10
SZABÓ AND VISSY v. HUNGARY JUDGMENT
[62] Under section 14 (4) of Nbtv. Parliament’s National Security Committee shall
exercise control over the authorisation process of the Minister of Justice. ...
[69] 2. Secret intelligence gathering governed by Nbtv and not linked to the
investigation of particular crimes ... has not been examined by the Constitutional
Court yet. However, in its decision no. 2/2007. (I. 24.) AB (henceforth: Abh.1.) the
Constitutional Court specified the general aspects under which secret intelligence
gathering and secret surveillance are acceptable in a democratic, rule-of-law State.
[70] Since the content of Article B) (1) of the Fundamental Law is identical to the
content of Article 2 (1) of the former Constitution, and since from the rules of
interpretation applicable to the Fundamental Law no conclusion contrary to the above
opinion of the Constitutional Court can be inferred, the statements of principle made
on the necessity and proportionality of secret intelligence gathering can be
maintained.
[71] The Constitutional Court has also taken into consideration the Strasbourg
Court’s jurisprudence, as recalled in its former decisions. Cases related to “covert
investigations” were examined by the Court in light of the Convention provisions set
forth in Article 8 which protects the right to respect for private life. In its judgments
the Court held that in a democratic society the rights enshrined under Article 8 § 1 can
only be restricted within the limits specified in paragraph 2, that is only for the
purposes specified in that provision and only in case the necessity of the restriction is
justified.
[72] Lawfulness under the Court’s case law does not merely require that a given
restriction be specified under the law. The phrase “in accordance with the law”
requires that the regulation itself should meet the rule-of-law principles. Since secret
intelligence gathering does, per definition, exclude the possibility of an effective
remedy, it is imperative that the process authorising such information gathering
should contain sufficient guarantees for the protection of the rights of the individuals.
Therefore, the use of secret intelligence gathering must be subject to a three-stage
control: when the interference is ordered, while the interference is carried out and
when the interference is terminated. Control must be exercised by “bodies”
independent of the executive power. First of all, only constant, continuous and
mandatory control can guarantee that in a given case the requirement of
proportionality is not violated ....
[73] In its judgments the Court laid down the minimum requirements to be met by a
legal regulation on the use of secret intelligence devices. The Court emphasised that
since the interference with the fundamental rights is secret and since the use of such
devices provides “unpredictable” opportunities for the executive power, it is
indispensable that the procedures themselves provide sufficient guarantees for the
observance of the rights of the individuals. Therefore States must create precise and
detailed rules that can be abided by and accessed by the citizens. From the legal
regulation the competence of the authority applying such devices, the essence of the
measures and the manner of their practice should be clear and apparent. As to the
requirement of the clarity of rules the Court also pointed out that the laws should
specify the cases and circumstances which warrant such interference and the
conditions of the interference. As a minimum guarantee the laws should determine the
criteria based on which the scope of persons potentially affected can be determined
and should contain provisions regulating the documentation of the use of secret
intelligence devices and specifying the rules applicable to the protection and
destruction of the documentation. As to decision-making on the application of secret
intelligence devices, an excessively wide margin of appreciation may not be granted