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SZABÓ AND VISSY v. HUNGARY JUDGMENT
B. Merits
1. Arguments of the parties
(a) The Government
42. With regard to the necessity of judicial authorisation in the context
of Article 8, the Government referred to the Venice Commission’s Report
on the Democratic Oversight of the Security Services (CDL-AD(2007)016,
adopted at the Venice Commission’s 71st Plenary Session, Venice, 1-2 June
2007). Relying on several observations made in this report, the Government
submitted that the domestic courts were not suitable to determine the
necessity of secret intelligence gathering for national security purposes due
to the nature of the data to be assessed, to the inherent subjectivity of the
risk assessment, to the political nature of the notion of national security and
to the wide margin of appreciation afforded in this field to the Government.
43. In the Government’s view, it was an inherent feature of a judicial
decision that the judge examines the compliance of the proposed decision
with the rules of positive law or with rules that could be inferred from
positive law. In the field of authorising national security-purposed secret
intelligence gathering no positive law specifying any exact criteria
providing grounds for judicial decisions existed or could be created. The
reason for that was that, in authorising national security secret intelligence
gathering, the decision, for which the decision-maker bore political
responsibility, was to be taken by assessing the country’s security interests
and by taking into account home and foreign political aspects.
Consequently, the Minister of Justice – bearing political responsibility - was
a person more qualified than judges to make such decisions. In any case,
experience showed that judicial review in this field was not more apt than
governmental supervision.
44. Moreover, the Government reiterated that the national security
related authorisation activity of the Minister of Justice had always been
controlled by the Parliamentary Committee for National Security and by the
Data Protection Ombudsman and there were no signs indicating that the
authorisation mechanism was formal or arbitrary.
45. Finally, the Government argued – relying on the observations made
by the Court in Klass and Others (cited above), in Goranova-Karaeneva
v. Bulgaria (no. 12739/05, 8 March 2011) and in Golder v. the United
Kingdom (21 February 1975, Series A no. 18) – that the complaint related to
the lack of an effective legal remedy under Article 13 was manifestly
ill-founded.
(b) The applicants
46. Replying to the arguments based on the Venice Commission’s
Report, the applicants stressed that because ordinary courts were, in