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SZABÓ AND VISSY v. HUNGARY JUDGMENT– SEPARATE OPINION
compel this authority to review whether the requirements of the law have
been complied with. There are no regulations specifying with an appropriate
degree of precision the manner for screening the original data obtained
through surveillance, the procedures for preserving its integrity and
confidentiality and the procedure for its destruction49. Similarly, there exists
no independent review of whether the original data are in fact destroyed
within a time-limit if the surveillance has proved fruitless50.
The urgent procedure
28. An urgent procedure may be decided by a non-independent
authority, like the director of the national secret services, only where the
normal procedure would entail a delay that would render useless the
operation. Section 59 of the National Security Act refers to “if the external
authorisation procedure entails such delay as obviously countering, in the
given circumstances, the interests of the successful functioning of the
National Security Service”. But it does not limit the use of the urgency
procedure to cases involving an immediate serious danger to national
security. Furthermore, it does not provide that the director’s decision be
within a short period of time confirmed by an independent (ie, judicial)
authority, with full reviewing power, as established in paragraph 266 of
Roman Zakharov and previously in paragraph 16 of Association for
European Integration and Human Rights and Ekimzhiev51, since the
director’s decision may only be confirmed or not by the Minister of Justice
within 72 hours.
The communication of the obtained data to third parties
29. The National Security Act does not set out the conditions to be
fulfilled and the precautions to be taken when the National Security
49
The interpretation proposed by the Constitutional Court in paragraph 138 of the Decision
no. 32/2013 (XI.22) AB of the Constitutional Court, cited in paragraph 20 of the judgment
above, deriving from sections 43 and 50 (2) (e), when read in conjunction, a legal
obligation to delete ex officio unnecessary data not only seems forced, but does not really
solve the issue, since no specifics are provided about the competence, timing and procedure
for deletion of data collected for the purposes of Section 7/E (3) of the Police Act.
50
See my separate opinion in Draksas, cited above, page 28, for similar defects in the
Lithuanian law. Paragraph 255 of Roman Zakharov, cited above, censured the automatic
storage for six months of clearly irrelevant data. But the Grand Chamber did not take in
account the interest of the surveilled person to invoke the allegedly “irrelevant” data in his
or her defence, as quite rightly argued in Dumitru Popescu v. Romania (no. 2), no
71525/01, § 78, 26 April 2007.
51
European Integration and Human Rights and Ekimzhiev v Bulgaria, no. 62540/00, § 16,
28 June 2007.