SZABÓ AND VISSY v. HUNGARY JUDGMENT
43
84. The Court further notes the evidence furnished by the applicants
according to which the Commissioner for Fundamental Rights has never so
far enquired into the question of secret surveillance (see paragraph 18
above).
85. In any event, the Court recalls that in Klass and Others a
combination of oversight mechanisms, short of formal judicial control, was
found acceptable in particular because of “an initial control effected by an
official qualified for judicial office” (cited above, § 56). However, the
Hungarian scheme of authorisation does not involve any such official. The
Hungarian Commissioner for Fundamental Rights has not been
demonstrated to be a person who necessarily holds or has held a judicial
office (see, a contrario, Kennedy, cited above, § 57).
86. Moreover, the Court has held that the question of subsequent
notification of surveillance measures is inextricably linked to the
effectiveness of remedies and hence to the existence of effective safeguards
against the abuse of monitoring powers, since there is in principle little
scope for any recourse by the individual concerned unless the latter is
advised of the measures taken without his or her knowledge and thus able to
challenge their justification retrospectively. As soon as notification can be
carried out without jeopardising the purpose of the restriction after the
termination of the surveillance measure, information should be provided to
the persons concerned (see Weber and Saravia, cited above, §135;
Roman Zakharov, cited above, § 287). In Hungarian law, however, no
notification, of any kind, of the measures is foreseen. This fact, coupled
with the absence of any formal remedies in case of abuse, indicates that the
legislation falls short of securing adequate safeguards.
87. It should be added that although the Constitutional Court held that
various provisions in the domestic law read in conjunction secured
sufficient safeguards for data storage, processing and deletion, special
reference was made to the importance of individual complaints made in this
context (see point 138 of the decision, quoted in paragraph 20 above). For
the Court, the latter procedure is hardly conceivable, since once more it
transpires from the legislation that the persons concerned will not be
notified of the application of secret surveillance to them.
88. Lastly, the Court notes that is for the Government to illustrate the
practical effectiveness of the supervision arrangements with appropriate
examples (see Roman Zakharov, cited above, § 284). However, the
Government were not able to do so in the instant case.
89. In total sum, the Court is not convinced that the Hungarian
legislation on “section 7/E (3) surveillance” provides safeguards sufficiently
precise, effective and comprehensive on the ordering, execution and
potential redressing of such measures.
Given that the scope of the measures could include virtually anyone, that
the ordering is taking place entirely within the realm of the executive and