28
SZABÓ AND VISSY v. HUNGARY JUDGMENT
must have regard to the availability of any remedies at the national level and
the risk of secret surveillance measures being applied to him. Where there is
no possibility of challenging the alleged application of secret surveillance
measures at domestic level, widespread suspicion and concern among the
general public that secret surveillance powers are being abused cannot be
said to be unjustified. In such cases, even where the actual risk of
surveillance is low, there is a greater need for scrutiny by the Court.
Most recently, the Court adopted, in Roman Zakharov v. Russia ([GC],
no. 47143/06, §§ 170-172, 4 December 2015), a harmonised approach based
on Kennedy, according to which firstly the Court will take into account the
scope of the legislation permitting secret surveillance measures by
examining whether the applicant can possibly be affected by it, either
because he or she belongs to a group of persons targeted by the contested
legislation or because the legislation directly affect all users of
communication services by instituting a system where any person can have
his or her communications intercepted; and secondly the Court will take into
account the availability or remedies at the national level and will adjust the
degree of scrutiny depending on the effectiveness of such remedies.
37. The Court observes that the present applicants complained of an
interference with their homes, communications and privacy on the basis of
the very existence of the law permitting secret surveillance and the lack of
adequate safeguards, admitting that their personal or professional situations
were not of the kind that might normally attract the application of
surveillance measures. They nevertheless thought they were at particular
risk of having their communications intercepted as a result of their
employment with civil-society organisations criticising the Government.
38. The Court observes that affiliation with a civil-society organisation
does not fall within the grounds listed in section 7/E (1) point (a) sub-point
(ad) and point (e) of the Police Act, which concern in essence terrorist
threats and rescue operations to the benefit of Hungarian citizens in
dangerous situations abroad. Nevertheless, it appears that under these
provisions any person within Hungary may have his communications
intercepted if interception is deemed necessary on one of the grounds
enumerated in the law (see paragraph 16 above). The Court considers that it
cannot be excluded that the applicants are at risk of being subjected to such
measures should the authorities perceive that to do so might be of use to
pre-empt or avert a threat foreseen by the legislation – especially since the
law contains the notion of “persons concerned identified ... as a range of
persons” which might include indeed any person.
The Court also notes that, by examining their constitutional complaint on
the merits, the Constitutional Court implicitly acknowledged the applicants’
being personally affected by the legislation in question for the purposes of
section 26(1) of the Act on the Constitutional Court (see paragraph
19 above).