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SZABÓ AND VISSY v. HUNGARY JUDGMENT– SEPARATE OPINION
complaints, requests or appeals against concrete surveillance orders to
which they have been subjected56.
32. In the remote case that the concerned person does take knowledge of
the surveillance measure issued in his or her regard, for example, where he
or she received leaked information confirming the measure, the domestic
complaint procedure does not ensure an independent and effective
assessment of the submitted grievances. In addition to what has already
been said about the lack of decision-making powers of the Parliament’s
National Security Committee, it should be added that inquiries about
complaints related to the activities of the national security services are
initially conducted by the Minister of Home Affairs, who shall inform the
complainants about the findings of the inquiry and the measures taken
within 30 days procedure. The minister is evidently not an independent
authority. If not satisfied, the complainant may appeal to the Committee,
which may conduct inquiries if “the weight of the complaint, according to
one third of the votes of the committee members, justifies the inquiry”. The
political nature of the Committee’s decision is enhanced by the
discretionary assessment of the “weight of the complaint” and the majority
vote taken in order to open the inquiry. The Committee may conduct a factfinding inquiry, in the course of which it may have access to the relevant
documents kept in the registry of the national security services, and may
hear the staff members of the national security services. If it concludes that
the operation of the national security services is unlawful, or is contrary to
their designated purpose in any manner, the Committee may only call upon
the Minister to take the necessary measures. Hence, the remedial body is
neither obligated to conduct an investigation nor to furnish effective redress,
let alone to order the discontinuance of any ongoing abusive surveillance as
well as the destruction of unlawful personal data. Ultimately, it is up to the
Minister to decide what action, if any, he or she wants to take in reply to the
complainant’s grievances.
33. Furthermore, although Section 50 (2) (b) of the National Security
Act mentions the possibility of deletion of personal data “ordered by a court
in data protection proceedings”, and section 48 allows for the “concerned
persons to file a request for the deletion of their personal data”57, it is not
clear how the concerned surveilled person may request that his or her
personal data be deleted if he or she does not even have a fair possibility of
56
In Russia, the general remedies were only available to persons in the possession of
information about the surveillance measure, and therefore their effectiveness was
undermined by the absence of a requirement to notify the subject of the measure at any
point (Roman Zakharov, cite above, § 298, and previously, Association for European
integration and Human rights and Ekimdzhiev, cited above, § 100).
57
See the Constitutional Court’s interpretation of this provision in paragraph 138 of its
Decision no. 32/2013 (XI.22) AB, cited in paragraph 20 of the judgment.