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SZABÓ AND VISSY v. HUNGARY JUDGMENT– SEPARATE OPINION
collection of personal data. Targeted surveillance of digital communication
may constitute a necessary and effective measure for intelligence and law
enforcement entities when conducted in compliance with international and
domestic law, but “it will not be enough that the measures are targeted to
find certain needles in a haystack; the proper measure is the impact of the
measures on the haystack, relative to the harm threatened; namely, whether
the measure is necessary and proportionate”. Mandatory third-party data
retention, whereby Governments require telephone companies and Internet
service providers to store metadata about their customers’ communications
and location for subsequent law enforcement and intelligence agency
access, appears neither necessary nor proportionate. With the line between
criminal justice and protection of national security blurring significantly, the
sharing of data between law enforcement agencies, intelligence bodies and
other State organs risks violating the right to privacy, because surveillance
measures that may be necessary and proportionate for one legitimate aim
may not be so for the purposes of another. Thus, States should take steps to
ensure that effective and independent oversight regimes and practices are in
place, with attention to the right of victims to an effective remedy9.
7. More recently, on 24 March 2015, the Human Rights Council decided
to appoint, for a period of three years, a special rapporteur on the right to
privacy10.
8. Within the Council of Europe, the disclosure of the mass surveillance
practices raised a renewed interest on the Convention for the protection of
Individuals with regard to automatic processing of personal data, of
28 January 198111, and the Additional Protocol to the Convention for the
Protection of Individuals with regard to Automatic Processing of Personal
Data, regarding supervisory authorities and transborder data flows of
8 November 200112, as well as the Committee of Ministers
Recommendation No. R (87) 15, on the use of personal data in the police
sector, adopted on 17 September 1987, and Recommendation No. R (95) 4,
on the protection of personal data in the area of telecommunication services,
with particular reference to telephone services, adopted on 7 February 1995,
and the Parliamentary Assembly (PACE) Recommendation 1402(1999)1,
on the control of internal security services in Council of Europe member
states, adopted on 26 April 199913. Additionally, both the Venice
9
Paragraphs 24-27 and 50 of the report.
A/HRC/28/L.27.
11
ETS no. 108.
12
ETS no. 181.
13
The PACE expressed its clear preference for extensive a priori and ex post facto judicial
control of surveillance activities with a high potential to infringe upon human rights, on the
basis of “probable cause for belief that an individual is committing, has committed, or is
about to commit an offence”, or “probable cause for belief that particular communications
or specific proof concerning that offence will be obtained through the proposed interception
10