of terrorism and rescue operations of Hungarian citizens in distress abroad, were sufficiently clear to
give citizens an adequate indication as to the circumstances in which and the conditions on which
public authorities were empowered to resort to such measures.
However, the Court was not convinced that the Hungarian legislation on “section 7/E (3)
surveillance” provided safeguards which were sufficiently precise, effective and comprehensive in as
far as the ordering, execution and potential redressing of such measures were concerned.
Notably, under “section 7/E”, it is possible for virtually any person in Hungary to be subjected to
secret surveillance as the legislation does not describe the categories of persons who, in practice,
may have their communications intercepted. The authorities simply have to identify to the
government minister responsible the name of the individual/s or the “range of persons” to be
intercepted, without demonstrating their actual or presumed relation to any terrorist threat.
Furthermore, under the legislation, when requesting permission from the Minister of Justice to
intercept an individual’s communications, the anti-terrorism task force is merely required to argue
that the secret intelligence gathering is necessary, without having to provide evidence in support of
their request. In particular, such evidence would provide a sufficient factual basis to apply such
measures and would enable an evaluation of their necessity based on an individual suspicion
regarding the targeted individual. The Court reiterated that any measure of secret surveillance which
did not correspond to the criteria of being strictly necessary for the safeguarding of democratic
institutions or for the obtaining of vital intelligence in an individual operation would be prone to
abuse by authorities with formidable technologies at their disposal.
Another element which could be prone to abuse is the duration of the surveillance. It was not clear
from the wording of the law whether the renewal of a surveillance warrant (on expiry of the initial
90 days stipulated under the National Security Act) for a further 90 days was possible only once or
repeatedly.
Moreover, these stages of authorisation and application of secret surveillance measures lacked
judicial supervision. Although the security services are required, when applying for warrants, to
outline the necessity of the secret surveillance, this procedure does not guarantee an assessment of
whether the measures are strictly necessary, notably in terms of the range of persons and the
premises concerned. For the Court, supervision by a politically responsible member of the executive,
such as the Minister of Justice, did not provide the necessary guarantees against abuse. External,
preferably judicial control of secret surveillance activities offers the best guarantees of
independence, impartiality and a proper procedure.
As concerned the procedures for redressing any grievances caused by secret surveillance measures,
the Court noted that the executive did have to give account of surveillance operations to a
parliamentary committee. However, it could not identify any provisions in Hungarian legislation
permitting a remedy granted by this procedure to those who are subjected to secret surveillance
but, by necessity, are not informed about it during their application. Nor did the twice yearly general
report on the functioning of the secret services presented to this parliamentary committee provide
adequate safeguards, as it was apparently unavailable to the public. Moreover, the complaint
procedure outlined in the National Security Act also seemed to be of little relevance, since citizens
subjected to secret surveillance measures were not informed of the measures applied. Indeed, no
notification – of any kind – of secret surveillance measures is foreseen in Hungarian law. The Court
reiterated that as soon as notification could be carried out without jeopardising the purpose of the
restriction after the termination of the surveillance measure, information should be provided to the
persons concerned.
In sum, given that the scope of the measures could include virtually anyone in Hungary, that the
ordering was taking place entirely within the realm of the executive and without an assessment of
whether interception of communications was strictly necessary, that new technologies enabled the
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