Nabrdalik v Poland

Name of case: Maciej NABRDALIK and Maciej MOSKWA v. Poland Court: European Court of Human Rights ("ECtHR") Application nos.: 30614/22 and 30848/22 Open

In August 2023, Privacy International together with ARTICLE 19 intervened in the case of Nabrdalik v Poland before the European Court of Human Rights.

The case concerns the apprehension of journalists and searches of their phones and cameras close to the Polish-Belarusian border, in November 2021. Polish authorities had placed a three-kilometre-wide stretch of land along the Belarusian border under a state of emergency, where a dire humanitarian situation was unfolding. The measure forbid access by journalists and human rights defenders and prohibited the taking of photographs or video footage that showed the border or its infrastructure.

The applicants, Mr Maciej Nabrdalik and Mr Maciej Moskwa, two photojournalists, were aggressively apprehended by Polish military officers, and their car, phones and cameras were searched. They were later released without charge. In their application to the ECtHR, they argued in particular that:

• excessive force and offensive language was used towards them at the time of the arrest, contrary to Article 3 of the European Convention on Human Rights ("ECHR");
• they were deprived of their liberty for about one hour and twenty minutes without any legal basis and by military officers who did not have the authority to arrest people, and were not informed of the reasons or basis for their arrest and their appeals were not examined by courts, contrary to Article 5 of the ECHR;
• the intervention of the military officers and search of their clothes and car as well as their phones and cameras amounted to a violation of their private life and of the right to respect for their correspondence, contrary to Article 8 of the ECHR; and
• they were arrested when they were collecting journalistic materials, and so the search of their phones and cameras might lead to disclosure of confidential sources of information, contrary to Article 10 of the ECHR.

In their intervention, PI and ARTICLE 19 assisted the ECtHR in its assessment of the compatibility of digital device searches with Articles 8 and 10 of the ECHR, addressing:

1. the impact on fundamental rights of known forms of digital device extraction methods used by authorities around the world and the types of data obtained;
2. comparative case law from other Contracting and non-Contracting States with regard to extraction of data from digital devices in immigration enforcement and border control contexts; and
3. the necessary and appropriate safeguards pursuant to Articles 8 and 10 of the Convention for the protection of journalists and media organisations against the search and seizure of their digital devices.

We show how mobile phone extraction ("MPE"), used by the Polish military officers in this case, impacts human rights and is prone to abuse around the world. MPE involves the collection, review and analysis of much greater amounts of information than would a search of a home, and of highly sensitive data. Recent deployments by immigration and other authorities around the world were successfully challenged as violations of privacy and data protection rights - see R (HM, MA and KH) v SSHD in the UK, and the Refugee Phone Search case in Germany.

Our intervention therefore urges the Court to ensure that the search and seizure of digital devices is subject to strong justification and strict judicial oversight. Specifically, we submit that seizing and searching the digital devices of journalists and others must:

• Be in accordance with the law and be authorised by an independent judicial authority. Prior authorisation is especially important when searches of digital devices are involved and its standard must be higher when journalistic material is concerned;
• Be based on reasonable suspicion that an offence has been committed, not merely the fact that an individual is crossing the border; and
• Be necessary and proportionate to the aim pursued (for example, not extracting more data than is necessary).

Our full submissions are attached.

The case was communicated to the Polish government by the Court in February 2023 and the proceedings are ongoing.

This case is relevant beyond its immediate facts - the invasive and unlawful search of digital devices at the border is a widespread practice around the world, especially against migrants and refugees, and is the subject of extensive litigation. This case is an opportunity for the Court to address the harms of digital device searches on all rights holders.

*Photo by Jannik on Unsplash