All things considered, having a judge authorize covert intelligence is both more efficient
and more conducive to the purpose than applying the unconstitutional provision we contest
herein. There is simply nothing that would warrant sustaining that provision in force — no
reason, citing efficiency or otherwise, for “muting the voice” of law in this specific
instance.
V.
The point of stipulating extrinsic authorization for covert intelligence is to ensure that, in
deliberating a decision on allowing a specific instance of surveillance, the interests of
privacy are taken into consideration in addition to those of covert intelligence. This is the
only way to guarantee that the infringement of privacy is kept to a bare practicable
minimum. This in turn presupposes an extrinsic authorizer who is capable, by virtue of his
legal status, of deliberating between the two conflicting interests. An independent court
certainly meets this criterion.
Covert intelligence gathered as per 56 of the National Security Act and Section 69 of the
Police Act cannot be constitutional if it is performed without a court permission. The rule
that requires nothing more than authorization by the minister fails to furnish sufficient
safeguards to protect the fundamental rights discussed above. To put it differently, we
cannot talk about an adequate representation of fundamental rights when an arm of
executive power (notably the Ministry of Justice) adopts its decision on the initiative of
another organ of the same executive power (the CTC) — a case of two organs basically
acting in unison because both are subordinated to the government and subservient to the
interests thereof. In the disputed case, moreover, the minister cannot even be regarded as
“extrinsic” to the system public administration. In fact, he is himself in charge of
supervising the activities of the Counter Terrorism Center. This goes to show that not only
is the contested provision objectionable from the point of view of fundamental rights, but it
comes up short of meeting the constitutional principles of organizing and structuring
executive power.
In a previous case not expressly concerned with the need for a court warrant, the
Constitutional Court sustained the distinct rules of authorization (i.e. authorization by the
court vs. the Minister of Justice) as set forth respectively in the Police Act and the National
Security Act, on the grounds that the objectives of the two types of surveillance in question
are themselves different. (It bears repeating that the need for judicial control did not form
the subject of this constitutional review.) Here, the Constitutional Court argued that, “when
the covert intelligence is gathered in the service of criminal investigation, one must
deliberate between the infringement of the fundamental rights of the individuals concerned
and the interest of that criminal investigation, whereas in issuing the authorization for
purposes of national security, the object of the deliberation is the clash between the
interests of national security (which does not necessarily entail consequences of criminal
proceedings) and the violation of fundamental rights.” [Constitutional Court Resolution
No. 2/2007. (I. 24.) AB] In our opinion, this assertion of the Constitutional Court needs
revision, because the infringement is of the same nature and extent whether it serves the