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SZABÓ AND VISSY v. HUNGARY JUDGMENT– SEPARATE OPINION
surveillance of communications on the exercise of the human rights to
privacy and to freedom of opinion and expression4. Immediately after the
Snowden revelations, on 21 June 2013, the United Nations Special
Rapporteur on the Protection and Promotion of the Right to Freedom of
Opinion and Expression and the Special Rapporteur for Freedom of
Expression of the Inter-American Commission on Human Rights considered
it necessary to highlight a series of international legal principles on the issue
and published a “Joint Declaration on surveillance programs and their
impact on freedom of expression”5. On 26 September 2013, the 35th
International Conference of Data Protection and Privacy Commissioners
adopted a “Resolution on anchoring data protection and the protection of
privacy in international law”. The Commissioners resolved to call upon
governments to advocate the adoption of an additional protocol to Article 17
of the International Covenant on Civil and Political Rights (ICCPR), which
should be based on the standards that have been developed and endorsed by
the International Conference and the provisions in General Comment No. 16
to the Covenant.
4. On 18 December 2013, the United Nations General Assembly adopted
Resolution 68/167, on “the Right to Privacy in the Digital Age”6, which
4
A/HRC/23/40. The Rapporteur advocated judicial supervision of State surveillance of
communications, the right of the surveilled person to be notified once the operation has
been completed and the right to seek redress (paras. 81 and 82). Prior to that report, the
UN Special Rapporteur on the promotion and protection of human rights and fundamental
freedoms while countering terrorism put forward the “Compilation of good practices on
legal and institutional frameworks and measures that ensure respect for human rights by
intelligence agencies while countering terrorism, including on their oversight”, 17 May
2010 (A/HRC/14/46). Important documents of the civil society were also published on this
topic.
The “International Principles on the Application of Human Rights to
Communications Surveillance”, endorsed by almost 400 non-governmental and human
rights organisations, were launched in May 2014. The Open Society Justice Initiative
published the “Global Principles on National Security and the Right to Information
(Tshwane Principles)”, on 12 June 2013, which were drafted by 22 organizations and
academic centers, following the “Johannesburg Principles on National Security, Freedom
of Expression and Access to Information” adopted by a group of experts convened by
Article 19 in 1995, and the “Principles of Oversight and Accountability for Security
Services in a Constitutional Democracy” elaborated in 1997 by the Centre for National
Security Studies (CNSS) and the Polish Helsinki Foundation for Human Rights.
5
Paragraph 9 of the Joint Declaration stated that the law must clearly specify the criteria to
be used for determining the cases in which such surveillance is legitimate for national
security purposes and such measures shall be authorized only in the event of a clear risk to
protected interests and when the damage that may result would be greater than society’s
general interest in maintaining the right to privacy and the free circulation of ideas and
information. In any case, the collection of this information shall be monitored by an
independent oversight body and governed by sufficient due process guarantees and judicial
oversight, within the limitations permissible in a democratic society.
6
A/RES/68/167. The resolution, which was co-sponsored by 57 Member States, was taken
without a vote.