SZABÓ AND VISSY v. HUNGARY JUDGMENT– SEPARATE OPINION
61
for intelligence information gathering, or documents making it possible to
identify the persons using them, documents relating to encryption activities
and encoding, security documents relating to the installations and staff of
the national security services, documents related to security documents and
technological control, documents access to which would make possible the
identification of the source of the information, or documents access to
which would infringe the obligations undertaken by the national security
services towards foreign partner services46.
25. The shortcomings of the external political control are correctly
criticized by the Chamber, but the reasoning of the judgment omits a
holistic assessment of the subsequent surveillance review procedure, which
is essential to assess if the overall fairness of the system put in place by the
Hungarian legislator compensates the shortcomings of the first stage of the
secret intelligence gathering procedure47.
26. The National Security Act does not establish an independent (ie,
judicial) authority to monitor and review pending the surveillance operation
(second stage or implementation stage) such matters as whether the secret
services are in fact complying with the decision authorising the use of secret
operational measures, whether they faithfully reproduce in the records the
original data obtained during the operation and whether the surveillance
remains necessary for the performance of the tasks specified in the law, as
paragraph 251 of Roman Zakharov underscores48.
27. In addition, when the surveillance operation is over (third stage or ex
post review stage), there is no provision for acquainting an independent (ie,
judicial) authority with the results of the surveillance and the law does not
46
Article 23 (2) of the Act CXI of 2011 on the Commissioner for Fundamental Rights. This
contradicts the principle that oversight institutions should have the power to initiate their
own investigations into areas of the intelligence service’s work that fall under their
mandates, and are granted access to all information necessary to do so (see UN 2010
Compilation of good practices, cited above, para. 14, and the UNHCHR 2014 report, cited
above, para. 41). In fact, the practice has been that the Ombudsman’s office never dealt
with a case on the surveillance of citizen (paragraph 18 of the judgment and annex 2 to the
applicants’ observations).
47
A similar holistic assessment of the Russian law was made by the Grand Chamber in
Roman Zakharov, cited above, § 178. The Hungarian Constitutional Court examined both
the autorisation stage and the handling of the collected data following the termination of the
interference and found the protection of the right to privacy satisfactory in the light of the
guarantees subsequent to the autorisation stage, such as the parliamentary external
oversight. The Government themselves referred to these guarantees in paragraphs 16 to 18
of their observations. Although the Chamber considered, in paragraph 58 of the judgment,
that “the Court is required to examine this legislation itself and the safeguards built into the
system allowing for secret surveillance”, it did not deliver what it promised.
48
In paragraph 274 of Roman Zakharov, cited above, the Court noted that the domestic
courts had no competence to supervise the implementation stage of the secret surveillance
measure, finding in paragraph 285 that the supervision of this second stage by the public
prosecutor was insufficient.