58
SZABÓ AND VISSY v. HUNGARY JUDGMENT– SEPARATE OPINION
20. The real reason why the Chamber’s reasoning does not remain
faithful to the Grand Chamber’s criterion of “reasonable suspicion” is
because it assumes that the fight against terrorism requires a “pool of
information retrievable by the authorities applying highly efficient methods
and processing masses of data, potentially about each person, should he be,
one way or another, connected to suspected subjects or objects of planned
terrorist attacks”35. The vagueness of this language is impressive,
encapsulating the net-widening, all-inclusive, minimalist suspicion
threshold supposedly needed to fight efficiently terrorism. By so doing, the
Chamber ignores that “The Court does not consider that there is any ground
to apply different principles concerning the accessibility and clarity of the
rules governing the interception of individual communications, on the one
hand, and more general programmes of surveillance, on the other.”36
Furthermore, such optimistic language is indicative of an illusory conviction
that global surveillance is the deus ex machina capable of combating the
scourge of global terrorism. Even worse, such delusory language obliterates
that a vitrified society brings with it the 1984 Orwelian nightmare. In
practice, the Chamber is condoning, to use the words of the European
Parliament, “the establishment of a fully-fledged preventive state, changing
the established paradigm of criminal law in democratic societies whereby
any interference with suspects’ fundamental rights has to be authorised by a
judge or prosecutor on the basis of a reasonable suspicion and must be
regulated by law, promoting instead a mix of law enforcement and
intelligence activities with blurred and weakened legal safeguards, often not
in line with democratic checks and balances and fundamental rights,
especially the presumption of innocence”37.
The necessity test
21. Section 53 of the National Security Act provides for the necessity
test. Paragraphs 67, 71, 72, 74, 75 and 88 of the judgment use a “strict
necessity” test and refer it to two purposes: safeguarding of democratic
institutions and obtaining of vital intelligence in an individual operation38.
This creative rephrasing of the legal test raises several problems. Firstly, it
is a stricter criterion than the one of paragraphs 233 and 236 of
35
Paragraph 78 of the judgment.
Liberty and Others v. the United Kingdom, no. 58243/00, § 63, 1 July 2008, and Weber
and Saravia v. Germany (dec.), no. 54934/00, § 114, 29 June 2006, both concerned with
generalised “strategic monitoring”.
37
Paragraph 12 of the European Parliament Resolution of 12March 2014, cited above.
38
In fact, the Chamber uses a double language. Paragraph 58 refers to the “necessity” test
and the “necessity” requirements, but subsequently the language becomes more demanding,
adding the adjective “strict” to the word necessity.
36