38
SZABÓ AND VISSY v. HUNGARY JUDGMENT
Hungarian system of safeguards appears to fall short even of the previously
existing principles.
71. Moreover, under section 57 (2) b), in the motion requesting
permission from the Minister, the director must substantiate the necessity
for the secret intelligence gathering (see paragraph 17 above). However,
reading the relevant provisions jointly, the Court is not reassured that an
adequate analysis of the aims pursued and the means applied in performing
the national security tasks is possible or guaranteed. Indeed, the mere
requirement for the authorities to give reasons for the request, arguing for
the necessity of secret surveillance, falls short of an assessment of strict
necessity (see in paragraphs 72 and 73 below). There is no legal safeguard
requiring TEK to produce supportive materials or, in particular, a sufficient
factual basis for the application of secret intelligence gathering measures
which would enable the evaluation of necessity of the proposed
measure - and this on the basis of an individual suspicion regarding the
target person (see Roman Zakharov, cited above, §§ 259 and 261). For the
Court, only such information would allow the authorising authority to
perform an appropriate proportionality test.
72. Quite apart from what transpires from section 53(2) of the National
Security Act, the Court recalls at this point that in Klass and Others it held
that “powers of secret surveillance of citizens ... are tolerable under the
Convention only in so far as strictly necessary for safeguarding the
democratic institutions” (see Klass and Others, cited above, § 42, quoted in
paragraph 54 above). Admittedly, the expression “strictly necessary”
represents at first glance a test different from the one prescribed by the
wording of paragraph 2 of Article 8, that is, “necessary in a democratic
society”.
73. However, given the particular character of the interference in
question and the potential of cutting-edge surveillance technologies to
invade citizens’ privacy, the Court considers that the requirement
“necessary in a democratic society” must be interpreted in this context as
requiring “strict necessity” in two aspects. A measure of secret surveillance
can be found as being in compliance with the Convention only if it is
strictly necessary, as a general consideration, for the safeguarding the
democratic institutions and, moreover, if it is strictly necessary, as a
particular consideration, for the obtaining of vital intelligence in an
individual operation. In the Court’s view, any measure of secret surveillance
which does not correspond to these criteria will be prone to abuse by the
authorities with formidable technologies at their disposal. The Court notes
that both the Court of Justice of the European Union and the United Nations
Special Rapporteur require secret surveillance measures to answer to strict
necessity (see paragraphs 23 and 24 above) – an approach it considers
convenient to endorse. Moreover, particularly in this context the Court notes
the absence of prior judicial authorisation for interceptions, the importance