Lexploria

Information Note on the Court’s case-law 192

January 2016

Szabó and Vissy v. Hungary - 37138/14

Judgment 12.1.2016 [Section IV]

Article 8

Article 8-1

Respect for correspondence

Respect for home

Respect for private life

Absence of sufficient guarantees against abuse in legislation on secret surveillance: violation

Facts – In 2011 an Anti-Terrorism Task Force (“the TEK”) was established as a branch of the Hungari an police. Its competence was defined in section 7/E of the Police Act, as amended in 2011, and the National Security Act. In their application to the European Court, the applicants complained that the legislation, and in particular “section 7/E (3) survei llance” of the Police Act, violated Article 8 of the Convention because it was not sufficiently detailed and precise and did not provide sufficient guarantees against abuse and arbitrariness.

Law – Article 8: Under the legislation, two situations could ent ail secret surveillance by the TEK: the prevention, tracking and repelling of terrorist acts in Hungary and the gathering of intelligence necessary for rescuing Hungarian citizens in distress abroad. The TEK was entitled to search and keep under surveillan ce homes secretly, to check post and parcels, to monitor electronic communications and computer data transmissions and to make recordings of any data acquired through these methods. The Court found that these measures constituted interference by a public a uthority with the exercise of the applicants’ right to respect for their private life, home and correspondence.

In the context of secret surveillance measures, the foreseeability requirement did not compel States to list in detail all situations that could prompt a decision to launch secret surveillance operations. However, in matters affecting fundamental rights legislation granting discretion to the executive in the sphere of national security had to indicate the scope of such discretion and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference. Under the Hungarian legislation authorisation for interception could be given in respect not only of named persons, but also of a “range of per sons”, a notion that was overly broad and could pave the way for the unlimited surveillance of a large number of citizens. The legislation did not clarify how that notion was to be applied in practice and the authorities were not required to demonstrate th e actual or presumed relation between the persons or range of persons concerned and the prevention of any terrorist threat. In the Court’s view, it would defy the purpose of government efforts to keep terrorism at bay, and thus restore citizens’ trust in t heir abilities to maintain public security, if the terrorist threat were paradoxically replaced by a perceived threat of unfettered executive power intruding into citizens’ private spheres by virtue of uncontrolled yet far-reaching surveillance techniques. In the present case, it could not be ruled out that the domestic provisions could be interpreted to enable strategic, large-scale interception. That was a matter of serious concern.

In the context of secret surveillance, the need for the interference to be “necessary in a democratic society” had to be interpreted as requiring that any measures taken should be strictly necessary both, as a general consideration, to safeguard democratic institutions and, as a particular consideration, to obtain essential intelligence in an individual operation. Any measure of secret surveillance which did not fulfil the strict necessity criterion would be prone to abuse by the authorities. In this connec tion, the Court noted the absence from the legislation of safeguards such as a requirement for prior judicial authorisation of interceptions or of clear provisions governing the frequency of renewals of surveillance warrants. Although surveillance measures were subject to prior authorisation by the Minister of Justice, such supervision was eminently political and inherently incapable of ensuring the requisite assessment of strict necessity. For the Court, supervision by a politically responsible member of t he executive did not provide the necessary guarantees.

The Court accepted that situations of extreme urgency could arise in which a requirement for prior judicial control would run the risk of losing precious time. It emphasised, however, that in such case s any surveillance measures authorised ex ante by a non-judicial authority had to be subject to a post factum judicial review. The Court noted that under the Hungarian system the executive was required to give account in general terms of such operations to a parliamentary committee. However, it was not persuaded that this reporting procedure, which did not appear to be public, was able to provide redress in respect of any individual grievances caused by secret surveillance or to control effectively the dail y functioning of the surveillance organs. Moreover, the domestic law did not provide a judicial-control mechanism that could be triggered by those subject to secret surveillance, as the complaint procedure did not foresee any kind of subsequent notificatio n of the surveillance measures to the citizens subjected to them. Furthermore, complaints were to be investigated by the Minister of Home Affairs, who did not appear to be sufficiently independent.

It followed from the above considerations that the legisla tion did not provide sufficiently precise, effective and comprehensive safeguards on the ordering, execution and potential redressing of surveillance measures.

Conclusion : violation (unanimously).

The Court found no violation of Article 13 of the Convention taken together with Article 8 since Article 13 was not to be interpreted as requiring a remedy against the state of domestic law.

Article 41: finding of a violation constituted sufficient just sa tisfaction in respect of any non-pecuniary damage.

(See also the Factsheets on Personal data protection and New technologies )

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