadequacies in Poland’s legal system for addressing state surveillance has prompted calls for reform. The Office of the Commissioner for Human Rights and civil society organizations demand the creation of an independent oversight institution to provide effective legal remedies.
Polish Watergate
In July 2021, the media reported that Pegasus, an intrusive spyware developed by the Israeli company NSO Group, had been utilized globally to target journalists, human rights defenders, lawyers and political leaders. First media reports about the possible use of Pegasus by the Polish government were published already in 2018. They showed that the Central Anti-Corruption Bureau (Centralne Biuro Antykorupcyjne, CBA) had bought the Pegasus spyware with funds transferred by the Ministry of Justice. These revelations were the result of the supervisory procedure conducted by the Supreme Audit Office (Najwyższa Izba Kontroli, NIK) in 2018. In the same year Citizen Lab named Poland as one of the operators of NSO’s spyware. The topic reached the media headlines again in December 2021 when media informed about the spyware victims in Poland, including the senator Krzysztof Brejza, who was under surveillance while he was the head of the main opposition party’s campaign for the parliamentary elections in 2019. Other targets included the attorney representing Donald Tusk, Roman Giertych, the prosecutor Ewa Wrzosek who had criticised the Prosecutor General on numerous occasions, employees of the Supreme Audit Office, former PiS politicians, the leader of the farmers’ organisation AGROunia and a local opposition politician.
Initially, government officials did not deny that Pegasus is used by Polish authorities. Instead, they emphasised its legality, arguing that all decisions on surveillance had been ordered by the courts. Later on, the leader of the ruling majority and deputy Prime Minister in charge of security, Jarosław Kaczyński, admitted that Poland bought Pegasus but denied the surveillance of the political opposition. Furthermore, a PiS politician mentioned that “several hundred people” are under surveillance annually using Pegasus spyware. In late 2021, media reported that the NSO Group had blacklisted Poland, which made it impossible for Polish authorities to purchase or use Pegasus.
International reactions: rule of law is key
The PEGA Committee, established by the European Parliament (EP) in March 2022, found that “the abuse of Pegasus in Poland has to be viewed in the full context of the rule of law crisis in the country” where judicial independence is undermined, and public institutions were captured by “installing party loyalists”. The recommendations by the EP and PACE deal with the necessity to conduct an inquiry about the use of Pegasus in Poland. Furthermore, the EP recommended to “restore the independence of the role of the Public Prosecutor-General from the Minister of Justice in order to guarantee that investigations into alleged breaches of fundamental rights are free from political considerations”. Without it, the accountability of public officials in Poland is seriously undermined by the direct political control of the prosecutor service by the Public Prosecutor General – the office held by the Minister of Justice. The prosecutor investigation regarding surveillance against Ewa Wrzosek was rejected in late 2021. The court quashed this decision and ordered to initiate an effective investigation. The investigation into the case of Krzysztof Brejza is still pending, while the relevant evidence in this case was damaged.
How to saddle the Pegasus?
The legal system in Poland has never offered any effective legal remedy against illegal state surveillance. Despite the 2014 ruling of the Constitutional Tribunal and the 2016 Venice Commission opinion, the oversight of state surveillance powers was not improved. Instead, the Anti-terrorist Act of 2016 broadened state surveillance powers as it allows for the surveillance of foreigners suspected of terrorist activities without judicial order, limited courts’ powers to review illegal evidence in criminal trial and dismantled the institutional safeguards.
Judicial authorisation is required for the most invasive surveillance (e.g. wiretapping). Decisions are being made by a bench consisting of one judge, and the court’s approval of wiretapping does not require to be justified in written form, which makes it easier to authorise than to reject surveillance measures. No notification is required after the surveillance was completed. The collection of metadata (of e.g. telecommunication data) is reviewed by district courts twice a year on the basis of statistical reports submitted by the police and special services, which do not allow for the review of individual cases.
The Office of the Commissioner for Human Rights and civil society organizations highlighted the existing oversight problems of covert surveillance in Poland, but they were de facto excluded from any meaningful debate in the decision-making process in recent years. In 2019, the Office of the Commissioner for Human Rights published the report “How to saddle Pegasus” in which it recommended the creation of an independent oversight institution tasked with handling individual complaints regarding covert actions, including surveillance by state police and intelligence services. The debate about the effective remedy in surveillance cases in Poland has also been initiated before the European Court of Human Rights (ECHR). In September 2022, the Court held a hearing in which the (in)effectiveness of the existing remedies was discussed from the perspective of Article 8 of the ECHR.
In September 2023, the Senate Special Inquiry Committee published its final report which identified those responsible for the purchase, use and abuse of the Pegasus spyware in Poland. It also formulated a set of recommendations to improve oversight mechanisms. First, it recommends a clear distinction between police services tasked with law enforcement and special services tasked with intelligence and counterintelligence powers. Second, it suggests that police services should be overseen by an Ombudsman as well as courts, and special services by government and parliament. The proposed solution seems inadequate, given that government oversight lacks true independence, and the parliament is unable to address individual cases or complaints.
The Senate Committee also offers an alternative solution with the creation of an independent “institution of legal protection” that would follow the suggestions from the “How to saddle Pegasus” report and cooperate with independent institutions like the Commissioner for Human Rights, the data protection authority and the Supreme Audit Office but also with the Parliamentary Committee on Special Services. Third, the report recommends implementing an obligation of notification informing the person against whom the surveillance was conducted. This would allow for the use of the available legal tools, including the powers of this new “institution of legal protection”.
Conclusions
The newly elected parliamentary majority is planning to establish a new parliamentary committee examining the use of the Pegasus spyware with full investigatory powers. Prior, the Senate Committee was not granted such powers which undermined its effectiveness. Combined with the proposed changes to the prosecution service like an independent Prosecutor General, this increases the chances for an effective investigation and real accountability of those involved in illegal surveillance. Adam Bodnar, former Commissioner for Human Rights, has recently been appointed as the Prosecutor General and will be responsible for drafting and implementing the Senate Committee’s recommendations. Furthermore, the coalition agreement of the new majority formulated the common goal of introducing the obligation of notification into legislation. As argued, there will be no effective oversight of the surveillance state powers without independent and expert institutions. That is why, in the Polish context, dealing with the rule of law crisis – meaning the transformation of captured institutions into independent bodies capable of providing effective legal remedies – stands out as a key factor in enhancing oversight of intelligence services and investigating the Pegasus scandal.