SZABÓ AND VISSY v. HUNGARY JUDGMENT– SEPARATE OPINION
65
obtaining information about the collection of that personal data by the
National Security Services.
34. In sum, by depriving the subject of the secret surveillance measure
of any notification of its existence and therefore of the effective possibility
of challenging it retrospectively, Hungarian law eschews the most important
safeguard against improper use of secret surveillance measures58. Were
Samuel Warren and Louis Brandeis confronted with law, they would
undoubtedly repeat the words they used to call for their right to privacy:
“The intensity and complexity of life, attendant upon advancing civilization,
have rendered necessary some retreat from the world, and man, under the
refining influence of culture, has become more sensitive to publicity so that
solitude and privacy have become more essential to the individual”59.
Conclusion
35. As a foundational matter, I recall that “a system of secret
surveillance designed to protect national security entails a risk of
undermining or even destroying democracy on the ground of defending
it”60. Having this in mind, the Chamber quite rightly did not tone down the
critique of the Hungarian legal framework on covert and massive
surveillance in order to make it more palatable to the respondent
Government. But if the tone is right, the substance of the judgment risks not
to allay entirely the serious dangers for the citizens’ privacy, the rule of law
and democracy resulting from such legal framework61. Worse still, the
choices made by the Chamber introduce a strong dissonant note in the
Court’s case-law. Paragraph 71 of the judgment departs clearly from
paragraphs 260, 262 and 263 of Roman Zakharov and paragraph 51 of
Iordachi and Others v. Moldova, since the Chamber uses a vague, anodyne,
unqualified “individual suspicion” to apply the secret intelligence gathering
58
I can therefore not agree with the Constitutional Court’s statement that “Since secret
intelligence gathering does, per definition, exclude the possibility of an effective
remedy…” (see paragraph 72 of the Decision no. 32/2013 (XI.22) AB of the Constitutional
Court, cited in paragraph 20 of the judgment above).
59
Samuel Warren and Louis Brandeis, “The right to privacy”, in Harvard Law Review,
volume IV, no. 5, 15 December 1890, p. 196.
60
Rotaru v. Romania (GC), no. 28341/95,§ 59, 5 May 2000, paraphrasing Klass and
Others, cited above, § 49: “The Court, being aware of the danger such a law poses of
undermining or even destroying democracy on the ground of defending it, affirms that the
Contracting States may not, in the name of the struggle against espionage and terrorism,
adopt whatever measures they deem appropriate.”
61
This is particularly worrying if one considers that over the past few years, several privacy
and digital rights organizations have pointed to evidence that the Hungarian authorities
have purchased potentially invasive surveillance technologies (Freedom House, Freedom
on the internet, report on Hungary, 2015, page 15).