56
SZABÓ AND VISSY v. HUNGARY JUDGMENT– SEPARATE OPINION
interception order”) is set out in the Hungarian law with the necessary
degree of clarity and precision31.
The degree of suspicion of involvement in the offences or activities
surveilled
18. Act no. CXXXV of 1995 on National Security Services (the
National Security Act) does not contain any requirement that the persons
surveilled must be under a “reasonable suspicion” standard, which
contradicts the standard for authorizing secret surveillance set out in
paragraphs 260, 262 and 263 of Roman Zakharov and previously in
paragraph 51 of Iordachi and Others32. The only standard established by the
Hungarian law is that of the “persons concerned identified by name or as a
range of persons” (Section 57 (2) (a) of the National Security Act), which
31
See also my separate opinion in Draksas, cited above, page 26, point (2). Hence, I cannot
share the Chamber’s statement that “the requirement of “foreseeability” of the law does not
go so far as to compel States to enact legal provisions listing in detail all situations that may
prompt a decision to launch secret surveillance operations” (§ 64), which not only
downgrades the role of the principle of legality in a field of law where its rigorous reading
is most needed, but also leaves the door wide open to the Ministry of Justice creative
interpretation of the law and therefore to State abuse. An example of this worrying creative
interpretation is given by the Government themselves in the present case, which refer to the
two following tasks pursued by secret intelligence gathering subject to ministerial
authorization in Hungary: “one the one hand, to detect and eliminate acts of terrorism and,
on the other hand, to find and rescue Hungarian nationals got in trouble in a foreign
country. The applicants may only be regarded to be affected by the contested provisions in
so much that the Act does not exclude them from the circle of persons who in the context of
the detection and identification of a person or a group of persons potentially linked to an act
of terrorism may, among the persons or at a location or in a facility endangered by an act of
terrorism, be affected by secret intelligence gathering…” (page 8 of the Government
observations of 31 October 2014). This means that any person with a “potential link” to an
act of terrorism or a place endangered by an act of terrorism, including the potential
victims, may be submitted to a surveillance measure, as well as any person potentially
linked to an incident with an Hungarian who “got in trouble in a foreign country”! In their
security-purposed logic, the Government conclude that “the national security aspects to be
weighed can be specified under the law in very broad terms, as in the actual assessment
security policy aspects, that is non-legal aspects will have priority… In the field of
authorizing national security-purposed secret intelligence gathering no positive law
specifying an exact criteria system providing grounds for a judicial decision exists or can
be created. (…) Therefore in the field of combatting terrorism authorization for national
security-purposed secret intelligence gathering is granted on the basis of a politically
influenced criteria-system which cannot be specified under positive law…” (page 12 of the
Observations). Summing up the Government’s perspective, State secret surveillance is the
realm of politics and no law “exits or can be created” to limit this realm.
32
Iordachi and Others v. Moldova, no. 25198/02, 10 February 2009. See also my separate
opinion in Draksas, cited above, pages 26, point (3), and page 27, for similar defects of the
Lithuanian law.