42
SZABÓ AND VISSY v. HUNGARY JUDGMENT
81. Furthermore, where situations of extreme urgency are concerned, the
law contains a provision under which the director of the service may himself
authorise secret surveillance measures for a maximum of 72 hours (see
sections 58 and 59 of the National Security Act quoted in paragraph
17 above). For the Court, this exceptional power should be sufficient to
address any situations in which external, judicial control would run the risk
of losing precious time. Such measures must however be subject to a post
factum review, which is required, as a rule, in cases where the surveillance
was authorised ex ante by a non-judicial authority.
82. The Court notes at this juncture the liability of the executive to give
account, in general terms rather than concerning any individual cases, of
such operations to a parliamentary committee. However, it cannot identify
any provisions in Hungarian legislation permitting a remedy granted by this
procedure during the application of measures of secret surveillance to those
who are subjected to secret surveillance but, by necessity, are kept unaware
thereof. The Minister is under an obligation to present a general report, at
least twice a year, to the responsible parliamentary committee about the
functioning of national security services, which report, however, does not
seem to be available to the public and by this appears to fall short of
securing adequate safeguards in terms of public scrutiny (see
Roman Zakharov, cited above, § 283). The committee is entitled, of its own
motion, to request information from the Minister and the directors of the
services about the activities of the national security services. However, the
Court is not persuaded that this scrutiny is able to provide redress to any
individual grievances caused by secret surveillance or to control effectively,
that is, in a manner with a bearing on the operations themselves, the daily
functioning of the surveillance organs, especially since it does not appear
that the committee has access in detail to relevant documents. The scope of
their supervision is therefore limited (see, mutatis mutandis,
Roman Zakharov, cited above, § 281).
83. Moreover, the complaint procedure outlined in section 11(5) of the
National Security Act seems to be of little relevance, since citizens
subjected to secret surveillance will not take cognisance of the measures
applied. In regard to the latter point, the Court shares the view of the Venice
Commission according to which “individuals who allege wrongdoing by the
State in other fields routinely have a right of action for damages before the
courts. The effectiveness of this right depends, however, on the knowledge
of the individual of the alleged wrongful act, and proof to the satisfaction of
the courts.” (see point 243 of the Report, quoted in paragraph 21 above).
A complaint under section 11(5) of the National Security Act will be
investigated by the Minister of Home Affairs, who does not appear to be
sufficiently independent (see Association for European Integration, cited
above, § 87; and Roman Zakharov, cited above, § 278).