36
SZABÓ AND VISSY v. HUNGARY JUDGMENT
65. However, in matters affecting fundamental rights it would be
contrary to the rule of law, one of the basic principles of a democratic
society enshrined in the Convention, for a discretion granted to the
executive in the sphere of national security to be expressed in terms of
unfettered power. Consequently, the law must indicate the scope of any
such discretion conferred on the competent authorities and the manner of its
exercise with sufficient clarity, having regard to the legitimate aim of the
measure in question, to give the individual adequate protection against
arbitrary interference (see Roman Zakharov, cited above, § 247).
66. The Court notes that under “section 7/E (3) surveillance”, it is
possible for virtually any person in Hungary to be subjected to secret
surveillance. The legislation does not describe the categories of persons
who, in practice, may have their communications intercepted. In this
respect, the Court observes that there is an overlap between the condition
that the categories of persons be set out and the condition that the nature of
the underlying situations be clearly defined. The relevant circumstances
which can give rise to interception, discussed in the preceding paragraphs,
give guidance as to the categories of persons who are likely, in practice, to
have their communications intercepted. Under the relevant Hungarian law,
the proposal submitted to the responsible government minister must specify,
either by name or as a range of persons, the person or persons as the
interception subjects and/or any other relevant information capable of
identifying them as well as the premises in respect of which the permission
is sought (section 57 (2) of the National Security Act, see paragraph 17
above).
67. It is of serious concern, however, that the notion of “persons
concerned identified ... as a range of persons” might include indeed any
person and be interpreted as paving the way for the unlimited surveillance
of a large number of citizens. The Court notes the absence of any
clarification in domestic legislation as to how this notion is to be applied in
practice (see, mutatis mutandis, Roman Zakharov, cited above, § 245). For
the Court, the category is overly broad, because there is no requirement of
any kind for the authorities to demonstrate the actual or presumed relation
between the persons or range of persons “concerned” and the prevention of
any terrorist threat – let alone in a manner enabling an analysis by the
authoriser which would go to the question of strict necessity (see in
paragraphs 72 and 73 below) with regard to the aims pursued and the means
employed – although such an analysis appears to be warranted by
section 53 (2) of the National Security Act, according to which “secret
intelligence gathering [may only be applied] if the intelligence needed ...
cannot be obtained in any other way”.
68. For the Court, it is a natural consequence of the forms taken by
present-day terrorism that governments resort to cutting-edge technologies
in pre-empting such attacks, including the massive monitoring of