and record electronic communications, as well as access and record data forwarded by
means of or stored on computers or computer networks [Police Act Section 69 (1),
virtually identical to Section 56 of the National Security Act].
Which of the two regulations serves as the basis for an act of gathering covert intelligence
becomes significant not in terms of the essence of the activity so much as of the difference
between the respective institutional safeguards protecting the privacy of citizens vis á vis
these activities. Indeed, the safeguards stipulated by the Police Act for the gathering of
covert intelligence are more stringent than those provided by the National Security Act:
● Pursuant to the Police Act, covert intelligence is only allowed in the interest of
locating individuals for whom a warrant has been issued on suspicion of a felony,
or of investigating certain serious crimes specified by the Act. The National
Security Act contains no such constraint.
● The intelligence under the Police Act is subject to prior court warrant. By contrast,
covert intelligence under the National Security Act is authorized by the Minister of
Justice.
● Under either Act, the authorization request must be explained by the requester.
However, the Police Act sets forth the types of cases where such a process can be
conducted, and therefore the legitimacy of the covert intelligence is legally bound
because it can be justified by demonstrating the existence of specific legal
conditions. By contrast, the National Security Act fails to specify any such
conditions, effectively reducing any explanation to generic terms that are not
legally bound.
● The Police Act orders all recorded information indifferent for the purpose of the
intelligence, including the data of uninvolved persons, to be destroyed within eight
days of the conclusion of the surveillance employing special devices. The National
Security Act contains no such obligation.
3. The provision of the Police Act we challenge accomplishes a violation of our
constitutional rights by enabling the counter-terrorism organization to collect covert
intelligence under the rules of the National Security Act, which contain far fewer
safeguards than do those of the Police Act. This injurious situation could thus be
terminated by repealing the passages contested herein, while making the counter-terrorism
organization’s gathering of covert intelligence subject to the rules of the Police Act, which
afford broader legal safeguards.
III.
Collecting intelligence by the means available to the secret services amounts to the most
severe restriction of the right to privacy and family life as well as the intimately related
right to informational self-determination. All of these rights are enshrined in Article VI of
the Fundamental Law. As construed by the practice of the Constitutional Court as well as
by others, these rights are closely affiliated with human dignity and are collectively
destined to keep one’s privacy immune to intrusions against one’s will [Constitutional
Court Resolution 36/2005. (X. 5.) AB]. There is no more drastic restriction of these rights