SZABÓ AND VISSY v. HUNGARY JUDGMENT
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IX. Judicial Review and Authorization
195. Judicial control over internal security services can take different forms. First,
there is prior authorization in a pre-trial phase, and/or post hoc review, of special
investigative measures, such as telephone tapping, bugging and video surveillance.
This is the normal practice in European States.
204. Nonetheless, there is an obvious advantage of requiring prior judicial
authorization for special investigative techniques, namely that the security agency has
to go “outside of itself” and convince an independent person of the need for a
particular measure. It subordinates security concerns to the law, and as such it serves
to institutionalize respect for the law. If it works properly, judicial authorization will
have a preventive effect, deterring unmeritorious applications and/or cutting down the
duration of a special investigative measure. The Parliamentary Assembly has earlier
expressed a clear preference for prior judicial authorization of special investigative
measures (depending on the type of measures).
X. Accountability to expert bodies
218. Expert bodies can serve as either a supplement or a replacement for
parliamentary bodies or judicial accountability...
219. An expert body allows for greater expertise and time in the oversight of
security and intelligence services and avoids the risks of political division and
grand-standing to which parliamentary committees can be prone. The body may be
full or part time, but even if it is part time, the supervision exerted is likely to be more
continuous than that exercised by a parliamentary body, the members of which have
many other political interests and responsibilities. The members’ tenure can be made
longer than the standard electoral period, something which is particularly important as
intelligence has, as already mentioned ..., a relatively long “learning curve”.
220. Like parliamentary oversight, the mandate of an expert body can be
institutional, meaning that it can be established to exercise supervision only over a
specific internal security body (this is in contrast to functional review discussed
below) ...
222. It is, however, important that the scope of the review is drawn carefully, to
avoid disputes as to whether a particular activity falls within the body’s mandate and
to avoid overlaps with other accountability mechanisms, in particular judicial controls
over police powers and Ministerial accountability to parliament.
XI. Complaints mechanisms
241. Clearly it is necessary for individuals who claim to have been adversely
affected by the exceptional powers of security and intelligence agencies, such as
surveillance or security clearance, to have some avenue for redress. Quite apart from
strengthening accountability, complaints may also help to lead to improved
performance by the agencies through highlighting administrative failings. The
requirements of human rights treaties, and especially the European Convention on
Human Rights, with its protections of fair trial, respect for private life and the
requirement of an effective remedy must obviously also be borne in mind.
242. Plainly, though, legitimate targets of a security or intelligence agency should
not be able to use a complaints system to find out about the agency’s work.
A complaints system should balance, on the one hand, independence, robustness and
fairness, and, on the other hand, sensitivity to security needs. Designing such a system
is difficult but not impossible.