No control over surveillance by Polish intelligence agencies. ECHR demands explanations from the government

The European Court of Human Rights demanded the Polish government to provide an explanation on surveillance by intelligence agencies. It’s a result of complaints filed with the Strasbourg court in late 2017 and early 2018 by activists from Panoptykon Foundation and Helsinki Foundation for Human Rights as well as attorney Mr. Mikołaj Pietrzak. The attorney points out that uncontrolled surveillance violates not only his privacy but most importantly the rights and freedoms of his clients. Activists add that as active citizens they are at a particular risk of being subject to government surveillance.

We have been criticising the lack of control over government surveillance for years. We have no doubts that intelligence agencies can use their broad powers without any real limitations. But we have no way to verify it because the law does not envision access to information about whether an individual has been subject to surveillance – even if surveillance has finished and the individual has not been charged. Therefore, as citizens we are defenceless and we cannot protect our rights.

The ECHR decided that our complaints meet formal requirements and communicated the case to the Polish government which will have to answer the question whether its actions violated our privacy (Article 8 of the European Convention on Human Rights) and the right to an effective remedy (Article 13 of the Convention). After the government shares its statement we will be able to comment on it as complainants.

What’s at stake is not just the right to privacy. As attorney Mikołaj Pietrzak explains, the basis of the attorney-client relationship is trust that can only exist on condition of confidentiality. Attorneys are obliged to protect legal privilege, especially when it comes to defence in criminal cases. Current laws make it impossible. This infringes on the rights and freedoms of their clients, and in particular their right to defence.

The Polish Constitutional Court pointed out that the law should change already in July 2014. However, so-called Surveillance Act and Counter-terrorism Act adopted in 2016, instead of curbing intelligence agencies’ appetite for information about citizens only expanded their powers, without introducing any mechanisms of control. Compared to other EU countries, where independent control over the activities of intelligence agencies is not surprising to anyone, Poland stands out in a negative way. These irregularities have been pointed out i.a. by the Venice Commission in a June 2016 opinion. The obligation to inform the data subject about the fact that intelligence agencies accessed their telecommunication data results from multiple ECHR (e.g. Szabo and Vissy v. Hungary, Saravia v. Germany or Zakharov v. Russia) and CJEU judgements (e.g. Tele2 Sverige).

The complainants are represented by attorney Małgorzata Mączka-Pacholak.