In light of the aforementioned observations, while we certainly concur with the
Constitutional Court in rejecting the restriction of fundamental rights without sound
constitutional reasons, it seems worthwhile to reexamine the problem for any utilitarian
argument that could lend support to the omission of the court from the authorization
scheme. In our opinion, no such argument exists. In fact, the very considerations of
efficiency, such as the trust in constitutional democracy and speedy, professional process,
speak in favor of judicial control as a form of protection building on the separation of
powers. In any event, when it comes to authorizing covert intelligence or withholding that
authorization, a court decision is not the least bit less efficient than a decision at the
discretion of a minister.
Although the global threat of terrorism has had its ups and downs in recent years, its
general tendency is one of abatement — let alone the fact that Hungary has never been a
prime target of international terrorism. Therefore, there no reason whatsoever why such
considerations could be used to justify the introduction in this country of restrictions on
civil liberties that are more stringent than the standard in the mid-sized and greater powers
of the West.
Pursuant to Section 58 (3) of the National Security Act, “the judge or the Minister of
Justice (hereinafter collectively: “authorizer”) must decide on the request in 72 hours of the
time of submission, allowing the request or, if finding it to be without grounds, turning it
down. No appeal shall lie against this decision.” This means that the time frames legally
available for obtaining the permission of the minister and, respectively, of the judge, are
the same. For the judge who has passed national security vetting and is professionally
qualified, issuing such authorizations forms one of his core activities, while this is but one
of the many duties of the minister, whose professional background in this regard is
doubtful at best. Furthermore, the statutory definitions to be applied in the context of
permitting covert intelligence are extremely complex, making it very difficult to deliberate
the level of suspicion involved — suffice it to recall Section 261 of the Criminal Code on
acts of terrorism. This deliberation presupposes the professional qualifications and routine
one might justly surmise a specialized judge, but hardly the minister, to possess.
The events of the recent past in Hungary also caution against ill-advised decisions. A case
in point has been the allegation, apparently without grounds, of espionage on the part of
senior officials of the national security services. In Hungary, social trust in public power
has had to face tough tests more than once lately. More often than not — and certainly as
of this writing — the Minister of Justice happens to be a party politician, whose decisions
are of necessity motivated by considerations of party policy. Vesting such an official with
the power to make decisions potentially involving a severe restriction of constitutional
rights, which often carries consequences in party politics, is not only unconstitutional but
positively counterproductive to the purpose at hand. Illegal surveillance of political
opponents is not unheard of in Western Europe as well, but the further one goes from there
the higher the likelihood of this happening quite regularly. This is evidenced by the
numerous scandals that have erupted around surveillance in Hungary in recent years, rife
with the suspicion that surveillance authorizations are being used to political ends.