The European Court of Human Rights (ECHR) on 28 May decided in the case Pietrzak and Bychawska-Siniarska and Others v. Poland that the right of respect for private life was violated by the Polish government. From the press release:

Given the secret nature and wide scope of the measures provided for by the Polish legislation and the lack of effective review by which persons who believed that they had been subjected to surveillance could challenge this alleged surveillance, the Court found it appropriate to examine the legislation at issue in abstracto. It considered that the applicants could claim to be the victims of a violation of the Convention, and that the mere existence of the relevant legislation constituted in itself an interference with their Article 8 rights.

The Court then held that all the shortcomings identified by it in the operational-control regime led to a conclusion that the national legislation did not provide sufficient safeguards against excessive recourse to surveillance and undue interference with individuals’ private life; the absence of such guarantees was not sufficiently counterbalanced by the current mechanism for judicial review. In its view, the national operational-control regime, taken as a whole, did not comply with the requirements of Article 8.

It further considered that the national legislation, under which information and communication technologies (“ICT”) providers were required to retain communications data in a general and indiscriminate manner for possible future use by the relevant national authorities, was insufficient to ensure that the interference with the applicants’ right to respect for their private life was limited to what was “necessary in a democratic society”.

Lastly, the Court concluded that the secret-surveillance provisions in the Anti-Terrorism Act also failed to satisfy the requirements of Article 8 of the Convention, noting, among other points, that neither the imposition of secret surveillance nor its application in the initial three-month period were subject to any review by a body that was independent and did not include employees of the service conducting that surveillance.

More information:

• Press release.
• Judgment (in French).