SZABÓ AND VISSY v. HUNGARY JUDGMENT
9
(2) By way of derogation from subsection (1), such Constitutional Court
proceedings may, exceptionally, also be initiated where
a) the injury originated directly from the application or becoming effective of a
provision contravening the Fundamental Law, without a court decision, and
b) no procedure to redress the injury is available or the available remedies have
already been exhausted by the complainant. ...”
Section 27
“Against a judicial decision contravening the Fundamental Law within the meaning
of Article 24 (2) d.) of the Fundamental Law, a person or organisation affected by the
particular case may file a constitutional complaint with the Constitutional Court where
the decision on the merits of the case or another decision terminating the judicial
proceedings
a) has violated the complainant’s rights enshrined in the Fundamental Law, and
b) the complainant has already exhausted the legal remedies or no legal remedy
exists.”
20. Decision no. 32/2013. (XI.22.) AB of the Constitutional Court
establishing the constitutional requirement to be met in respect of
section 58 (3) of Nbtv. and rejecting the related constitutional complaint
contains the following passages:
“... 1. The Constitutional Court finds that ... in order to make the external control
effective, the decision of the Minister responsible for justice ... authorising secret
intelligence gathering must be supplied with reasons. ...
[42] 1.1. The regulations in force specify two types of secret intelligence gathering:
secret surveillance linked to the investigation of particular crimes and secret
surveillance not linked to the investigation of particular crimes. ...
[47] 1.2. Secret surveillance not linked to the investigation of particular crimes is
either not subject to external authorisation [sections 54-55 of Nbtv.] or is subject to
external authorisation [sections 54-55 of Nbtv.] In cases specified in the Act
authorisation means authorisation by a judge or by the Minister of Justice.
[48] According to the reasoning of Nbtv., from international practice several
examples can be mentioned for States making a distinction between intelligence
gathering linked to the investigation of particular crimes (including the closely related
fields of crime prevention and crime detection) and intelligence gathering carried out
for national security purposes.
[49] On the basis of this principle, a system of divided authorisation has been
adopted in the Act. For the purpose of detecting actual criminal offences, secret
intelligence gathering is authorised – similarly to the solution applied in the Act on the
Police – by a judge designated for the task by the President of the Budapest High
Court, whereas section 56 activities carried out in the course of general intelligence
gathering shall be authorised by the Minister of Justice. ...
[51] Section 53 (2) of Nbtv., according to which secret intelligence gathering may
only be carried out if the data required to perform the statutory tasks cannot be
obtained in any other manner, shall apply to both cases. ...