Disclosure to the press of a telephone conversation and storage of personal data in the context of a criminal investigation without the applicant being a suspect! Violation of the right to private life
JUDGMENT
Kaczmarek v. Poland 22.02.2024 ( app. no. 16974/14)
SUMMARY
The applicant was the wife of a minister at the time in question. In the context of a criminal investigation into corruption involving her husband, telephone conversations with her husband and son were published in the press. Personal data contained in these conversations were also stored and retained without her consent. She brought an action for breach of her privacy.
The Court reiterated its settled case law that telephone conversations, although not expressly mentioned in Article 8(1) of the Convention, are covered by privacy. The ECtHR considered that the disclosure of the recorded telephone conversation of a person who had not been subjected to the investigation went beyond the scope permitted by the law and concluded that the interference with the applicant’s privacy was not “in accordance with the law” as required by Article 8 § 2 of the Convention and that, consequently, there had been a violation of that provision.
As regards the transcripts of other telephone conversations she had had with her husband and son, the Court further found that the material was not destroyed but was stored and included in the investigation files despite the applicant’s objection. It therefore concluded that the lack of sufficient clarity in the legal framework and the absence of procedural safeguards relating specifically to the destruction of the applicant’s communications amounted to a breach of Article 8 § 2 of the Convention.
The ECtHR awarded EUR 5,000 for non-pecuniary damage.
PROVISION
Article 8
Article 13
PRINCIPAL FACTS
The applicant is a Polish national born in 1960 and living in Gdynia (Poland). She is the wife of J.K., who at the time of the facts at issue was Minister of the Interior of Poland.
The case concerned the disclosure by the prosecutors, at a press conference, of Mrs Kaczmarek’s private telephone calls, which had been recorded in the context of an investigation linked to the alleged obstruction of an anti-corruption investigation. It also concerned the retention of data relating to S. Kaczmarek obtained through the secret surveillance. In particular, in 2007 the Central Anti-Corruption Bureau (Centralne Biuro Antykorupcyjne – ‘the CAB’) and the Warsaw District Prosecutor’s Office were investigating allegations of influence peddling. As part of these proceedings, a sting operation using a provocateur was planned for 6 July 2007 at the Ministry of Agriculture. However, information about the planned operation was leaked, the operation failed and the so-called ‘land scandal’ (afera gruntowa) broke out. Several senior politicians, including the Minister of Agriculture and the Minister of the Interior, were involved. The applicant’s husband was allegedly responsible for warning the Minister of Agriculture about the planned operation. Consequently, he was removed from his post on 8 August 2007.
On 11 July 2007 the Warsaw District Prosecutor’s Office together with the Internal Security Agency (Agencja Bezpieczeństwa Wewnętrznego – ‘the ISA’) opened a pre-trial investigation into the alleged obstruction of the trapping operation. The applicant’s husband was a witness in those proceedings (V Ds. 324/07). On 29 August 2007 the material relating to the alleged offence of false testimony by the applicant’s husband was separated into a new case (V Ds. 400/07). He was a suspect in those proceedings.
In the course of the proceedings, ISA carried out secret surveillance of the applicant’s husband (Operation GAMMA). The applicant’s telephone calls were monitored by the ISA. In addition, the Warsaw District Prosecutor’s Office, in the context of Operation GWIAZDA 4, obtained recordings and transcripts of the applicant’s telephone calls.
On 28 October 2009 the Warsaw District Prosecutor’s Office discontinued the investigation (V Ds. 324/07) on the ground that it had not been established that a criminal offence had been committed. The proceedings against the applicant’s husband, concerning the false statement, were discontinued on 30 November 2009 (V Ds. 400/07).
In the meantime, D.B. and J.E., Deputy Prosecutors General, together with prosecutors from the Warsaw District Prosecutor’s Office and representatives of the ISA and the CAB, convened a press conference. The press conference took place on 31 August 2007 and was broadcast live on public television. It was organised in order to inform the public about the ‘land scandal’.
During the conference, information obtained through the use of secret investigative methods was made public. In particular, J.E. played the following recording of a conversation between the refugee and K.K., who, at the time, was the Chief of Police (Komendant Główny Policji).
On 14 December 2008, Newsweek Polska magazine published an article with information about the investigation into the obstruction of the entrapment operation (see paragraphs 6-8 above). The pre-trial investigation into the offence of public dissemination of investigative material was discontinued on 21 June 2010.
Subsequently, in the spring of 2009, several articles were published on the website of the daily newspaper Dziennik (then Dziennik Polska-Europa-Świat), which reported that the newspaper had access to copies of the recordings of the applicant’s telephone calls made during the undercover surveillance operation.
On 15 May 2009 the Prosecutor’s Office of the Praga District of Warsaw opened a pre-trial investigation into the disclosure of confidential investigative material to journalists working for Dziennik. The proceedings were discontinued on 12 February 2010 on the grounds that it was not possible to identify the perpetrator.
Relying on Articles 8 (right to respect for private and family life/correspondence) and 13 (right of effective remedy) of the Convention, Ms Kaczmarek complained, in particular, that the personal data and surveillance information concerning her had been disclosed at a press conference, that the surveillance material had been retained and that she had no legal remedy for these complaints.
THE DECISION OF THE COURT…
The Court reiterated its settled case law according to which telephone conversations, although not expressly mentioned in paragraph 1 of Article 8 of the Convention, are covered by the concepts of “privacy” and “correspondence” referred to in that provision. The Court further reiterated that any “interference by a public authority” with the exercise of a right guaranteed to the applicant under paragraph 1 of Article 8 would violate that provision unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and, moreover, is “necessary in a democratic society” to achieve them.
The Court noted that the domestic courts had held that the decision to disclose the recording of the applicant’s conversation had been taken in accordance with Article 156 § 5 of the Code of Criminal Procedure (see paragraphs 16 and 18 above).
The Court noted that, while at the relevant time Article 156 § 5 of the Code of Criminal Procedure concerned mainly access to case files for the purpose of obtaining copies, it provided for a fine of: “In exceptional cases, in the course of the investigation, access to the file may be granted to third parties with the permission of the public prosecutor” . However, national law did not specify either the ‘exceptional cases’ or the way in which access would be granted to third parties.
Moreover, as the applicant pointed out, access to the case file was an exception to the general principle of confidentiality of the investigation. Furthermore, the contested provision did not provide for the disclosure, during a press conference, of information or data collected during the investigation. Nothing in domestic law allowed a person in the applicant’s position, who was not concerned by the investigation itself but whose conversations had nevertheless been recorded, to provide that Article 156 § 5 of the Code of Criminal Procedure could be invoked to justify the disclosure of a telephone conversation to the press. Therefore, the Court considered that the disclosure, during a press conference, of the recorded telephone conversation of the person not subject to the investigation went beyond the scope of the authorisation granted to the prosecuting authorities by the abovementioned provision.
Having regard to the above considerations, the Court concluded that the interference with the applicant’s private life was not “in accordance with the law” as required by Article 8 § 2 of the Convention and that there had therefore been a violation of that provision.
Storage of data obtained during secret surveillance
The Court reiterated its case-law according to which measures of secret surveillance and the storage, processing and use of personal data fall in principle within the scope of the concept of privacy for the purposes of Article 8 of the Convention.
The Court noted that the surveillance material relating to the applicant in the present case was collected during a security operation. The measure had been applied against other persons and, as submitted by the Government and confirmed by the domestic authorities, the applicant herself had not been the subject of that security operation. Nevertheless, the authorities had received material relating to her. In addition to the recording made during the press conference, they had also obtained transcripts of other telephone conversations she had had with her husband and her son.
The Court further noted that the material was not destroyed, but was stored and included in the records of the investigation. The applicant repeatedly requested that the material be destroyed. Initially, she was informed that the transcripts had become test material and therefore could not be destroyed. Subsequently, the authorities refused to proceed with her request as, following amendments to the Code of Criminal Procedure, there were discrepancies in the interpretation of the relevant provisions on the destruction of secret surveillance material. Although the applicant’s request was eventually successfully submitted to the Warsaw District Court, it was rejected on the ground that Article 238 §§ 4 and 5 of the Code of Criminal Procedure could not be applied in her case. However, the decision of the Warsaw District Court cannot be assessed, as the reasoning was confidential and was not communicated to the Court or to the applicant.
Furthermore, according to the information available to the Court at the date of the present judgment, it appears that the case files containing the transcripts of the applicant’s conversations recorded in 2007 are still kept at the Warsaw District Prosecutor’s Office. It is therefore doubtful whether the relevant legal provisions in force at the time of the facts of the main proceedings provided sufficient guarantees for the protection of the persons in the applicant’s position who had not themselves been subjected to a security operation but whose conversations had nevertheless been intercepted. The Court therefore concluded that the lack of sufficient clarity in the legal framework at the time of the events in the present case and the absence of procedural safeguards specifically relating to the destruction of the applicant’s communications meant that the interference with her rights under Article 8 of the Convention was not “in accordance with the law”. There has therefore been a breach of that provision.
In view of the above conclusion, it is not necessary to assess whether the interference satisfied the other requirements of Article 8 § 2 of the Convention.
Finally, the Court observed that the merits of the applicant’s complaint under Article 13 overlapped with the issues already considered above under Article 8 of the Convention. Having regard to its conclusion above, the Court considered it unnecessary to examine these issues under Article 13 of the Convention as well.
Just satisfaction (Article 41):
The ECtHR awarded the applicant the sum of EUR 5,000 for non-pecuniary damage (edited by: echrcaselaw.com).
