SZABÓ AND VISSY v. HUNGARY JUDGMENT
39
of which will be examined below in paragraphs 75 et seq. This safeguard
would serve to limit the law-enforcement authorities’ discretion in
interpreting the broad terms of “persons concerned identified ... as a range
of persons” by following an established judicial interpretation of the terms
or an established practice to verify whether sufficient reasons for
intercepting a specific individual’s communications exist in each case (see,
mutatis mutandis, Roman Zakharov, cited above, § 249). It is only in this
way that the need for safeguards to ensure that emergency measures are
used sparingly and only in duly justified cases can be satisfied (see
Roman Zakharov, cited above, § 266).
74. Furthermore, in respect of the duration of any surveillance, the
National Security Act stipulates, first, the period after which a surveillance
permission will expire (that is, after a maximum of 90 days, as per
section 58 (4) of the National Security Act) and, second, the conditions
under which a renewal is possible. Permissions can be renewed for another
90 days; and the government minister in charge must authorise any such
renewal upon a reasoned proposal from the service involved (see paragraph
17 above). Section 60 stipulates that the permission must be cancelled if it is
no longer necessary, if the continued surveillance has no prospect of
producing results, if its time-limit has expired or if it turns out to be in
breach of the law for any reason. The Court cannot overlook, however, that
it is not clear from the wording of the law – especially in the absence of
judicial interpretation – if such a renewal of the surveillance warrant is
possible only once or repeatedly, which is another element prone to abuse.
75. A central issue common to both the stage of authorisation of
surveillance measures and the one of their application is the absence of
judicial supervision. The measures are authorised by the Minister in charge
of justice upon a proposal from the executives of the relevant security
services, that is, of the TEK which, for its part, is a dedicated tactical
department within the police force, subordinated to the Ministry of Home
Affairs, with extensive prerogatives to apply force in combating terrorism
(see section 1(2) subsection 15 of the Police Act quoted in paragraph 16
above). For the Court, this supervision, eminently political (as observed by
the Constitutional Court, see point 105 of the decision quoted in paragraph
20 above) but carried out by the Minister of Justice who appears to be
formally independent of both the TEK and of the Minister of Home Affairs
– is inherently incapable of ensuring the requisite assessment of strict
necessity with regard to the aims and the means at stake. In particular,
although the security services are required, in their applications to the
Minister for warrants, to outline the necessity as such of secret information
gathering, this procedure does not guarantee that an assessment of strict
necessity is carried out, notably in terms of the range of persons and the
premises concerned (see section 57 (2) of the National Security Act quoted
in paragraph 17 above).