SZABÓ AND VISSY v. HUNGARY JUDGMENT– SEPARATE OPINION
63
Services communicate the obtained data to third parties, as paragraph 231 of
Roman Zakharov specifically requests52. The vague reference of Section 45
to the transferal of personal data to “foreign data processing authorities
within the framework of laws on protection of personal data” is manifestly
insufficient.
The duty to notify the person under surveillance
30. The National Security Act does not establish the duty to notify the
person under surveillance of the measure taken when it is over, provided
that the interests of national security are not endangered by such disclosure,
as paragraph 234 of Roman Zakharov determines, following here again
Klass and Others53. No special guarantees with regard to the secrecy of
lawyer-client, doctor-patient, priest-penitent and journalist-source privileged
communications are included in the Hungarian legal regime either54.
The lack of effective remedies
31. Section 58 of the National Security Act prohibits appeals against the
Minister of Justice decision on any motion for a covert surveillance measure
under Section 7/E (3) of the Police Act. The absence of any ex post facto
notification aggravates the situation of helplessness of the surveilled
persons. Hence, the complaint procedure outlined in Sections 11 (5) and 14
(4) (c) to (f) of the National Security Act provides a merely virtual defence
possibility to the surveilled persons55. Consequently, persons under
surveillance in Hungary, like in Russia, have no real possibility of lodging
52
See also my separate opinion in Draksas, cited above, page 26, point (8).
Klass and Others, cited above, §§ 55 and 56. See also my separate opinion in Draksas,
cited above, page 26, point (9), and page 29 for similar defects of the Lithuanian law.
54
See also my separate opinion in Draksas, cited above, page 26, point (10). The
Parliamentary Assembly Resolution 1954 (2013), cited above, reiterated that measures such
as interception orders or actions concerning communication or correspondence of
journalists or their employers or surveillance orders or actions concerning journalists, their
contacts or their employers should not be applied if their purpose is to circumvent the right
of journalists not to disclose information identifying a source. The Venice Commission
underscored very recently the “particularly problematic” nature of interception of
privileged communications by means of covert intelligence of lawyers, priests or journalists
and gave the example of covert surveillance of journalists in order to identify their sources
(Venice Commission Update of the 2007 report, cited above, paras. 18 and 106-108).
55
This is confirmed by the inexistence of complaints to the National Security Commission
(annex 1 of the applicants’ observations, confirmed by the Government observations of 14
January 2015).
53