CEDH · CASELAW;COMMUNICATEDCASES;ENG — 2 septembre 2019

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .sDAD2B73A { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s76334B44 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s71EEDCF9 { margin-top:0pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s30C8A987 { width:4.78pt; font:7pt 'Times New Roman'; display:inline-block } .sC79167A { margin-top:14pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4E0353E8 { width:4.23pt; font:7pt 'Times New Roman'; display:inline-block } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .sC6C7C49B { margin-left:7.35pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-weight:normal; font-style:italic } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9154683B { font-family:Arial; letter-spacing:0.1pt } Communicated on 2 September 2019   FIRST SECTION Application no. 16974/14 Honorata KACZMAREK against Poland lodged on 19 February 2014 STATEMENT OF FACTS The applicant, Ms Honorata Kaczmarek, is a Polish national, who was born in 1960 and lives in Gdynia. She is represented before the Court by Mr   A. Pietryka, a lawyer practising in Warszawa. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The background to the case The applicant is the wife of a Polish politician – J.K., who at the time of the events in question, had held the post of Minister of Interior. In 2007 the Central Anti-Corruption Bureau ( Centralne Biuro Antykorupcyjne ) (“CAB”) was preparing an entrapment agent provocateur operation in the Ministry of Agriculture. However, the 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 Interior were involved. The applicant’s husband was allegedly responsible for warning the Minister of Agriculture about the planned operation. As a consequence, he was removed from his post. Proceedings concerning hampering of the entrapment operation On 11 July 2007 the Warsaw Regional Prosecutor together with the Internal Security Agency ( Agencja Bezpieczeństwa Wewnętrznego ) (“ISA”) instituted pre-trial investigation into the alleged hampering of the entrapment operation. The applicant’s husband was a witness in these proceedings. During the proceedings ISA conducted covert surveillance of the applicant and her husband (operation GAMMA). The applicant’s telephone calls were monitored by the CAB. In addition, the Warsaw Regional Prosecutor in the context of operation GWIAZDA 4 obtained recordings and transcripts of the applicant’s telephone calls. On 28 October 2009 the Warsaw Regional Prosecutor discontinued the investigation on the ground that it had not been established that a criminal offence had been committed. The press conference concerning the applicant Meanwhile, D.B and J.E., Deputy General Prosecutors together with prosecutors from the Warsaw Regional Prosecutor’s office and the representatives of ISA and CAB convened a press conference. The press conference took place on 31 August 2007 and was broadcast live on public television. During the conference, information obtained as a result of using covert investigative methods was made public. In particular: J.   E. played the recording of a conversation between the applicant and K.K., who, at that time, had been the Chief Police Commandant ( Komendant Główny Policji ). In that conversation the applicant stated her house number to which K.K. replied that he would be there in a minute. According to the transcript of the press conference, J.E. stated: “Ladies and gentlemen, I think no comments are needed to this conversation. [The applicant] is the wife of J.K [full name of the applicant’s husband].” Criminal proceedings instituted by the applicant and her husband concerning disclosure of their personal details On 9 November 2007 the applicant and her husband informed the prosecution services that their personal details as well as materials from the pre-trial investigation were disclosed during the press conference held on 31   August 2007. On 28 December 2007 the Warsaw-Praga Regional Prosecutor instituted a pre-trial investigation concerning offences of exceeding authority on account of disclosing the applicant’s and her husband’s personal details and public dissemination of investigatory materials, allegedly committed by J.E. during the press conference on 31 August 2007. Following a number of procedural decisions, the case was assigned to the Łańcut District Prosecutor, who, on 24   September   2010 partly discontinued the proceedings on the ground that no criminal offence had been committed. Some of the charges were severed to a separate set of proceedings to be conducted by the Rzeszów Regional Prosecutor. On 2 February 2012 the Rzeszów Regional Prosecutor discontinued the investigation and classified the reasoning of his decision. On 12 July 2013 the Warsaw District Court upheld this decision on the ground that the offences had meanwhile become time-barred. The decision was served on the applicant on 19 August 2013. During the proceedings the applicant lodged two complaints alleging their excessive length. Both applications were dismissed by the Warsaw Regional Court on 10 May 2011 and 26 April 2013. Disclosure of investigative materials to the press (a)    Criminal proceedings On 14 December 2008 Newsweek weekly published an article containing information about the investigation relating to the obstruction of the entrapment operation (described under 2 above). On 11 February 2009 the Ostrołęka Regional Prosecutor instituted a pre ‑ trial investigation concerning an offence of public dissemination of investigative materials. On 21 June 2010 the proceedings were discontinued. Subsequently, in spring 2009 several articles were published on the website of the Dziennik (Dziennik Polska-Europa-Świat) daily indicating that the newspaper had access to transcripts of recordings of the applicant’s telephone calls obtained during the covert surveillance operation. On 15 May 2009 the Warsaw Praga District Prosecutor instituted a pre ‑ trial investigation relating to the disclosure of confidential materials of the investigation (described under 2 above) to journalists working for Dziennik daily. The proceedings were discontinued on 12 February 2010 on the ground that no perpetrator could be identified. (b)    Civil proceedings for damages On 17 June 2009 the applicant and her husband brought proceedings before the Warsaw Regional Court against Axel Springer Polska sp. z o.o. the publisher of Dziennik. They asked the court to award them damages on account of the breach of their personal rights caused by publication of transcripts of their private telephone conversations by Dziennik. On 24 March 2010 the Warsaw Regional Court gave judgment and awarded 50,000 Polish zlotys to the applicant and her husband. The judgment was upheld by the Warsaw Court of Appeal on 28   January 2011. Civil proceedings for damages against J.E On 12 May 2008 the applicant brought proceedings before the Warsaw Regional Court against J.E, the Deputy Prosecutor General at the time of the events in question. She asked the court to award her damages on account of the breach of her personal rights. On 31 October 2012 the Warsaw Regional Court dismissed her claim. In the course of the proceedings the court established that at the relevant time the applicant had been working as a specialist in marketing. Before the press conference in question she had never spoken in public and repeatedly refused to participate in interviews and television programs. The fact that she was J.K’s wife was disclosed by J.K. himself in the statement concerning his financial situation published on the website of the Chancellery of the Prime Minister. In the court’s view the applicant’s personal rights had not been breached. Her personal data had already been widely known on account of the public statements made by her husband. In addition, the information about the applicant’s house number had not been sufficient to establish her exact address. Moreover, the applicant had not been presented in a negative manner by J.E. It had not been implied that she had been involved in any illegal activity. The purpose of disclosing the details of the conversation had been to inform the public that K.K. had wished to inform the applicant and her husband about a probable search of their home. In addition, the defendant had not acted illegally as the press conference had been organised on account of public pressure. For all the above reasons, the court concluded that the applicant’s personal rights had not breached. On 6 December 2013 the Warsaw Court of Appeal upheld this judgment. The court endorsed the findings made by the Regional Court. It further held that during the press conference in question the defendant had acted not as a private individual but as a representative of the State prosecution services, consequently he did not have locus standi in the present case. In conclusion the court stated that the decision to hold the press conference had been taken by a team of prosecutors. The defendant had presided over the conference in his capacity as a Deputy Prosecutor General. It follows that his participation in the conference had been of a professional nature, as a public official and not a private individual. Therefore he could not have been accountable towards the applicant even if any breach of her personal rights had occurred. On 20 May 2015 the Supreme Court quashed this judgment and remitted the case to the Court of Appeal. On 10 November 2016 the Warsaw Court of Appeal gave judgment and dismissed the applicant’s appeal. The court disagreed with the Regional Court that the fact that the applicant’s personal data had been made public during the press conference had not breached her personal rights. It found that the disclosure of the applicant’s personal details and her telephone conversation, and the broadcasting of her voice, had infringed her right to privacy. At the same time the court agreed with the Regional Court that the identification of the applicant’s house number without indication of the name of the street had not been tantamount to disclosure of her address. It also agreed that her reputation and good name had not been breached. The court further examined the documents relating to the covert operation concerning the applicant and confirmed that these operations had been lawful and in accordance with the procedures in force. The actions undertaken by the CAB and ISA had been subject to judicial control. The recording of the applicant’s conversation with K.K. had been obtained with the permission of a relevant court. The court concluded that the breach of the applicant’s rights had not been unlawful and for that reason it dismissed the claim. On 23 November 2017 the Supreme Court refused to entertain the applicant’s cassation appeal. Destroying of surveillance materials During the GAMMA and GWIAZDA 4 covert surveillance operations (described under 2 above) the authorities gathered materials including transcripts of telephone conversations between the applicant and her husband and between the applicant and her son. The applicant submits that those conversations were of personal and intimate nature. On 1 June 2010 the applicant asked the Prosecutor General to destroy the materials collected during the covert surveillance operation. In reply, on 14   July 2010 the Warsaw Regional Prosecutor informed her that because the transcripts had become trial material they could not be destroyed. By a letter of 27 July 2010 the Ministry of Justice informed the applicant that the provisions concerning destroying of transcripts of surveillance materials were in the process of being amended. On 11 June 2011 the amendments to the Code of Criminal Procedure entered into force. On 4 December 2012 the Warsaw Prosecutor of Appeal informed the applicant that there were discrepancies in the interpretation of the relevant provisions as it was not clear whether the new provisions applied to proceedings terminated before 11 June 2011. Relying on the case-law of the Constitutional Court the prosecutor was of the view that since the investigations in the applicant’s case were discontinued before 11 June 2011 the persecutor in charge could not ask the court to order destruction of the secret surveillance materials. At the same time, the applicant was informed that pursuant to Article 238 § 5 of the Code of Criminal Procedure she could apply to the court herself.   On 10 April 2013 and 17 February 2014 the applicant applied to the Warsaw Mokotów District Court asking that the materials concerning her which had been obtained during the covert surveillance operation were destroyed. She has failed to submit information about the further course of these proceedings. Relevant domestic law and practice Storing and destroying of information obtained through secret surveillance The relevant provisions concerning storing and destroying of intercepted data obtained during secret surveillance are set out in the Code of Criminal Procedure “CCP”. Initially, Article 238 § 3 provided that after termination of the surveillance operation the court ordered destruction of the recordings if they were not relevant for the criminal proceedings. These provisions were amended as of 11 June 2010, pursuant to these amendments after termination of the surveillance operation the prosecutor applies to the court to order the destruction of all the recordings if they are not relevant to the criminal proceedings. The court decides on the application at a session held in camera. In addition, after termination of the investigation, the prosecutor applies to the court to order the destruction of the recordings in so far as they are not relevant for the criminal proceedings and they do not constitute evidence material. The court decides on the application at a session in which the parties can participate. Pursuant to Article 238 § 5 of the CCP an application for destruction of the recordings can also be lodged by a person directly affected by the surveillance, after termination of the pre-trial investigation. The Civil Code Article 23 of the Civil Code contains a non-exhaustive list of rights known as “personal rights” ( dobra osobiste ). This provision states: “The personal rights of an individual, such as health, liberty, reputation ( cześć ), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [and] inventions and improvements, shall be protected under civil law, regardless of the protection laid down in other legal provisions.” Article 24 of the Civil Code provides ways of redressing infringements of personal rights. Where an infringement has taken place, the person affected may, inter alia , request that the wrongdoer make a relevant statement in an appropriate form, or demand satisfaction from him or her. If an infringement of a personal right causes financial loss, the person concerned may seek damages. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. COMPLAINTS 1.     The applicant complains under Article 8 of the Convention that her personal data and materials collected during the covert surveillance operation were made public during a press conference. She alleges that the authorities’ response in that respect was not adequate. In particular, the criminal proceedings were eventually discontinued due to the fact that the offences had become time-barred and her civil claim against J.E. for protection of her personal rights was dismissed. 2.     She further complains under Articles 8 and 13 of the Convention that despite her objection the materials gathered during the surveillance operation were retained and that the remedies concerning destruction of those materials had not been applicable to her case. QUESTIONS TO THE PARTIES 1.     Has there been a violation of the applicant’s right to respect for her private life and correspondence, contrary to Article   8 §   1 of the Convention on account of the disclosure of her telephone conversation during the press conference (see Drakšas v. Lithuania , no. 36662/04, 31 July 2012 )?   2.     In connection with the alleged failure to destroy the material resulting from the surveillance operation has there been an interference with the applicant’s right to respect for her private life, within the meaning of Article   8 § 1 of the Convention? If there was such an interference, was that interference in accordance with the law and necessary in terms of Article   8 §   2?   3.     Did the applicant have at her disposal an effective domestic remedy for her above complaint under Article 8, as required by Article 13 of the Convention?