14
SZABÓ AND VISSY v. HUNGARY JUDGMENT
[121] Under section 18 (1) f) of Act no. CXI of 2011 on the Parliamentary
Commissioner for Fundamental Rights (henceforth: Ajbt.) law enforcement organs,
including the anti-terrorist organ, are authorities that can be examined by the
Ombudsman. ... Hence no obstacle exists to an examination by the Ombudsman, the
only bar being that – similarly to the control by Parliament – the report made on the
examination of the secret intelligence activities of the authorities authorised for using
secret intelligence devices and methods may not contain data from which the secret
intelligence gathering activities carried out by the organ in the case at issue can be
inferred (section 28(3)). The Commissioner for Fundamental Rights may present, in
case the conditions specified under section 38 of Ajbt. are met, the cases examined by
him to Parliament in an annual report and may, with the exception of motions for
amendments, request Parliament to examine a case. ...
[122] On the basis of the above information the Constitutional Court has concluded
that Nbtv. allows for the control of the authorisation granting of the Minister of
Justice by bodies independent of the executive power. ...
[124] 3.3 In examining the reference in section 7/E (3) of Rtv. the Constitutional
Court has observed that section 58 (3) of Nbtv. does not expressly provide for a
reasoned decision ...
[127] A necessary element of any judicial decision to be taken on secret intelligence
gathering under the Rtv. is an examination of the compliance of the request for
authorisation with the statutory requirements. ...
[128] [...] The reference in section 7/E (3) of Rtv. also requires authorisation from
the Minister of Justice for national security-related secret intelligence gathering
carried out by the anti-terrorist organ, which is part of the Police Service, in order to
combat endeavours to commit an act of terrorism in the territory of Hungary or in
relation to the protection of Hungarian nationals who have got into trouble in a foreign
country. ...
[130] Since Nbtv. does not expressly require the Minister of Justice to issue a
reasoned decision, the authoriser is under no obligation to provide reasoning. In the
absence of reasoning, however, no posterior understanding, analysis or review of the
aspects and reasons giving rise to the decision in a particular case is possible for those
who exercise external control.
[131] Though section 58 (3) of Nbtv. prescribes that the authorisation grantor shall
base his decision on the content of the request, this content is, per definition, onesided since in arguing for the necessity of the secret information gathering the request
will solely invoke national security interests. The authorisation grantor must strike a
fair balance between the interests of national security and fundamental rights
enshrined under Article VI (1)-(2) of the Fundamental Law for persons affected by
secret intelligence gathering and must ensure, in addition to determining the necessity
of the restriction, that the restriction is proportionate. ...
[132] Given that the special nature of secret surveillance excludes the possibility of
a remedy, a restriction of the right to privacy and of the right to informational
autonomy that is proportionate to the protection of national security will require
effective external control already in granting the authorisation for the use of the secret
intelligence devices.
[133] The National Security Committee and the Commissioner for Fundamental
Rights may only constitute effective external control over the authorisation activity of
the Minister of Justice if the Minister’s decision authorising the secret surveillance
contains sufficiently detailed reasons. The reasons should be of a depth and detail that