12
SZABÓ AND VISSY v. HUNGARY JUDGMENT
section 56 a)-e) of Nbtv. – consent to a State interference which seriously violates
fundamental rights, the process of interference must be regulated under the law, the
prescribed norms must be clear, and the process must be subject to external control
mechanisms. ...
[94] ... The contested provision of Rtv. authorises the anti-terrorist organ to carry
out, in performing certain of its tasks, secret intelligence gathering under the Nbtv.
The Rtv. clearly specifies the two tasks for the performance of which secret
surveillance under the Nbtv. may be carried out: namely, the performance of the tasks
specified in section 7/E (1) a) and ad) and in section 7/E (1) e).
[95] The task specified under section 7/E (1) a) (subsection (ad)) to be performed in
the framework of combating terrorism is the prevention, detection and suppression of
endeavours to commit an act of terrorism in the territory of Hungary with a view to
promoting Hungary’s national security interests. Item e) refers back to item d) which
allows for the obtaining, analysing, assessing and forwarding of information on a
foreign State or originating in a foreign State in so far as the information is necessary
for the performance of the task specified there. The tasks specified under item d) are
participation in the rescue, return to Hungary and evacuation of Hungarian nationals
who have got into trouble due to acts of war or armed conflicts outside the territory of
Hungary imminently threatening the lives and limbs of Hungarian nationals or due to
terrorist acts or hostage-taking acts, as well as cooperation for such purposes with the
member States and institutions of the European Union, the organs of the North
Atlantic Treaty Organization, the international organisations concerned by the case
and the authorities of the foreign State at issue. These tasks shall be carried out upon a
decision to that effect taken by the Minister responsible for law enforcement in
agreement with the Minister responsible for foreign affairs.
[96] Section 7/E (3) of Rtv., contested by the complainants, refers to Nbtv. and
repeats the Nbtv. rules on secret intelligence gathering (sections 53-60) and the
handling of the acquired data [sections 38-52]. Section 7/E (3) of Rtv. provides for the
application, mutatis mutandis, of the Nbtv. provisions both to the investigation of a
complaint about an activity of the anti-terrorist organ, and to the parliamentary control
of the anti-terrorist organ and to the investigation of a report alleging unlawful
operation on the part of the anti-terrorist organ [section 11 (5), section 14 (1)-(2) and
(4) a)-f) and (5), section 15 (3), section 16, section 18 and section 27 (4) of Nbtv.]
Moreover, the contested provision clearly provides that the Minister responsible for
justice shall be entitled to authorise the use, within the scope of the statutory tasks, of
the secret intelligence devices enumerated in an exhaustive list. Therefore section
7/E (3) of Rtv. meets the requirement of being prescribed by law and the requirement
of clarity of norms, as it sufficiently specifies the conditions of ordering and the
circumstances of executing the measure regulated in the Act.
[97] Thereafter the Constitutional Court has proceeded to examine whether in the
given case the authorisation of secret intelligence gathering by the Minister
responsible for justice provided sufficient guarantees for the observance of the
fundamental rights of the individuals. ...
[102] Secret intelligence gathering for the purposes of national security may only
take place under Section 7/E (1) a) ad) or e) of Rtv., that is in order to combat
endeavours to commit an act of terrorism in the territory of Hungary and in relation to
the protection of Hungarian nationals have got into trouble in a foreign country. ...
[105] The scope of national security-related tasks is much broader than the scope of
the tasks related to the investigation of particular crimes as for the purposes of
national security the events of real life are examined not for their criminal law