SZABÓ AND VISSY v. HUNGARY JUDGMENT– SEPARATE OPINION
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Commission report on the democratic oversight of the security services,
adopted in June 200714, and the European Commission against Racism
(ECRI) General Policy Recommendation no. 11 on combating racism and
racial discrimination in policing, adopted on 29 June 2007, gained new
actuality15.
9. Immediately after the publication of the Snowden files, the
Committee of Ministers adopted the “Declaration on Risks to Fundamental
Rights stemming from Digital Tracking and other Surveillance
Technologies”, of 11 June 2013, followed by the PACE Recommendation
(2024)201316 and Resolution (1954)2013 on national security and the right
to information, adopted both on 2 October 201317, and the Commissioner
for Human Rights comment on “human rights at risk when secret
surveillance spreads”, of 24 October 2013, and issue paper “The rule of law
on the internet and in the wider digital world”, of 8 December 201418.
10. More recently, in March 2015, the Venice Commission adopted the
“Update of the 2007 report on the democratic oversight of the security
services and report on the democratic oversight of signals intelligence
agencies”, which distinguishes between targeted surveillance (covert
collection of conversations, telecommunications and metadata) and
“strategic surveillance” which “does not necessarily start with a suspicion
against a particular person or persons”. The Commission insists on a system
or house searches, or that (in the case of arrest) a crime can thus be prevented” and “normal
investigative procedures have been attempted but have failed or appear unlikely to succeed
or be too dangerous.” The authorisation to undertake this kind of operative activity should
be time-limited (to a maximum of three months). Once observation or wire-tapping has
ended, the person concerned should be informed of the measure taken.
14
CDL-AD(2007)016-e. The Venice Commission stated its preference for judicial
authorization and review of surveillance operations directed to “individual cases”, but
noting at the same time that much surveillance work is not directed towards pre-trial legal
procedures, such as data-mining, and this kind of surveillance work tends to escape judicial
control (paras. 29, 202-204). Finally, it conceded that “there may not be much in the way
of concrete suspicions to go on at the time when surveillance is requested but other means
of obtaining information may be regarded as impracticable.” (para. 207).
15
CRI(2007)39. The ECRI called on the Governments to introduce a reasonable suspicion
standard, whereby powers relating to control, surveillance or investigation activities can
only be exercised on the basis of a suspicion that is founded on objective criteria.
16
The Recommendation encouraged member States of the Council of Europe to take into
account the Tshwane Principles.
17
The Resolution affirmed that the neutrality of the Internet requires that public authorities,
Internet service providers and others abstain from using invasive wiretapping technologies,
such as deep packet inspection, or from otherwise interfering with the data traffic of
Internet users.
18
CommDH/IssuePaper(2014)1. The Commissioner defended that “suspicionless mass
retention of communications data” is fundamentally contrary to the rule of law,
incompatible with core data-protection principles and ineffective. Member states should not
resort to it or impose compulsory retention of data by third parties.