40
SZABÓ AND VISSY v. HUNGARY JUDGMENT
76. The Court notes the Government’s argument according to which a
government minister is better positioned than a judge to authorise or
supervise measures of secret surveillance. Although this consideration
might be arguable from an operational standpoint, the Court is not
convinced of the same when it comes to an analysis of the aims and means
in terms of strict necessity. In any case, it transpires from the parties’
submissions that anti-terrorism surveillance measures in Hungary have
never been subjected to judicial control, for which reason it is not possible
to pass judgement on its advantages or drawbacks. The Court finds
therefore the Government’s argument on this point unpersuasive (see, a
contrario, Roman Zakharov, cited above, § 259).
77. As regards the authority competent to authorise the surveillance,
authorising of telephone tapping by a non-judicial authority may be
compatible with the Convention (see, for example, Klass and Others, cited
above, § 51; Weber and Saravia, cited above, § 115; and Kennedy, cited
above, § 31), provided that that authority is sufficiently independent from
the executive (see Roman Zakharov, cited above, § 258). However, the
political nature of the authorisation and supervision increases the risk of
abusive measures. The Court recalls that the rule of law implies, inter alia,
that an interference by the executive authorities with an individual’s rights
should be subject to an effective control which should normally be assured
by the judiciary, at least in the last resort, judicial control offering the best
guarantees of independence, impartiality and a proper procedure. In a field
where abuse is potentially so easy in individual cases and could have such
harmful consequences for democratic society as a whole, it is in principle
desirable to entrust supervisory control to a judge (see Klass and Others,
cited above, §§ 55 and 56). The Court recalls that in Dumitru Popescu (cited
above, §§ 70-73) it expressed the view that either the body issuing
authorisations for interception should be independent or there should be
control by a judge or an independent body over the issuing body’s activity.
Accordingly, in this field, control by an independent body, normally a judge
with special expertise, should be the rule and substitute solutions the
exception, warranting close scrutiny (see Klass and Others, cited above,
§§ 42 and 55). The ex ante authorisation of such a measure is not an
absolute requirement per se, because where there is extensive post factum
judicial oversight, this may counterbalance the shortcomings of the
authorisation (see Kennedy, cited above, § 167). Indeed, in certain respects
and for certain circumstances, the Court has found already that ex ante
(quasi-)judicial authorisation is necessary, for example in regard to secret
surveillance measures targeting the media. In that connection the Court held
that a post factum review cannot restore the confidentiality of journalistic
sources once it is destroyed (see Telegraaf Media Nederland Landelijke
Media B.V. and Others v. the Netherlands, no. 39315/06, § 101,