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Polish surveillance draws fire at top European rights court 

In a case brought by activists and lawyers frustrated with Poland's flagging rule of law, Warsaw insists that its surveillance operations are legal.

STRASBOURG, France (CN) — Warsaw faced off Tuesday against a group of five Polish lawyers and activists, all working on human rights, who complained to the European Court of Human Rights about wiretapping and mass data collection by security agencies.

“Surveillance laws do not provide enough guarantees,” lawyer Małgorzata Mączka-Pacholak told the Strasbourg-based court. She is representing Mikołaj Pietrzak, a human rights lawyer; Dominika Bychawska-Siniarska and Barbara Grabowska-Moroz, who both work for the Polish advocacy organization the Helsinki Foundation for Human Rights; and Wojciech Klicki and Katarzyna Szymielewicz of the Panoptykon Foundation, a Polish anti-surveillance organization. 

Under a 2016 national security law, Polish authorities no longer must inform anyone being surveilled. The plaintiffs say this leaves citizens without an opportunity to challenge what information has been collected. They used an administrative procedure in 2017 to complain to several Polish agencies, including the prime minister and the internal security agency, about Poland's broad expansion of its surveillance powers.

Poland claims surveillance is needed to combat terrorism and criminal gangs. “Surveillance is inextricably linked to both internal and external security,” Poland’s agent, Jan Sobczak, told the eight-judge panel. 

Warsaw further argued that its challengers complained to the rights court before exhausting their legal options in Poland. Established in 1959 by the European Convention of Human Rights, the rights court requires applicants to pursue all domestic remedies before filing a complaint with the court. 

Mączka-Pacholak's clients insist meanwhile that there is no possibility of a fair and independent review for them in Poland amid the country's ongoing problems with rule of law. The ruling Law and Justice party has moved to overhaul Poland's judiciary since coming to power in 2015 — changes that critics say have quelled judicial independence. Mączka-Pacholak said judges approve 98% of requests for surveillance under the “rubberstamping process” in effect. 

Sobczak dismissed these concerns, arguing Poland had sufficient legal safeguards in place. He described a semiannual reporting process of mass data collection and said prosecutorial oversight is required when there is a request for surveillance against individuals, like wiretapping. 

There are more than 180 cases about rule of law in Poland pending before the ECHR, which has been critical thus far of the changes to Poland’s judiciary. Last year, the ECHR slammed the appointment process to a judicial oversight body, finding it was not independent of the legislature. In March the court found that Poland violated the fair trial rights of a former judge on the Supreme Administrative Court who was removed from the bench following the overhaul.

Meanwhile in Luxembourg, the European Union’s high court has been fining Poland since October 2021 for failing to implement its rulings. The European Court of Justice ruled the country's judicial disciplinary chamber illegal last year.

In a rare move, Tuesday's hearing saw several of the applicants arguing their own case before the panel. “Trust is not a sufficient mechanism of control,” Pietrzak, who represents opposition politicians and activists in Warsaw, said in his remarks. He argued that without an independent and external review, assurances from the Polish government that data is being safeguarded and procedures followed are meaningless. 

The court accepted 11 interventions from third parties in the case and gave the floor to four on Tuesday to present arguments. Anne Charbord, who spoke on behalf of the U.N. special rapporteur on human rights, argued that beyond Poland’s systems of redress, the very legal definition of terrorism was problematic. The definition is "overly broad and vague,” which leaves room for abuse of power, she said. 

In an interview after the hearing, Grabowska-Moroz said they were happy with how their arguments went. "It's good for the court to see how surveillance affects everyday life,” she told Courthouse News.

Grabowska-Moroz spoke in her presentation about how, in her work as a project coordinator for the Helsinki Foundation for Human Rights, she was constantly forced to consider which of her communications might be under surveillance. For fear she might reveal sensitive information, Grabowska-Moroz said she couldn’t speak over the phone to anti-government protesters or activists helping migrants. 

A ruling from the rights court isn’t expected until at least next year.

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