SZABÓ AND VISSY v. HUNGARY JUDGMENT
3
13. The applicants filed a constitutional complaint on 15 June 2012,
arguing in essence that the sweeping prerogatives under section 7/E (3)
infringed their constitutional right to privacy. They emphasised that the
legislation on secret surveillance measures for national security purposes
provided fewer safeguards for the protection of the right to privacy than the
provision on secret surveillance linked to the investigation of particular
crimes. They pointed out that (i) “section 7/E (2) surveillance” was always
linked to a particular crime and could only be ordered for the purposes of
identifying or locating suspects, whereas “section 7/E (3) surveillance” was
not linked to any particular crime; (ii) “section 7/E (2) surveillance” was
always ordered by the court, whereas “section 7/E (3) surveillance” was
authorised by the government minister in charge of justice; (iii) the decision
on ordering “section 7/E (2) surveillance” was subject to detailed reasoning,
whereas no reasoning was included in the minister’s decision on ordering
“section 7/E (3) surveillance”; and (iv) under the legislation relating to
“section 7/E (2) surveillance”, all collected but irrelevant information had to
be destroyed within eight days, unlike in the case of “section 7/E (3)
surveillance”.
14. On 18 November 2013 the Constitutional Court dismissed the
majority of the applicants’ complaints. In one aspect the Constitutional
Court agreed with the applicants, namely, it held that the decision of the
minister ordering secret intelligence gathering had to be supported by
reasons. However, the Constitutional Court held in essence that the scope of
national security-related tasks was much broader that the scope of the tasks
related to the investigation of particular crimes. For the purpose of national
security, the events of real life were examined not for their criminal law
relevance; therefore they might not necessarily be linked to a particular
crime. Furthermore, in the context of national security, the external control
of any surveillance authorised by the minister was exercised by Parliament’s
National Security Committee (which had the right to call the minister to
give account both in general terms and in concrete cases) and by the
Ombudsman, and that this scheme was sufficient to guarantee respect for
the constitutional right to privacy of those concerned. Finally, the
Constitutional Court was of the opinion that the National Security Act,
which applies to “section 7/E (3) surveillance”, contained general provisions
on ex officio deletion of any data unnecessary for achieving the aim
underlying the gathering of intelligence.
15. This decision was published in the Official Gazette on 22 November
2013.
II. RELEVANT DOMESTIC LAW
16. Act no. XXXIV of 1994 on the Police (“the Police Act”) provides as
relevant: