SZABÓ AND VISSY v. HUNGARY JUDGMENT
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relevance, and those events do not necessarily entail legal consequences. Identifying
and combating endeavours aimed at committing acts having relevance from the
aspects of securing the sovereignty of the State and of protecting the lawful order of
the State may fall outside the sphere of particular criminal offences. Therefore
national security-related tasks are not comparable to secret intelligence gathering
linked to investigating a crime, which is carried out under section 69 of Rtv. and is
subject to authorisation by a court. The prevention and elimination of risks to national
security require political decisions, therefore decisions of this type fall in the
competence of the executive power. This consideration justifies that general character
secret intelligence gathering should be authorised by the Minister responsible for
justice.
[106] However, in granting the authorisation the Minister responsible for justice
must weigh the interests of national security against the injury done to the
fundamental rights. Therefore in addition to assessing the national security interests of
the country from a political (home and foreign affairs) aspect, the person granting the
authorisation should also strike a fair balance between the interests of national
security and fundamental rights. In doing so, it must start from the principle that secret
intelligence methods for national security purposes may only be used even by the antiterrorist organ as a last resort means of detection. Section 53 (2) of Nbtv. clearly
provides for the ultima ratio nature of secret intelligence methods: the special devices
and methods of secret intelligence gathering can only be used where the data needed
for the completion of a prescribed task cannot be obtained in any other way, namely
by the traditional means of detection. This provision of Nbtv. is intended to serve as a
legal guarantee similar to that which the specification in the law of the acts amounting
to criminal offences constitutes in the context of secret intelligence gathering linked to
the investigation of a particular crime and carried out upon the suspicion of an
offence.
[107] ... The request for authorisation must be supported with reasons. The ...
grantor of the authorisation shall base his decision on the content of the request: the
request shall be granted or, in case of ill-foundedness, rejected. Hence, in case the
requesting authority cannot sufficiently justify that the data required for performing its
tasks cannot be acquired in any other manner no authorisation for the use of
intelligence devices and methods shall be given. ...
[114] As to the ordering and carrying out of the secret intelligence gathering
external control is a fundamental guarantee. Control over the activities performed by
the anti-terrorist organ under the rules of Nbtv. is exercised by the National Security
Committee (henceforth: Committee) of the Parliament ... Upon the Committee’s
request the Minister of Justice shall provide information on the nature of the
authorised information gathering and on the type of the case (section 14(4) b) Nbtv.).
[115] The Committee may acquire information about irregularities related to the
operation of the Services (anti-terrorist organ) from, among others, its own inquiries,
from citizen complaints or from information from the staff members of the Services.
...
[119] Nbtv. sets one single bar to the Committee’s control: the Committee may not
learn of information which might endanger the prime importance national security
interests in protecting the methods and sources (participating persons) relied on in the
case at issue (section 16(1) of Nbtv.) .
[120] The operation of the National Security Services and of the anti-terrorist organ
and of the Minister of justice’s authorising activity can be controlled, in addition to
the Parliament, by the Parliamentary Commissioner for Fundamental Rights as well.