than covert intelligence. People targeted by such surveillance lose all control over
information pertaining to their person and character. This is because of the very essence of
covert intelligence, which lies in keeping the target unaware that the agencies are
collecting intelligence on him. As a result, the subject becomes helplessly exposed in his
communications with his most intimate relations without knowing about it. The secrecy of
the observation and the hiding of the observer render the target powerless for the entire
duration of the surveillance. In other words, the person who does not know he is being
watched will not have the slightest chance to protest the intrusion into his privacy.
Admittedly, there are certain legitimate interests universally recognized in constitutional
democracies, such as national and public security, the prevention and investigation of
crimes, and the enforcement of the state’s penal claims, that may justify restrictions on
privacy. That said, the restriction of privacy must always pass the test necessity and
commensurability as a condition for remaining constitutional. The criterion of necessity
will not be satisfied unless the engagement of the weapons of secret intelligence is
inevitably forced by one or more of the objectives listed above; in other words, when the
qualified nature of the given threat would keep conventional methods of investigation
ineffectual [Constitutional Court Resolution 2/2007 (I. 24.) AB]. As for the
commensurability or proportionality of the restriction, that depends on the constitutional
safeguards in place. Even when circumstances justifying the need for covert intelligence
obtain, secret investigation cannot be legitimate unless underpinned by adequate
institutional safeguards set forth by law in a rigorous and transparent procedural order,
which cover every single detail of the invasion of privacy. In a constitutional democracy,
there can be no consideration whatsoever, whether of utility or equity, that can sanctify
disregard for safeguards ordered to protect the freedom of individuals. [Constitutional
Court Resolutions 47/2003. (X. 27.) AB and 2/2007 (I. 24.) AB]
IV.
In its practice to date [cf. Resolution No. 2/2007. (I. 24.) AB and elsewhere], the
Constitutional Court has always displayed unshakable resolve in thwarting attempts to curb
fundamental rights that relied on arguments external to other constitutional rights. This
resolve certainly does not obviate the need to oppose arguments less easily interpreted in
the legal sense, such as those citing public security or public information as grounds for the
restriction, because the boundaries are less than sharply clear. It is all the more vital that
we counter such attempts because arguments citing the threat of terrorism follow precisely
this logic. Perhaps the most precise and most famous summation of this situation comes
from Chief Justice William H. Rehnquist, who ended his speech at the 100th anniversary
celebration of the Norfolk and Portsmouth Bar Association on May 3, 2000, with the
observation that “though the laws are not silent in wartime, they speak with a muted voice”
(www.supremecourtus.gov/publicinfo/speeches/sp_05-03-00.html). At the same time,
Rehnquist contends that it is very easy to slip across the line that separates genuine
wartime emergency from vague or nonexistent threat. (Cited in Hungarian in Ronald
Dworkin, A terror és a szabadságjogok elleni támadás. In: Beszélő, Vol. 8. No. 12,
http://beszelo.c3.hu/cikkek/a-terror-es-a-szabadsagjogok-elleni-tamadas#2003-f12-07).