SZABÓ AND VISSY v. HUNGARY JUDGMENT
41
22 November 2012; for other circumstances necessitating ex ante
authorisation see Kopp v. Switzerland, 25 March 1998, Reports 1998 II).
For the Court, supervision by a politically responsible member of the
executive, such as the Minister of Justice, does not provide the necessary
guarantees.
78. The governments’ more and more widespread practice of
transferring and sharing amongst themselves intelligence retrieved by virtue
of secret surveillance – a practice, whose usefulness in combating
international terrorism is, once again, not open to question and which
concerns both exchanges between Member States of the Council of Europe
and with other jurisdictions – is yet another factor in requiring particular
attention when it comes to external supervision and remedial measures.
79. It is in this context that the external, preferably judicial, a posteriori
control of secret surveillance activities, both in individual cases and as
general supervision, gains its true importance (see also Klass and Others,
cited above, §§ 56, 70 and 71; Dumitru Popescu, cited above, § 77; and
Kennedy, cited above, §§ 184-191), by reinforcing citizens’ trust that
guarantees of the rule of law are at work even in this sensitive field and by
providing redress for any abuse sustained. The significance of this control
cannot be overestimated in view of the magnitude of the pool of information
retrievable by the authorities applying highly efficient methods and
processing masses of data, potentially about each person, should he be, one
way or another, connected to suspected subjects or objects of planned
terrorist attacks. The Court notes the lack of such a control mechanism in
Hungary.
80. The Court concedes that by the nature of contemporary terrorist
threats there can be situations of emergency in which the mandatory
application of judicial authorisation is not feasible, would be
counterproductive for lack of special knowledge or would simply amount to
wasting precious time. This is especially true in the present-day upheaval
caused by terrorist attacks experienced throughout the world and in Europe,
all too often involving important losses of life, producing numerous
casualties and significant material damage, which inevitably disseminate a
feeling of insecurity amongst citizens. The observations made on this point
by the Court in Klass and Others are equally valid in the circumstances of
the present case: “[d]emocratic societies nowadays find themselves
threatened by highly sophisticated forms of espionage and by terrorism,
with the result that the State must be able, in order effectively to counter
such threats, to undertake the secret surveillance of subversive elements
operating within its jurisdiction. The Court has therefore to accept that the
existence of some legislation granting powers of secret surveillance over the
mail, post and telecommunications is, under exceptional conditions,
necessary in a democratic society in the interests of national security and/or
for the prevention of disorder or crime” (cited above, § 48).