26
SZABÓ AND VISSY v. HUNGARY JUDGMENT
provide adequate protection to right to privacy. This meant that guarantees
related to later procedural phases were unable to counterbalance the
detriment caused to the right to privacy if there was no control mechanism
built into the process of authorisation of secret surveillance that was able to
impede legally unjustifiable interventions into the private sphere. However,
the question as to whether this assertion was correct might only be assessed
considering the procedure as a whole. The Government’s suggestion that the
Court should refrain from the assessment of procedural phases beyond the
authorisation phase was pointless and practically not feasible. Moreover, the
applicants emphasised that the complaint lodged with the Constitutional
Court and the complaint submitted to the Court did not completely
correspond to each other in terms of the arguments forwarded, and that
therefore the Court should not refrain, purely relying on the principle of
subsidiarity, from examining the question as to whether the other guarantees
provided in the procedure ensured adequate protection.
2. The Court’s assessment
32. As to the applicants’ victim status, the Court has consistently held in
its case-law that its task is not normally to review the relevant law and
practice in abstracto, but to determine whether the manner in which they
were applied to, or affected, the applicant gave rise to a violation of the
Convention (see, inter alia, Klass and Others v. Germany, 6 September
1978, § 33, Series A no. 28; N.C. v. Italy [GC], no. 24952/94, § 56, ECHR
2002-X; and Krone Verlag GmbH & Co. KG v. Austria (no. 4),
no. 72331/01, § 26, 9 November 2006).
33. However, in recognition of the particular features of secret
surveillance measures and the importance of ensuring effective control and
supervision of them, the Court has accepted that, under certain
circumstances, an individual may claim to be a victim on account of the
mere existence of legislation permitting secret surveillance, even if he
cannot point to any concrete measures specifically affecting him. The
Court’s approach to assessing whether there has been an interference in
cases raising a complaint about the legislation allowing secret surveillance
measures was set out in its Klass and Others judgment (cited above, §§ 34
and 36) as follows:
“34. ... the effectiveness (l’effet utile) of the Convention implies in such
circumstances some possibility of having access to the Commission. If this were not
so, the efficiency of the Convention’s enforcement machinery would be materially
weakened. The procedural provisions of the Convention must, in view of the fact that
the Convention and its institutions were set up to protect the individual, be applied in
a manner which serves to make the system of individual applications efficacious.
The Court therefore accepts that an individual may, under certain conditions, claim
to be the victim of a violation occasioned by the mere existence of secret measures or
of legislation permitting secret measures, without having to allege that such measures
were in fact applied to him. The relevant conditions are to be determined in each case