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SZABÓ AND VISSY v. HUNGARY JUDGMENT
50. According to the CDT, in the light of such surveillance capabilities,
Article 8 required judicial oversight over all secret surveillance programmes
conducted for the purpose of national security. Regarding those exceptional
cases where judicial oversight was impossible, the CDT invited the Court to
provide clear guidance to Contracting Parties and applicants by adopting a
set of specific criteria for determining whether a non-judicial oversight
process was sufficient to prevent the abuse of Article 8 rights – although the
CDT maintained that Article 8 nevertheless required judicial control as the
last resort. Finally, the CDT concluded that anyone within the jurisdiction of
a Contracting Party who had a credible claim to have been the victim of an
Article 8 violation arising from a secret national security surveillance
programme must have access to a remedy that was effective in the sense
that the remedial body was obliged to conduct an investigation into the
complaint, and was both empowered and obligated to provide effective
redress for the violation.
(ii) Privacy International
51. Privacy International reviewed the relevant jurisprudence, both of
the Court and national courts in Europe, Canada and the United Sates,
highlighting recent decisions affirming that surveillance measures,
including mere access to data retained by communications service
providers, must be subject to judicial control or dependent upon the
issuance of a judicial warrant. Moreover, Privacy International overviewed
the international human rights standards relevant to the question of judicial
control of surveillance, referring - among other things - to United Nations
announcements and to the International Principles on the Application of
Human Rights to Communications Surveillance which all include the need
for judicial control of surveillance and for the right to an effective remedy.
2. The Court’s assessment
52. It is not in dispute between the parties that the measures which the
TEK is entitled to apply under section 56 of the National Security Act (see
paragraph 17 above), that is, to search and keep under surveillance the
applicants’ homes secretly, to check their postal mail and parcels, to
monitor their electronic communications and computer data transmissions
and to make recordings of any data acquired through these methods can be
examined from the perspective of the notions of “private life”, “home” and
“correspondence”, guaranteed under Article 8 of the Convention. The Court
sees no reason to hold otherwise (see Klass and Others, cited above, § 41).
53. In the mere existence of the legislation itself there is involved, for all
those to whom the legislation could be applied, a menace of surveillance;
this menace necessarily strikes at freedom of communication between users
of the postal and telecommunication services and thereby constitutes an
“interference by a public authority” with the exercise of the applicants’ right