18
SZABÓ AND VISSY v. HUNGARY JUDGMENT
243. Individuals who allege wrongdoing by the State in other fields routinely have a
right of action for damages before the courts. The effectiveness of this right depends,
however, on the knowledge of the individual of the alleged wrongful act, and proof to
the satisfaction of the courts. As already mentioned, for a variety of reasons, the
capacity of the ordinary courts to serve as an adequate remedy in security fields is
limited. The case law of the European Court of Human Rights ... makes it very clear
that a remedy must not simply be on paper.
244. An alternative is to allow an investigation and report into a complaint against
an agency by an independent official, such as an ombudsman....
245. In these ombudsman-type systems, the emphasis is on an independent official
investigating on behalf of the complainant. These independent offices usually exist to
deal with an administrative failure by public bodies, rather than a legal error. Their
investigations may give less emphasis to the complainant’s own participation in the
process and to transparency than would be the case with legal proceedings. Typically
an investigation of this type will conclude not with a judgment and formal remedies,
but with a report, and (if the complaint is upheld) a recommendation for putting
matters right and future action...
246. A less common variation is for a State to use a parliamentary or expert
oversight body to deal with complaints and grievances of individuals.... There may be
a benefit for a parliamentary oversight body in handling complaints brought against
security and intelligence agencies since this will give an insight into potential failures
– of policy, legality and efficiency. On the other hand, if the oversight body is too
closely identified with the agencies it oversees or operates within the ring of secrecy,
the complainant may feel that the complaints process is insufficiently independent. In
cases where a single body handles complaints and oversight it is best if there are quite
distinct legal procedures for these different roles.
247. On the whole it is preferable that the two functions be given to different bodies
but that processes are in place so that the oversight body is made aware of the broader
implications of individual complaints. This approach is also supported by the ECHR.
The requirement in ECHR Article 13 of a mechanism for remedies for alleging
violations of Convention rights which is independent from the authorization process
means that a State’s control system, e.g. for data processing, may pass the test of
“accordance with the law” and “necessity in a democratic society” but that the
absence of a remedy means that there is nonetheless a violation of the Convention. As
already mentioned, the ECtHR has stated that a remedy must be effective in law and
fact. It should be noted in particular that the ECtHR has ruled that a data inspection
authority which is independent, and which has formal competence in law to award a
remedy for the holding of inaccurate, inappropriate etc. security data, but which in
fact lacks the expertise to evaluate this data, is not an effective remedy within the
meaning of Article 13.
249. In some countries, not only individuals but also members of the services are
permitted to bring service-related issues to the attention of an ombudsman or
parliamentary oversight body...
250. Another method of handling complaints is through a specialist tribunal.”