Pietrzak and others v Poland
PI, together with Article19 and EFF intervened to outline how unrestricted surveillance of communications data interferences with the right to privacy and threatens freedom of expression.
Name of case: Pietrzak v Poland and Bychawska-Siniarska and others v Poland
Court: European Court of Human Rights
Application nos: Application No. 72038/17 and Application No. 25237/18
Case Status: Open
In October 2020, PI, Article19, and the Electronic Frontier Foundation (EFF) intervened in the case of Pietrzak ao v Poland before the European Court of Human Rights.
The case concerns the lack of effective oversight and remedies available under Polish law for individuals subjected to secret surveillance by government agencies.
The applications were filed by five applicants who argued:
- That it was likely that the applicants had been the subjects of secret surveillance operations by various government agencies; and
- That the laws governing surveillance in Poland were in breach of Article 8 and 13 of the European Convention on Human Rights.
The applicants include Mr. Pietrzak, a criminal defense lawyer and chair of the Warsaw Bar Association, Ms. Bychawska-Siniarska and Ms. Grabowska-Moroz, members of the Helsinki Foundation for Human Rights, and Mr. Klicki and Ms. Katarzyna Szymielewicz, members of Warsaw-based NGO Foundation Panoptykon.
Under Polish law, an individual who has been the subject of a secret intelligence gathering operation, including having their telecommunications and digital communications monitored and analysed, cannot access any information about operations which targeted them, even after the operations have been concluded and no criminal charges have been brought against them. Polish intelligence agencies are not under any obligation to provide the subjects of covert surveillance with any information about the data which was gathered about them.
As a result, an individual who may be a victim of a breach of their right to privacy in the course of secret surveillance by various government agencies does not have recourse to any effective remedies.
PI’s joint intervention with Artice19 and EFF focussed on the importance of limiting police and intelligence agencies’ access to communications data – which includes metadata and subscriber data and covers any data apart from the content of a communication. We highlighted how direct and unrestricted access to communications data constitutes a serious interference with the right to privacy. Additionally, we submitted that there are minimum safeguards which governments must adopt when accessing communications data in order to ensure that the right to privacy under Article 8 of the Convention remains effective. These include a basis of reasonable suspicion, independent authorisation, effective oversight and notification to the subject or target.
We also explained that it is essential for any legal framework regulating surveillance to include special protections for the communications data of civil society organisations, similar to those enjoyed by lawyers and the press in many jurisdictions. This is a necessary safeguard to protect the right to freedom of expression and avoid the chilling effect of mass surveillance .
The case was communicated to the Polish government by the European Court of Human Rights in November 2019 and the proceedings are ongoing.