SZABÓ AND VISSY v. HUNGARY JUDGMENT– SEPARATE OPINION
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Roman Zakharov39. Secondly, it does not match with the looser criterion for
the degree of suspicion of involvement in the offences or activities
surveilled. It is logically inconsistent that the same judgment imposes a
“strict necessity” test for the determination of the surveillance measure, but
at the same time admits a very loose criterion for the degree of suspicion of
involvement in the offences or activities surveilled, as demonstrated above.
It is logically incoherent to criticise the overly broad text of the Hungarian
law when it refers to the “persons concerned identified as a range of
persons” and accept the linguistically vague and legally imprecise
“individual suspicion” test to ground the applicability of a surveillance
measure. Thirdly, the Chamber did not clarify in what consists the “strict
necessity test”, having merely linked the test to the purposes pursued.
Nowhere in the judgment is clarified that the necessity test warrants that any
surveillance operation be ordered only if the establishment of the facts by
other less intrusive methods has proven unsuccessful or, exceptionally, if
other less intrusive methods are deemed unlikely to succeed40.
The list of special surveillance techniques and their maximum duration
22. Section 56 of the National Security Act provides an exhaustive list
of special investigation techniques, which include search and surveillance of
dwellings, mail and electronic communications’ interception and computer
and network data interception. But Section 58 does not provide a maximum
time limit for the surveillance measures, as paragraph 231 of
Roman Zakharov requested41. It only foresees the maximum period of 90
days for each request, with the possibility of unlimited renewals being open
to the Minister of Justice. Furthermore, the Minister of Justice has no access
to the results of the ongoing surveillance when called on to decide on its
prolongation, which evidently facilitates the mere rubber-stamping of the
prolongation request.
The authorization and review procedure
23. The National Security Act does not provide for an independent
authority to authorize the beginning of the surveillance operation (first stage
or ex ante review stage), since Section 58 only refers to the Minister of
Justice as the sole authority to decide over the motion for a secret
39
Roman Zakharov, cited above, § 233 (“the bounds of necessity, within the meaning of
article 8 § 2”) and § 236 (“the necessity test”, “to address jointly the “in accordance with
the law” and “necessity” requirements”).
40
See my separate opinion in Draksas, cited above, page 26, point (4), and my separate
opinion in Lagutin and Others, cited above, page 36, point (6).
41
See my separate opinion in Draksas, cited above, page 26, point (5).