SZABÓ AND VISSY v. HUNGARY JUDGMENT
35
the National Security Act. Their accessibility has not been called into
question.
61. The applicants, however, contended that this law was not sufficiently
detailed and precise to meet the “foreseeability” requirement of Article 8
§ 2, as it did not provide for sufficient guarantees against abuse and
arbitrariness.
62. The reference to “foreseeability” in the context of interception of
communications cannot be the same as in many other fields. Foreseeability
in the special context of secret measures of surveillance, such as the
interception of communications, cannot mean that an individual should be
able to foresee when the authorities are likely to intercept his
communications so that he can adapt his conduct accordingly. However,
especially where a power vested in the executive is exercised in secret, the
risks of arbitrariness are evident. It is therefore essential to have clear,
detailed rules on interception of telephone conversations, especially as the
technology available for use is continually becoming more sophisticated.
The domestic law must be sufficiently clear to give citizens an adequate
indication as to the circumstances in which and the conditions on which
public authorities are empowered to resort to any such measures (see
Roman Zakharov, cited above, § 229).
63. In the present case, two situations may entail secret surveillance,
namely, the prevention, tracking and repelling of terrorist acts in Hungary
(section 7/E (1) a) (ad) of the Police Act) and the gathering of intelligence
necessary for rescuing Hungarian citizens in distress abroad (section 7/E
(1) e), see in paragraph 16 above).
The applicants criticised these rules as being insufficiently clear.
64. The Court is not wholly persuaded by this argument, recalling that
the wording of many statutes is not absolutely precise, and that the need to
avoid excessive rigidity and to keep pace with changing circumstances
means that many laws are inevitably couched in terms which, to a greater or
lesser extent, are vague (see Kokkinakis v. Greece, 25 May 1993, § 40,
Series A no. 260-A). It is satisfied that even in the field of secret
surveillance, where foreseeability is of particular concern, the danger of
terrorist acts and the needs of rescue operations are both notions sufficiently
clear so as to meet the requirements of lawfulness. For the Court, the
requirement of “foreseeability” of the law does not go so far as to compel
States to enact legal provisions listing in detail all situations that may
prompt a decision to launch secret surveillance operations. The reference to
terrorist threats or rescue operations can be seen in principle as giving
citizens the requisite indication (compare and contrast Iordachi and Others,
cited above, § 46). For the Court, nothing indicates in the text of the
relevant legislation that the notion of “terrorist acts”, as used in section 7/E
(1) a) (ad) of the Police Act, does not correspond to the crime of the same
denomination contained in the Criminal Code (see paragraph 16 above).