SZABÓ AND VISSY v. HUNGARY JUDGMENT– SEPARATE OPINION
47
CONCURRING OPINION OF JUDGE PINTO DE
ALBUQUERQUE
1. The chamber is unanimous in finding a violation of Article 8, but I am
not satisfied with the reasoning of the judgment. In two crucial issues, the
Chamber departs deliberately from the Grand Chamber judgment delivered
in the very recent Roman Zakharov v. Russia case1, which set the European
standard on mass surveillance for intelligence and national security
purposes. The two points of confrontation between the Chamber’s reasoning
and the one provided by the Grand Chamber relate to the question of the
necessity test for determining covert surveillance operations and the degree
of suspicion of involvement in the offences or activities surveilled.
2. I cannot agree with the Chamber’s posture, for two imperative
reasons: firstly, because I already took a different position on these issues in
my separate opinion joined to the judgment delivered in the Draksas v.
Lithuania case on phone tapping and other communication interception as
covert surveillance and intelligence gathering measures2, which should not
be confused with special investigation techniques in the criminal law field3;
secondly, my opinion in Draksas was confirmed, in substance, by the Grand
Chamber in the above mentioned Russian case. Hence, nothing could justify
my defiance to the Grand Chamber’s findings in Roman Zakharov. That is
why, in the following opinion, I will seek to defend the Grand Chamber’s
findings and deconstruct the present judgment’s reasoning where it departed
from them.
Mass surveillance for the purpose of national security in international
law
3. Since the disclosure of mass surveillance practices in June 2013 by
the former United States National Security Agency (US NSA) contractor
Mr. Edward Snowden, the discussion on the issue of protection of privacy
has regained a new impetus in the United Nations. In a chillingly accurate
forecast, the Report of the United Nations Special Rapporteur on the
promotion and protection of the right to freedom of opinion and expression,
Frank La Rue, of 17 April 2013, analyzed the implications of States’
1
Roman Zhakarov v. Russia (GC), no. 47143/06, 4 December 2015.
Draksas v. Lithuania, no. 36662/04, 31 July 2012.
3
See my opinion joined in the case of Lagutin and Others v. Russia, nos. 6228/09,
19123/09, 19678/07, 52340/08 and 7451/09, 24 April 2014. This case related to law
enforcement and criminal investigations, whose standards differ from those of secret
surveillance for national security purposes. It should be noted that the Chamber often
confuses these standards (see for example paragraphs 22 and 56 of the judgment citing
elements of international law and Court cases relevant for criminal investigation purposes).
2