interests of criminal investigation or national security. What happens in both cases is that a
stranger intrudes upon the privacy of the surveillance target by becoming cognizant of
what transpires in his home, correspondence, phone calls etc. In the case at hand, the key
constitutional question is whether there is an end that can justify the means of avoiding
independent judicial control over a specific act of restricting fundamental rights, namely
the gathering of covert intelligence. It is our position that, when the decision exerts an
influence on fundamental rights so far reaching as to virtually suspend those rights, it is
inadmissible to proceed in the absence of judicial intervention. If this were permitted, the
right to privacy, private family life, private relations, and the right to the protection of
personal data would no longer simply be restricted but provisionally rescinded in order to
accommodate the exigencies of surveillance in the interest of national security. (It goes
without saying that the supervision of the national security services by Parliament is
insufficient in this regard, given that it is a general form of oversight and not part of the
process of authorizing specific acts of covert surveillance. Unless the regulation requires
independent courts to participate in the authorization process, the right to privacy can no
longer be enforced because that right will have ceased to be inherent and inalienable, In the
absence of such a legal stipulation, the individual would be deprived of judicial protection
once and for all, as the covert nature of the surveillance means that he will not have the
chance further down the line to resort to legal remedy against intrusions into his privacy.
As we demonstrated in item II of our complaint, the twofold regulations afford levels of
safeguards that differ in more ways than just in the person of the authorizer. They also
diverge in defining the admissible objectives of covert surveillance, as well as specify
different rules as regards the fate of wrongfully collected data. Ironically, the definitions of
admissible objectives happen to afford fewer safeguards precisely when the covert
intelligence is authorized at the exclusive discretion of executive power. Where the
authorization requires the involvement of the judiciary, as a means of legal protection for
the privacy of citizens, the law imposes far more stringent conditions on the intelligence.
VI.
The anomaly of the two-tiered system of safeguards protecting fundamental rights is
readily apparent in the obligation of the counter-terrorism organization, when suspecting a
crime, to first file charges and then to deliver the collected information to the investigative
agency — including data that the police itself would not have been allowed to gather based
on the more stringent rules applicable to its own procedures. As the case may be, this could
make it easy to evade the safeguards binding for surveillance by the police, effectively
rendering those safeguards meaningless.
Budapest, June 11, 2012
Dr. Beatrix Vissy
Dr. Máté Szabó