60
SZABÓ AND VISSY v. HUNGARY JUDGMENT– SEPARATE OPINION
surveillance measure, without further appeal against his or her decision
being admissible42. The legal framework does not include the examination
of the case file and the assessment of the factual and legal grounds for
auhorisation of the secret surveillance measure by an independent authority,
preferably a judge, as paragraph 233 of Roman Zakharov stated, following
Klass and Others43. In view of the enlarged consensus in international law
mentioned above and the gravity of the present-day dangers to citizens’
privacy, the rule of law and democracy, the time has come not to dispense
with the fundamental guarantee of judicial autorisation and review in the
field of covert surveillance gathering44. Obviously, the judicial guarantee is
not incongruous with an additional external guarantee of political, vg
parliamentarian, nature.
24. In the case at hand, the Parliament’s National Security Committee
and the Commissioner for Fundamental Rights external control does not
guarantee an independent evaluation of the ministerial exercise of decisional
powers, in view of the absence of review powers of the external supervisory
entities themselves in concrete cases45. In addition, in the course of his or
her inquiry affecting the national security services, the Commissioner for
Fundamental Rights is deprived of almost all relevant documentation, since
he or she may not inspect registers for the identification of individuals
cooperating with the national security services, documents containing the
technical data of devices and methods used by the national security services
42
On the three stages of the oversight procedure, when the surveillance is first ordered,
while it is being carried out and after it has been terminated, see paragraph 233 of Roman
Zakharov, cited above, as well as paragraph 72 of the Decision no. 32/2013 (XI.22) AB of
the Constitutional Court, cited in paragraph 20 of the judgment above.
43
Klass and Others v. Germany, 6 September 1978, §§ 55 and 56, Series A, no. 28.
44
See also my separate opinion in Draksas, cited above, page 26, point (6). I cannot thus
follow the Hungarian Constitutional Court, when it argues that “Identifying and combating
endeveaours aimed at committing acts having relevance from the aspects of securing the
sovereignty of the State and of protecting the lawful order of the State may fall outside the
sphere of particular criminal offences. (…) The prevention and elimination of risks to
national security require political decisions, therefore decisions of this type fall in the
competence of the executive power” (paragraph 105 of the Decision no. 32/2013 (XI.22)
AB of the Constitutional Court, cited in paragraph 20 of the judgment above). Neither can I
accept the argument of the Government that judges are not welcomed, “because either due
to lack of expertise or the absence of external – political – accountability on the part of the
courts or – in case of specilisation – due to the courts’ becoming part of the system and
their resulting readiness to give preference to national security interests, courts tend to
accept the risk-assessments of the national security services, hence judicial control
constitutes only formal supervision.” (Government observations of 31 October 2014, page
11).
45
Although the Committee may request information on particular cases under Section 14
(4) a) of the National Security Act, and the Minister or the chief director shall, within the
established deadline, reply, the Committee lacks any decision-making power with regard to
the particular cases.