requests for access are limited to what is strictly necessary and
persons whose data are consulted have no way of knowing that they
are under investigation, even if their data is used abusively or
unlawfully… (para 236)
196.
Accordingly, “[a]s soon as notification can be carried out without
jeopardising the purpose of the restriction after the termination of the
surveillance measure, information should be provided to the persons
concerned” (Szabó, §86). Under Hungarian law no notification of any kind
was envisaged. This factor, coupled with the absence of formal remedies in
cases of abuse, meant that, “the legislation falls short of securing adequate
safeguards” (§86).
197.
The Court’s approach in Szabó reflects the recommendations contained in
the 2013 Report of the United Nations Special Rapporteur on the
promotion and protection of the right to freedom of opinion and
expression, which stated:
Individuals should have a legal right to be notified that they have
been subjected to communications surveillance or that their
communications data has been accessed by the State. Recognizing
that advance or concurrent notification might jeopardize the
effectiveness of the surveillance, individuals should nevertheless be
notified once surveillance has been completed and have the
possibility to seek redress in respect of the use of communications
surveillance measures in their aftermath.119
198.
The CoE HR Commissioner has also expressly supported “a system of
notification when a person has been the subject of surveillance”.120
199.
Notification becomes especially important in the context of the s8(4)
Regime both because it lacks prior independent authorisation and the IPT
has limited access to redress through its recent rulings. Nor does the
IOCC provide an effective remedy. He has no power to refer a case to the
IPT for a remedy. Nor is he permitted to notify the victim of any excessive
119
120
Cited and quoted in Szabó, §24.
Memorandum on Surveillance, para 25.
78