SZABÓ AND VISSY v. HUNGARY JUDGMENT
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for the authorities (e.g. Valenzuela Contreras v. Spain (58/1997/842/1048)). As to the
application of secret intelligence devices, the requirement that access to the
information by outside persons should be restricted serves as an additional guarantee
(e.g. Kopp v. Switzerland (13/1997/797/1000) 25 March 1998).
[74] Use for a particular purpose means that secret intelligence devices may only be
used for reasons specified in Article 8 § 2 .... Compliance with the necessity test is
closely linked to this issue. It is a basic requirement that any interference should be
justified by pressing public interest and should be proportionate both to the danger
needed to be countered and to the injury caused.
[75] An examination of these issues should not be confined to scrutinising whether
the statutory conditions laid down for the restriction meet the necessityproportionality test but should also extend to examining the necessity of the use of
secret intelligence devices in the particular case. As to the requirement of necessity it
is of paramount importance that any use should only take place in case of
“aggravated” (serious) threat and only in case the traditional investigative means and
devices prove to be inefficient in the particular circumstances of a case; moreover, any
use of the secret intelligence devices should take place according to a strict procedure
that can be known in advance ...
[76] From the Convention and the relevant case law of the Court the Constitutional
Court has concluded that national security, public security and the prosecution of
crime are interests for which even covert investigations – which amount to serious
law-restricting devices – can be used where the above specified criteria are met.
[77] 3. The Constitutional Court has examined the contested provision within the
confines of the complainants’ complaint. The complainants challenged the antiterrorist organ’s secret intelligence gathering activities carried out for purposes other
than prosecuting crime. They alleged non-compliance with the Fundamental Law of
the contested provision by alleging that the provision at issue allowed for the antiterrorist organ’s secret intelligence gathering under Nbtv. – while Nbtv. contained no
guarantees for the observance of the fundamental rights at issue.
[78] The complainants did not make a distinction between the various stages of the
secret intelligence gathering (ordering, carrying out and terminating the interference)
but picked out some elements of the application [of this measure] and complained
about those elements. As to the ordering of the interference they complained that the
permission of the Minister responsible for justice did not constitute a sufficient
guarantee, in particular in view of the fact that the grounds on which the request for
authorisation can be made are not exhaustively enumerated. The complainants are of
the view that following the termination of the interference the fate of the information
irrelevant for the purposes of the surveillance and the fate of the data related to
persons not concerned in the case is not settled. ...
[80] Therefore, within the confines of the complaint the Constitutional Court must
examine whether the authorisation by the Minister responsible for justice of secret
intelligence gathering for the anti-terrorist organ and the handling of data following
the termination of the interference does or does not violate the fundamental rights
invoked, namely the right to privacy and the right to informational autonomy....
[92] 3.2. The Constitutional Court has first examined the constitutionality of the
authorisation by the Minister responsible for justice. The first phase of secret
surveillance is the ordering of the interference. Since in applying section 7/E (3) of the
Act on the Police (henceforth: Rtv.) the Minister responsible for justice gives – by
authorising the use of the secret intelligence gathering devices and methods listed in