SZABÓ AND VISSY v. HUNGARY JUDGMENT– SEPARATE OPINION
57
inevitably allows for unfettered ministerial discretion and for a “strategic,
large-scale interception”33. In paragraph 71 of the present judgment, the
Chamber chose the lower standard of an unqualified “individual suspicion”,
which diminishes significantly the degree of protection set out in
Roman Zakharov and previously in Iordachi and Others34. Worse still, the
almost evanescent suspicion criterion chosen by the Chamber is totally at
odds with the growing concern of the United Nations, the Council of Europe
and the European Union with massive, indiscriminate and secret “bulk
surveillance” and the present state of international law, as established in the
above mentioned documents, like the Parliamentary Assembly Resolution
2045(2015) and its Recommendation 1402(1999)1, the Venice Commission
2007 and 2015 reports, the European Commission against Racism General
Policy Recommendation no. 11 and the European Parliament Resolutions of
12 March 2014 and of 29 October 2015.
19. Implicit in the Chamber’s reasoning, as well as in the Constitutional
Court’s, is the assumption that national security protection is not limited to
the investigation of past, ongoing or future offences and therefore the
“reasonable suspicion” should be dispensed with. This assumption is wrong
in the present case, in face of the letter of Section 7/E (3) of the Police Act,
which specifically refers to preventing, tracking and repealing of attempts to
carry out terrorist acts in Hungary (subsection (1) point a) sub-point ad))
and to rescuing Hungarian citizens who are in distress due to an imminent
and life-threatening danger of act of war, armed conflict, hostage-taking or
terrorist action outside the territory of Hungary (subsection (1) point (e)).
As it is plain to see, these tasks refer either to criminal prevention of acts of
terrorism in Hungary or rescue operations of situations of danger, war,
armed conflict, hostage-taking or terrorist action already ongoing outside
the territory of Hungary. In both cases of criminal prevention and rescue
operations, nothing hinders the applicability of the criterion of “reasonable
suspicion” of involvement of the targeted surveilled person in terrorist acts
or the situation of danger when collecting secret intelligence useful for the
performance of those tasks.
33
The critique of the Chamber in paragraph 69 of the judgment is entirely right, but
unfortunately the Chamber did not follow to the end this logic.
34
In other words, the Chamber standard is even below the lowest degree of bona fide
suspicion or “initial suspicion” (Anfangsverdacht) relevant in criminal law. The Chamber’s
mentioning of paragraphs 259 and 261 of Zakharov is misleading, since the Grand
Chamber qualified the “individual suspicion” by restricting it to a “reasonable suspicion”
test in paragraphs 260, 262 and 263, which the Chamber chose to ignore. Furthermore, the
Chamber’s reference to a “sufficient factual basis” adds nothing, because this evidentiary
“basis” refers to the “supportive materials” and not to the degree of suspicion required to
justify the application of any secret intelligence gathering measure. For further discussion
on the three possible degrees of suspicion in the field of criminal law, see my separate
opinion in Lagutin and Others, cited above, page 38, point 9.1).