Published on 12 April 2021

FIRST SECTION

Application no. 78099/14 Krzysztof PASELLA against Poland lodged on 10 December 2014 communicated on 22 March 2021

STATEMENT OF FACTS

1 . The applicant, Mr Krzysztof Pasella , is a Polish national who was born in 1970 and lives in Oświęcim .

The circumstances of the case

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . The applicant was temporarily employed as a civil servant, working with the Commander-in-Chief of the Polish Task Force in Ghazni , Afghanistan ( Polski Kontyngent Wojskowy ) .

4 . On 15 January 2014, the Head of the National Counter-Intelligence Cell ( Narodowa Komorka Kontrwywiadu ) in Afghanistan filed a crime notice with the Mazowiecki Military Police Unit ( Oddział Żandarmerii Wojskowej ). The authority submitted that the applicant was likely to be transporting electronic devices containing classified information.

5 . Later, on 15 January 2014, when the applicant boarded a plane to return to Poland, the soldiers of the Bagram Military Police searched the applicant and seized his electronic devices, inter alia , his mobile telephone, personal computer and his external hard drive.

6 . The applicant asked to be served with the relevant search and seizure warrant within 7 days.

7 . On 22 January 2014 the Military Prosecutor ( Prokurator Prokuratury Wojskowej ) in Ghazni issued a decision by which he retrospectively approved the search. That decision was served on the applicant on 14 April 2014.

8 . On 24 January 2014 the Ghazni Garrison Department of the Polish Task Force ( Wydzial Żandarmerii Wojskowej Polskich Sił Zadaniowych ) classified the electronic devices that had been confiscated as evidence in the criminal investigation into allegations of leaking non-public information which had been acquired at work. The applicant was not named as a suspect in these proceedings.

9 . On 6 February 2014 the applicant lodged an interlocutory appeal concerning the search of 15 January 2014.

10 . On 17 April 2014 the applicant lodged an interlocutory appeal against the decision of 22 January 2014.

11 . On 12 June 2014 the Warsaw Military Garrison Court ( Wojskowy Sąd Garnizonowy ) dismissed the above-mentioned appeals. The court held that the National Counter-Intelligence Cell and a witness – the applicant ’ s superior - had informed the authorities about the possible disclosure of classified information by the applicant and therefore the decisions of 15 and 22 January 2014 were lawful. As regards the fact that the decision of 22 January 2014 had been served on the applicant only on 14 April 2014, the court held that the statutory service date of seven days was clearly only of an instructive nature.

12 . On an unspecified date the applicant appealed against the decision of 24 January 2014.

13 . On 16 July 2014 the Warsaw Military Garrison Court dismissed the appeal. The court held that the challenged decision had had a legal basis as the decision of 22 January 2014, confirming the lawfulness of the search, had been issued. The court also relied on the information submitted in the case by the National Counter-Intelligence Cell.

14 . On 30 June 2015 the Mazowiecki Military Police Unit decided that the objects that had been confiscated as evidence in the applicant ’ s case were of no use for the investigation and that all of them, except for the external hard drive, should be returned to the applicant.

15 . On 10 July 2015 the Warsaw Military Prosecutor, who had supervised the applicant ’ s investigation by the Mazowiecki Military Police Unit, discontinued the investigation on the grounds that no offence had been committed. The prosecutor essentially found that the applicant had not been carrying any classified information on his electronic devices. The prosecutor decided that the applicant ’ s external hard drive should stay with the authorities. The drive in question contained files with copies of a foreign document which bore a classified information clause. The measure was taken as a form of precaution, because the investigation had not disproved the applicant ’ s explanation that the document had only historic value and had been declassified and as such, informally, given to him by an American colleague who had since passed away. The prosecutor ordered that the remaining contents of the external drive in question be copied and that it be returned to the applicant.

16 . Following the applicant ’ s complaints about delays, on 23 September 2016 the copy of the non-classified information from the applicant ’ s hard drive was made available to and collected by the applicant.

COMPLAINTS

17 . The applicant complains under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention that the confiscation of his computer and his hard drive amounted to an unlawful and unjustified interference with his right to respect for his private life and the control of use of his property. In particular, the applicant argues that the belated service of the decision, which only retroactively authorised the seizure, made it impossible for him to contest the measure in a timely manner. During that time, the authorities had read and made copies of the contents of the applicant ’ s electronic devices and the applicant could not make use of them. Moreover, the decisions to seize the items in question and to classify them as evidence were unjustified. Overall, the measure was unlawful and disproportionate.

18 . The applicant also complains under Article 6 of the Convention of the arbitrariness, unfairness and unreasonable length of the proceedings in the course of which the decisions of 22 and 24 January 2014 were issued.

19 . The applicant also complains under Article 13 of the Convention that he was deprived of an effective remedy against the excessive length of the proceedings.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to the peaceful enjoyment of his possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention? In particular, was the interference in accordance with the law and necessary to control the use of property in accordance with the general interest?

2. Has there been a violation of the applicant ’ s right to respect for his private life, contrary to Article 8 of the Convention? In particular, was the interference in accordance with the law and justified under paragraph 2 of this provision?