SZABÓ AND VISSY v. HUNGARY JUDGMENT
31
practice, frequently confronted with difficulties in dealing with the large
discretion afforded to the Government in this area, as observed by the
Venice Commission, it could not be concluded that judicial control resulted
in a less adequate control of secret surveillance for national security
purposes. The actual conclusion of the Report was that only a complex
arrangement of guarantees designed to involve judges in the control of
security services could ensure the adequate protection of individuals. As
pointed out in the Venice Convention’s Report, “[i]n order for judicial
control to be effective, the judges must be independent and possess the
necessary expertise”.
47. The applicants also emphasised that the preconditions for the use of
special secret surveillance instruments and methods of intelligence
information gathering were not precisely defined in the law and this might
also lead to arbitrary decision-making in the absence of judicial control. In
this connection the applicants referred to the Court’s case-law, arguing that
restrictions on the right to privacy by means of secret surveillance might
only be in line with the Convention if the restriction was properly defined
by the law (cf. Malone, cited above).
48. The applicants further argued that the Data Protection Ombudsman
and the Parliamentary Committee for National Security were not a
substitute for the judicial control in the authorisation phase since they
constituted oversight, rather than remedial, mechanisms and these had only
general consequences not affecting the concrete case. Upon queries
addressed to these two organs, the applicants found that none of them had
ever dealt with a case on surveillance of citizens. These potential control
mechanisms were thus not effective.
(c) The third parties
(i) Center for Democracy & Technology (CDT)
49. The CDT drew the Court’s attention to the States’ advanced
present-day capabilities for sophisticated and invasive surveillance, as well
as to their ability to build a detailed profile of any individual’s activities and
relationships using intercepted data. It mentioned the vast amount of
information that could be retrieved from a physically seized computer or
other personal electronic device. It further emphasised the development of
the possibilities to intercept communication and metadata, such as contacts
and location information, remotely, by tapping Internet or telephone
networks. In addition to mass surveillance and the sophisticated analysis of
the intercepted data, States were also able to conduct targeted surveillance
of specific individuals by installing remotely malicious software on their
devices, even enabling secret surveillance agencies to record keystrokes,
sounds, photos or videos, unbeknown to the owner.