24
SZABÓ AND VISSY v. HUNGARY JUDGMENT
8. Questions the compatibility of some Member States’ massive economic
espionage activities with the EU internal market and competition law as enshrined in
Titles I and VII of the Treaty on the Functioning of the European Union; reaffirms the
principle of sincere cooperation as enshrined in Article 4(3) of the Treaty on European
Union, as well as the principle that Member States shall ‘refrain from any measures
which could jeopardise the attainment of the Union’s objectives’;
10. Condemns the vast and systemic blanket collection of the personal data of
innocent people, often including intimate personal information; emphasises that the
systems of indiscriminate mass surveillance by intelligence services constitute a
serious interference with the fundamental rights of citizens; stresses that privacy is not
a luxury right, but is the foundation stone of a free and democratic society; points out,
furthermore, that mass surveillance has potentially severe effects on freedom of the
press, thought and speech and on freedom of assembly and of association, as well as
entailing a significant potential for abusive use of the information gathered against
political adversaries; emphasises that these mass surveillance activities also entail
illegal actions by intelligence services and raise questions regarding the
extraterritoriality of national laws;
12. Sees the surveillance programmes as yet another step towards the establishment
of a fully-fledged preventive state, changing the established paradigm of criminal law
in democratic societies whereby any interference with suspects’ fundamental rights
has to be authorised by a judge or prosecutor on the basis of a reasonable suspicion
and must be regulated by law, promoting instead a mix of law enforcement and
intelligence activities with blurred and weakened legal safeguards, often not in line
with democratic checks and balances and fundamental rights, especially the
presumption of innocence; recalls in this regard the decision of the German Federal
Constitutional Court on the prohibition of the use of preventive dragnets (‘präventive
Rasterfahndung’) unless there is proof of a concrete danger to other high-ranking
legally protected rights, whereby a general threat situation or international tensions do
not suffice to justify such measures;
...
14. Points out that the abovementioned concerns are exacerbated by rapid
technological and societal developments, since internet and mobile devices are
everywhere in modern daily life (‘ubiquitous computing’) and the business model of
most internet companies is based on the processing of personal data; considers that the
scale of this problem is unprecedented; notes that this may create a situation where
infrastructure for the mass collection and processing of data could be misused in cases
of change of political regime; ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
26. The applicants complained under Article 8 of the Convention that
they could potentially be subjected to measures within the framework of
“section 7/E (3) surveillance”. They submitted that the legal framework was
prone to abuse, notably for want of judicial control.