SZABÓ AND VISSY v. HUNGARY JUDGMENT
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accountability and judicial oversight; whereas they are given special powers and
capabilities only to this end; whereas these powers should be used within the legal
limits imposed by fundamental rights, democracy and the rule of law and their
application should be strictly scrutinised, as otherwise they lose legitimacy and risk
undermining democracy;
BX. whereas the fact that a certain level of secrecy is conceded to intelligence
services in order to avoid endangering ongoing operations, revealing modi operandi or
putting at risk the lives of agents, such secrecy cannot override or exclude rules on
democratic and judicial scrutiny and examination of their activities, as well as on
transparency, notably in relation to the respect of fundamental rights and the rule of
law, all of which are cornerstones in a democratic society;
BY. whereas most of the existing national oversight mechanisms and bodies were
set up or revamped in the 1990s and have not necessarily been adapted to the rapid
political and technological developments over the last decade that have led to
increased international intelligence cooperation, also through the large scale exchange
of personal data, and often blurring the line between intelligence and law enforcement
activities;
BZ. whereas democratic oversight of intelligence activities is still only conducted at
national level, despite the increase in exchange of information between EU Member
States and between Member States and third countries; whereas there is an increasing
gap between the level of international cooperation on the one hand and oversight
capacities limited to the national level on the other, which results in insufficient and
ineffective democratic scrutiny;
CA. whereas national oversight bodies often do not have full access to intelligence
received from a foreign intelligence agency, which can lead to gaps in which
international information exchanges can take place without adequate review; whereas
this problem is further aggravated by the so-called ‘third party rule’ or the principle of
‘originator control’, which has been designed to enable originators to maintain control
over the further dissemination of their sensitive information, but is unfortunately often
interpreted as applying also to the recipient services’ oversight;
CB. whereas private and public transparency reform initiatives are key to ensuring
public trust in the activities of intelligence agencies; whereas legal systems should not
prevent companies from disclosing to the public information about how they handle
all types of government requests and court orders for access to user data, including the
possibility of disclosing aggregate information on the number of requests and orders
approved and rejected;
Main findings
...
6. Recalls the EU’s firm belief in the need to strike the right balance between
security measures and the protection of civil liberties and fundamental rights, while
ensuring the utmost respect for privacy and data protection;
7. Considers that data collection of such magnitude leaves considerable doubts as to
whether these actions are guided only by the fight against terrorism, since it involves
the collection of all possible data of all citizens; points, therefore, to the possible
existence of other purposes including political and economic espionage, which need to
be comprehensively dispelled;