In late 2017 and early 2018 activists from Panoptykon Foundation and the Helsinki Foundation for Human Rights as well as attorney Mr. Mikołaj Pietrzak filed complaints with the European Court of Human Rights. The attorney pointed out that uncontrolled surveillance violates not only his privacy but most importantly the rights and freedoms of his clients. Activists added that as active citizens they are at a particular risk of being subject to government surveillance.
HFHR has been criticising the lack of control over government surveillance for years
We have no doubt that intelligence agencies can use their broad powers without any real limitations. But we have no way to verify this because the law does not allow access to information about whether an individual has been subject to surveillance, even if that surveillance has been completed and the individual was not charged. Therefore, as citizens we are defenceless and we cannot protect our rights.
Polish Government forced to answer questions
The ECtHR decided that our complaints meet formal requirements and communicated the case to the Polish government, which has to answer the question of 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.
More than privacy at stake
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, which 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 that 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 have changed in July 2014
However, the so-called Surveillance Act and the Counter-terrorism Act, which were both adopted in 2016, instead of curbing the appetite of intelligence agencies for information about citizens only expanded their powers, without introducing any mechanisms for 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. In a June 2016 opinion the Venice Commission pointed out these irregularities. The obligation to inform the data subject about the fact that intelligence agencies accessed their telecommunication data comes from multiple ECtHR (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.