SZABÓ AND VISSY v. HUNGARY JUDGMENT
15
enable those who exercise the external control to review the balance struck between
the interests of national security and the fundamental rights at issue.
[134] Upon the authorisation granted in section 46 (3) of Abtv., in order to ensure
effective external control, the Constitutional Court has laid down as a constitutional
requirement ensuring compliance with Article VI (1)-(2) of the Fundamental Law that
in applying section 58 (3) of Nbtv. the decision of the Minister responsible for justice
ordering secret intelligence gathering must be supported by reasons.
[135] 3.4. Thereafter the Constitutional Court has examined whether the data
handling by the anti-terrorist organ following the termination of the secret intelligence
gathering violates the right to informational autonomy. The complainants complained
that Nbtv., contrary to Rtv., fails to provide for the deletion of such recorded
information which is irrelevant for the purposes of the surveillance and of data which
are related to persons not concerned by the case. ...
[138] Based on the above considerations the Constitutional Court has established
that though Nbtv., contrary to section 73 (3) of Rtv., does not expressly provide for
the deletion of such recorded information which is irrelevant for the purposes of the
surveillance and of data which are related to persons not concerned by the case, from
the joint interpretation of the phrase “obviously unnecessary” in section 50 (2) e) and
of section 43 of Nbtv. it clearly follows that any data unnecessary for achieving the
aim serving as a legal ground for the data acquisition, in particular the data related to
persons not concerned by the case, must be deleted ex officio. Therefore the above
regulation meets the principle of being purpose-bound and is suitable to prevent
storing data acquisition. Moreover, Nbtv. allows for the concerned persons to file a
request for the deletion of their personal data, which request can only be rejected by
the Chief Director on specific grounds. External control exists over the data
processing as well, since the reasons for the rejection of a request must also be sent to
the National Data-Protection and Information Freedom Authority [section 48 of
Nbtv.].
[139] Therefore the Constitutional Court dismisses, in this respect as well, the
complaint alleging non-compliance of the contested provision with the Fundamental
Law and seeking the annulment of the contested provision. ...”
III. EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(“THE VENICE COMMISSION”)
21. The Report on the Democratic oversight of the Security Services
adopted by the Venice Commission at its 71st Plenary Session (Venice,
1-2 June 2007) (CDL-AD(2007)016-e) contains the following passages:
“81. In the light of the importance and nature of the interests at stake, security
intelligence gathering is one of the main areas of national decision-making which a
government is most unwilling to submit to national legislative scrutiny and judicial
review and, a fortiori, to international supervision and control.
82. For a variety of reasons, there can be tension as regards national security policy,
not only between the governing party and the political opposition in a State, but also
constitutional tension between the executive and the legislative power, tension within
a government (especially a coalition government), and tension between political
masters and the staff of security intelligence agencies. A large degree of secrecy must
accompany national security policy making and operations. However secrecy also has