EHRM, 12-01-2016, nr. 37138/14

The Government did not formally contest the applicants' potential victim status within the meaning of the Court's jurisprudence, under which the mere existence of a piece of legislation allowing for the use of secret intelligence devices served as a ground for victim status, even if no such device had ever been used against an applicant. However, the Government disputed the applicants' allegations that — as staff members of a watchdog organisation — they were affected more directly by the possibility of being subjected to secret surveillance than others.

Moreover, the Government submitted that in their constitutional complaint the applicants had not complained about the presence or absence of guarantees in the entire process of secret intelligence gathering. They had only complained about the authorisation by the Minister of Justice of the interference and the data handling following the termination of the interference. The Government emphasised that in respect of any further complaints that the applicants might have in relation to other phases of the process, they had failed to exhaust the available domestic remedies.

Regarding victim status, the applicants emphasised that the lack of meaningful external control over the use of covert surveillance had put individuals, privacy in danger as nothing prevented the political power from using this prerogative arbitrarily. Their watchdog activity might not serve as a ground for secret intelligence gathering. Nevertheless, their statement — according to which they, as staff members of watchdog organisations voicing criticism against the Government, felt more frustrated and worried about being subjected to secret surveillance than average citizens probably did — could not be regarded as fear based on completely unfounded assumptions, especially if considering some of the Government's recent measures as being directed against civil organisations.

Concerning exhaustion of domestic remedies, the applicants did not dispute that their constitutional complaint had been focused on the system of authorisation, since only the safeguards built into this phase were able to provide adequate protection to right to privacy. This meant that guarantees related to later procedural phases were unable to counterbalance the detriment caused to the right to privacy if there was no control mechanism built into the process of authorisation of secret surveillance that was able to impede legally unjustifiable interventions into the private sphere. However, the question as to whether this assertion was correct might only be assessed considering the procedure as a whole. The Government's suggestion that the Court should refrain from the assessment of procedural phases beyond the authorisation phase was pointless and practically not feasible. Moreover, the applicants emphasised that the complaint lodged with the Constitutional Court and the complaint submitted to the Court did not completely correspond to each other in terms of the arguments forwarded, and that therefore the Court should not refrain, purely relying on the principle of subsidiarity, from examining the question as to whether the other guarantees provided in the procedure ensured adequate protection.

As to the applicants' victim status, the Court has consistently held in its case-law that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see, inter alia, Klass and Others v. Germany, 6 September 1978, § 33, Series A no. 28; N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002-X; and Krone Verlag GmbH & Co. KG v. Austria (no. 4), no. 72331/01, § 26, 9 November 2006).

However, in recognition of the particular features of secret surveillance measures and the importance of ensuring effective control and supervision of them, the Court has accepted that, under certain circumstances, an individual may claim to be a victim on account of the mere existence of legislation permitting secret surveillance, even if he cannot point to any concrete measures specifically affecting him. The Court's approach to assessing whether there has been an interference in cases raising a complaint about the legislation allowing secret surveillance measures was set out in its Klass and Others judgment (cited above, §§ 34 and 36) as follows:

Following Klass and Others (cited above) and Malone v. the United Kingdom (2 August 1984, § 64, Series A no. 82), the former Commission, in a number of cases against the United Kingdom in which the applicants alleged actual interception of their communications, emphasised that the test in Klass and Others could not be interpreted so broadly as to encompass every person in the United Kingdom who feared that the security services may have conducted surveillance of him. Accordingly, the Commission required applicants to demonstrate that there was a ‘reasonable likelihood’ that the measures had been applied to them (see, for example, Esbester v. the United Kingdom, no. 18601/91, Commission decision of 2 April 1993; Redgrave v. the United Kingdom, no. 20271/92, Commission decision of 1 September 1993; and Matthews v. the United Kingdom, no. 28576/95, Commission decision of 16 October 1996); subsequently, the Court applied a similar approach (see Halford v. the United Kingdom, 25 June 1997, §§ 56 to 57, Reports of Judgments and Decisions 1997-III).

More pertinently with regard to the present application, in other cases which concerned complaints about the legislation and practice permitting secret surveillance measures, the Court has reiterated the Klass and Others approach on a number of occasions (see, inter alia, Weber and Saravia (dec.), no. 54934/00, § 78, ECHR 2006 XI; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, §§ 58 to 60, 28 June 2007; Iliya Stefanov v. Bulgaria, no. 65755/01, § 49, 22 May 2008; Liberty and Others v. the United Kingdom, no. 58243/00, §§ 56 to 57, 1 July 2008; and Iordachi and Others v. Moldova, no. 25198/02, §§ 30 to 35, 10 February 2009).

In the case of Kennedy v. the United Kingdom (no. 26839/05, § 124, 18 May 2010) the Court held that in order to assess, in a particular case, whether an individual can claim an interference as a result of the mere existence of legislation permitting secret surveillance measures, the Court must have regard to the availability of any remedies at the national level and the risk of secret surveillance measures being applied to him. Where there is no possibility of challenging the alleged application of secret surveillance measures at domestic level, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified. In such cases, even where the actual risk of surveillance is low, there is a greater need for scrutiny by the Court.

Most recently, the Court adopted, in Roman Zakharov v. Russia ([GC], no. 47143/06, §§ 170–172, 4 December 2015), a harmonised approach based on Kennedy, according to which firstly the Court will take into account the scope of the legislation permitting secret surveillance measures by examining whether the applicant can possibly be affected by it, either because he or she belongs to a group of persons targeted by the contested legislation or because the legislation directly affect all users of communication services by instituting a system where any person can have his or her communications intercepted; and secondly the Court will take into account the availability or remedies at the national level and will adjust the degree of scrutiny depending on the effectiveness of such remedies.

The Court observes that the present applicants complained of an interference with their homes, communications and privacy on the basis of the very existence of the law permitting secret surveillance and the lack of adequate safeguards, admitting that their personal or professional situations were not of the kind that might normally attract the application of surveillance measures. They nevertheless thought they were at particular risk of having their communications intercepted as a result of their employment with civil-society organisations criticising the Government.

The Court observes that affiliation with a civil-society organisation does not fall within the grounds listed in section 7/E (1) point (a) sub-point (ad) and point (e) of the Police Act, which concern in essence terrorist threats and rescue operations to the benefit of Hungarian citizens in dangerous situations abroad. Nevertheless, it appears that under these provisions any person within Hungary may have his communications intercepted if interception is deemed necessary on one of the grounds enumerated in the law (see paragraph 16 above). The Court considers that it cannot be excluded that the applicants are at risk of being subjected to such measures should the authorities perceive that to do so might be of use to pre-empt or avert a threat foreseen by the legislation — especially since the law contains the notion of ‘persons concerned identified … as a range of persons’ which might include indeed any person.

The Court also notes that, by examining their constitutional complaint on the merits, the Constitutional Court implicitly acknowledged the applicants' being personally affected by the legislation in question for the purposes of section 26(1) of the Act on the Constitutional Court (see paragraph 19 above).

It is of importance at this juncture to note that they are staff members of a watchdog organisation, whose activities have previously been found similar, in some ways, to those of journalists (see Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 36, 14 April 2009). The Court accepts the applicants' suggestion that any fear of being subjected to secret surveillance might have an impact on such activities (see, mutatis mutandis, Nagla v. Latvia, no. 73469/10, § 82, 16 July 2013). In any case, whether or not the applicants belong to a targeted group, the Court considers that the legislation directly affects all users of communication systems and all homes.

Considering in addition that the domestic law does not appear to provide any possibility for an individual who alleges interception of his or her communications to lodge a complaint with an independent body, the Court is of the view that the applicants can claim to be victims of a violation of their rights under the Convention, within the meaning of Article 34 of the Convention.

Concerning the exhaustion of domestic remedies, the Court is satisfied that the applicants brought to the attention of the national authorities, in the instant case the Constitutional Court, the essence of their grievance, that is, the alleged insufficiency of guarantees in the rules governing ‘section 7/E (3) surveillance’. While noting the Government's objection according to which this constitutional complaint was focused on but a few central issues, the Court considers that, because of the nature of the problem, the system of guarantees preceding the measures, prevailing during their application and following it is a complex set of arrangements which must be assessed in its entirety (see Klass and Others, cited above, §§ 39 to 60). Consequently — and assuming that the procedure before the Constitutional Court was at all an effective remedy to exhaust in the circumstances — the fact that the applicants' constitutional complaint did not encompass all possible issues but highlighted a few cannot be held against them so as to enable the rejection of their complaints on account of non-exhaustion of domestic remedies, in so far as their representations made to the Court on these issues can be seen as supplementing the ones submitted to the Constitutional Court (see, mutatis mutandis, Gustafsson v. Sweden, 25 April 1996, § 51, Reports 1996-II).

Moreover, the Court concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.

It is not in dispute between the parties that the measures which the TEK is entitled to apply under section 56 of the National Security Act (see paragraph 17 above), that is, to search and keep under surveillance the applicants' homes secretly, to check their postal mail and parcels, to monitor their electronic communications and computer data transmissions and to make recordings of any data acquired through these methods can be examined from the perspective of the notions of ‘private life’, ‘home’ and ‘correspondence’, guaranteed under Article 8 of the Convention. The Court sees no reason to hold otherwise (see Klass and Others, cited above, § 41).

In the mere existence of the legislation itself there is involved, for all those to whom the legislation could be applied, a menace of surveillance; this menace necessarily strikes at freedom of communication between users of the postal and telecommunication services and thereby constitutes an ‘interference by a public authority’ with the exercise of the applicants' right to respect for private and family life and for correspondence (see Klass and Others, cited above, § 41). Given the technological advances since the Klass and Others case, the potential interferences with email, mobile phone and Internet services as well as those of mass surveillance attract the Convention protection of private life even more acutely (see Copland v. the United Kingdom, no. 62617/00, § 41, ECHR 2007-I).

Any interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which paragraph 2 of Article 8 refers and is necessary in a democratic society in order to achieve any such aim. This provision, ‘since it provides for an exception to a right guaranteed by the Convention, is to be narrowly interpreted. Powers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions’ (see Klass and Others, cited above, § 42).

The Court finds that the aim of the interference in question is to safeguard national security and/or to prevent disorder or crime in pursuance of Article 8 § 2. This has not been in dispute between the parties. On the other hand, it has to be ascertained whether the means provided under the impugned legislation for the achievement of the above-mentioned aim remain in all respects within the bounds of what is necessary in a democratic society (see Klass and Others, cited above, § 46).

In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in law in order to avoid abuses of power: the nature of offences which may give rise to an interception order; the definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or destroyed (see Huvig v. France, 24 April 1990, § 34, Series A no. 176-B; Amann v. Switzerland [GC], no. 27798/95, §§ 56–58, ECHR 2000-11; Valenzuela Contreras v. Spain, 30 July 1998, § 46, Reports 1998-V; Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003; Weber and Saravia, cited above, § 95; Association for European Integration, cited above, § 76; and Roman Zakharov, cited above, § 231).

When balancing the interest of the respondent State in protecting its national security through secret surveillance measures against the seriousness of the interference with an applicant's right to respect for his or her private life, the national authorities enjoy a certain margin of appreciation in choosing the means for achieving the legitimate aim of protecting national security. However, this margin is subject to European supervision embracing both legislation and decisions applying it. In view of the risk that a system of secret surveillance set up to protect national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there are adequate and effective guarantees against abuse. The assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the ‘interference’ to what is ‘necessary in a democratic society’ (see Klass and Others, cited above, §§ 49, 50 and 59; Weber and Saravia, cited above, §106; Kvasnica v. Slovakia, no. 72094/01, § 80, 9 June 2009; Kennedy, cited above, §§ 153 and 154; and Roman Zakharov, cited above, § 232).

The Court has found an interference under Article 8 § 1 in respect of the applicants' general complaint about the rules of ‘section 7/E (3) surveillance’ and not in respect of any actual interception activity allegedly taking place. Accordingly, in its examination of the justification for the interference under Article 8 § 2, the Court is required to examine this legislation itself and the safeguards built into the system allowing for secret surveillance, rather than the proportionality of any specific measures taken in respect of the applicants. In the circumstances, the lawfulness of the interference is closely related to the question whether the ‘necessity’ test has been complied with in respect of the ‘section 7/E (3) surveillance’ regime and it is therefore appropriate for the Court to address jointly the ‘in accordance with the law’ and ‘necessity’ requirements (see Kvasnica, cited above, § 84).

The expression ‘in accordance with the law’ in Article 8 § 2 requires, first, that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be compatible with the rule of law and accessible to the person concerned, who must, moreover, be able to foresee its consequences for him (see, among other authorities, Kruslin v. France, 24 April 1990, § 27, Series A no. 176-A; Huvig, cited above, § 26; Lambert v. France, 24 August 1998, § 23, Reports 1998-V; Perry v. the United Kingdom, no. 63737/00, § 45, ECHR 2003-IX (extracts); Dumitru Popescu v. Romania (no. 2), no. 71525/01, § 61, 26 April 2007; Association for European Integration, cited above, § 71; and Liberty, cited above, § 59). The ‘quality of law’ in this sense implies that the domestic law must not only be accessible and foreseeable in its application, it must also ensure that secret surveillance measures are applied only when ‘necessary in a democratic society’, in particular by providing for adequate and effective safeguards and guarantees against abuse (see Roman Zakharov, cited above, § 236).

It is not in dispute that the interference in question had a legal basis. The relevant rules are contained in statute law, that is, in the Police Act and the National Security Act. Their accessibility has not been called into question.

The applicants, however, contended that this law was not sufficiently detailed and precise to meet the ‘foreseeability’ requirement of Article 8 § 2, as it did not provide for sufficient guarantees against abuse and arbitrariness.

The reference to ‘foreseeability’ in the context of interception of communications cannot be the same as in many other fields. Foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident. It is therefore essential to have clear, detailed rules on interception of telephone conversations, especially as the technology available for use is continually becoming more sophisticated. The domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see Roman Zakharov, cited above, § 229).

In the present case, two situations may entail secret surveillance, namely, the prevention, tracking and repelling of terrorist acts in Hungary (section 7/E (1) a) (ad) of the Police Act) and the gathering of intelligence necessary for rescuing Hungarian citizens in distress abroad (section 7/E (1) e), see in paragraph 16 above).

The applicants criticised these rules as being insufficiently clear.

The Court is not wholly persuaded by this argument, recalling that the wording of many statutes is not absolutely precise, and that the need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague (see Kokkinakis v. Greece, 25 May 1993, § 40, Series A no. 260-A). It is satisfied that even in the field of secret surveillance, where foreseeability is of particular concern, the danger of terrorist acts and the needs of rescue operations are both notions sufficiently clear so as to meet the requirements of lawfulness. For the Court, the requirement of ‘foreseeability’ of the law does not go so far as to compel States to enact legal provisions listing in detail all situations that may prompt a decision to launch secret surveillance operations. The reference to terrorist threats or rescue operations can be seen in principle as giving citizens the requisite indication (compare and contrast Iordachi and Others, cited above, § 46). For the Court, nothing indicates in the text of the relevant legislation that the notion of ‘terrorist acts’, as used in section 7/E (1) a) (ad) of the Police Act, does not correspond to the crime of the same denomination contained in the Criminal Code (see paragraph 16 above).

However, in matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see Roman Zakharov, cited above, § 247).

The Court notes that under ‘section 7/E (3) surveillance’, it is possible for virtually any person in Hungary to be subjected to secret surveillance. The legislation does not describe the categories of persons who, in practice, may have their communications intercepted. In this respect, the Court observes that there is an overlap between the condition that the categories of persons be set out and the condition that the nature of the underlying situations be clearly defined. The relevant circumstances which can give rise to interception, discussed in the preceding paragraphs, give guidance as to the categories of persons who are likely, in practice, to have their communications intercepted. Under the relevant Hungarian law, the proposal submitted to the responsible government minister must specify, either by name or as a range of persons, the person or persons as the interception subjects and/or any other relevant information capable of identifying them as well as the premises in respect of which the permission is sought (section 57 (2) of the National Security Act, see paragraph 17 above).

It is of serious concern, however, that the notion of ‘persons concerned identified … as a range of persons’ might include indeed any person and be interpreted as paving the way for the unlimited surveillance of a large number of citizens. The Court notes the absence of any clarification in domestic legislation as to how this notion is to be applied in practice (see, mutatis mutandis, Roman Zakharov, cited above, § 245). For the Court, the category is overly broad, because there is no requirement of any kind for the authorities to demonstrate the actual or presumed relation between the persons or range of persons ‘concerned’ and the prevention of any terrorist threat — let alone in a manner enabling an analysis by the authoriser which would go to the question of strict necessity (see in paragraphs 72 and 73 below) with regard to the aims pursued and the means employed — although such an analysis appears to be warranted by section 53 (2) of the National Security Act, according to which ‘secret intelligence gathering [may only be applied] if the intelligence needed … cannot be obtained in any other way’.

For the Court, it is a natural consequence of the forms taken by present-day terrorism that governments resort to cutting-edge technologies in pre-empting such attacks, including the massive monitoring of communications susceptible to containing indications of impending incidents. The techniques applied in such monitoring operations have demonstrated a remarkable progress in recent years and reached a level of sophistication which is hardly conceivable for the average citizen (see the CDT's submissions on this point in paragraphs 49–50 above), especially when automated and systemic data collection is technically possible and becomes widespread. In the face of this progress the Court must scrutinise the question as to whether the development of surveillance methods resulting in masses of data collected has been accompanied by a simultaneous development of legal safeguards securing respect for citizens' Convention rights. These data often compile further information about the conditions in which the primary elements intercepted by the authorities were created, such as the time and place of, as well as the equipment used for, the creation of computer files, digital photographs, electronic and text messages and the like. Indeed, it would defy the purpose of government efforts to keep terrorism at bay, thus restoring citizens' trust in their abilities to maintain public security, if the terrorist threat were paradoxically substituted for by a perceived threat of unfettered executive power intruding into citizens' private spheres by virtue of uncontrolled yet far-reaching surveillance techniques and prerogatives. In this context the Court also refers to the observations made by the Court of Justice of the European Union and, especially, the United Nations Special Rapporteur, emphasising the importance of adequate legislation of sufficient safeguards in the face of the authorities' enhanced technical possibilities to intercept private information (see paragraphs 23 and 24 above).

The Court recalls that in Kennedy, the impugned legislation did not allow for ‘indiscriminate capturing of vast amounts of communications’ (see Kennedy, cited above, § 160) which was one of the elements enabling it not to find a violation of Article 8. However, in the present case, the Court considers that, in the absence of specific rules to that effect or any submissions to the contrary, it cannot be ruled out that the broad-based provisions of the National Security Act can be taken to enable so-called strategic, large-scale interception, which is a matter of serious concern.

The Court would add that the possibility occurring on the side of Governments to acquire a detailed profile (see the CDT's submissions on this in paragraph 49 above) of the most intimate aspects of citizens' lives may result in particularly invasive interferences with private life. Reference is made in this context to the views expressed by the Court of Justice of the European Union and the European Parliament (see paragraphs 23 and 25 above). This threat to privacy must be subjected to very close scrutiny both on the domestic level and under the Convention. The guarantees required by the extant Convention case-law on interceptions need to be enhanced so as to address the issue of such surveillance practices. However, it is not warranted to embark on this matter in the present case, since the Hungarian system of safeguards appears to fall short even of the previously existing principles.

Moreover, under section 57 (2) b), in the motion requesting permission from the Minister, the director must substantiate the necessity for the secret intelligence gathering (see paragraph 17 above). However, reading the relevant provisions jointly, the Court is not reassured that an adequate analysis of the aims pursued and the means applied in performing the national security tasks is possible or guaranteed. Indeed, the mere requirement for the authorities to give reasons for the request, arguing for the necessity of secret surveillance, falls short of an assessment of strict necessity (see in paragraphs 72 and 73 below). There is no legal safeguard requiring TEK to produce supportive materials or, in particular, a sufficient factual basis for the application of secret intelligence gathering measures which would enable the evaluation of necessity of the proposed measure — and this on the basis of an individual suspicion regarding the target person (see Roman Zakharov, cited above, §§ 259 and 261). For the Court, only such information would allow the authorising authority to perform an appropriate proportionality test.

Quite apart from what transpires from section 53(2) of the National Security Act, the Court recalls at this point that in Klass and Others it held that ‘powers of secret surveillance of citizens … are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions’ (see Klass and Others, cited above, § 42, quoted in paragraph 54 above). Admittedly, the expression ‘strictly necessary’ represents at first glance a test different from the one prescribed by the wording of paragraph 2 of Article 8, that is, ‘necessary in a democratic society’.

However, given the particular character of the interference in question and the potential of cutting-edge surveillance technologies to invade citizens' privacy, the Court considers that the requirement ‘necessary in a democratic society’ must be interpreted in this context as requiring ‘strict necessity’ in two aspects. A measure of secret surveillance can be found as being in compliance with the Convention only if it is strictly necessary, as a general consideration, for the safeguarding the democratic institutions and, moreover, if it is strictly necessary, as a particular consideration, for the obtaining of vital intelligence in an individual operation. In the Court's view, any measure of secret surveillance which does not correspond to these criteria will be prone to abuse by the authorities with formidable technologies at their disposal. The Court notes that both the Court of Justice of the European Union and the United Nations Special Rapporteur require secret surveillance measures to answer to strict necessity (see paragraphs 23 and 24 above) — an approach it considers convenient to endorse. Moreover, particularly in this context the Court notes the absence of prior judicial authorisation for interceptions, the importance of which will be examined below in paragraphs 75 et seq. This safeguard would serve to limit the law-enforcement authorities' discretion in interpreting the broad terms of ‘persons concerned identified … as a range of persons’ by following an established judicial interpretation of the terms or an established practice to verify whether sufficient reasons for intercepting a specific individual's communications exist in each case (see, mutatis mutandis, Roman Zakharov, cited above, § 249). It is only in this way that the need for safeguards to ensure that emergency measures are used sparingly and only in duly justified cases can be satisfied (see Roman Zakharov, cited above, § 266).

Furthermore, in respect of the duration of any surveillance, the National Security Act stipulates, first, the period after which a surveillance permission will expire (that is, after a maximum of 90 days, as per section 58 (4) of the National Security Act) and, second, the conditions under which a renewal is possible. Permissions can be renewed for another 90 days; and the government minister in charge must authorise any such renewal upon a reasoned proposal from the service involved (see paragraph 17 above). Section 60 stipulates that the permission must be cancelled if it is no longer necessary, if the continued surveillance has no prospect of producing results, if its time-limit has expired or if it turns out to be in breach of the law for any reason. The Court cannot overlook, however, that it is not clear from the wording of the law — especially in the absence of judicial interpretation — if such a renewal of the surveillance warrant is possible only once or repeatedly, which is another element prone to abuse.

A central issue common to both the stage of authorisation of surveillance measures and the one of their application is the absence of judicial supervision. The measures are authorised by the Minister in charge of justice upon a proposal from the executives of the relevant security services, that is, of the TEK which, for its part, is a dedicated tactical department within the police force, subordinated to the Ministry of Home Affairs, with extensive prerogatives to apply force in combating terrorism (see section 1(2) subsection 15 of the Police Act quoted in paragraph 16 above). For the Court, this supervision, eminently political (as observed by the Constitutional Court, see point 105 of the decision quoted in paragraph 20 above) but carried out by the Minister of Justice who appears to be formally independent of both the TEK and of the Minister of Home Affairs — is inherently incapable of ensuring the requisite assessment of strict necessity with regard to the aims and the means at stake. In particular, although the security services are required, in their applications to the Minister for warrants, to outline the necessity as such of secret information gathering, this procedure does not guarantee that an assessment of strict necessity is carried out, notably in terms of the range of persons and the premises concerned (see section 57 (2) of the National Security Act quoted in paragraph 17 above).

The Court notes the Government's argument according to which a government minister is better positioned than a judge to authorise or supervise measures of secret surveillance. Although this consideration might be arguable from an operational standpoint, the Court is not convinced of the same when it comes to an analysis of the aims and means in terms of strict necessity. In any case, it transpires from the parties' submissions that anti-terrorism surveillance measures in Hungary have never been subjected to judicial control, for which reason it is not possible to pass judgement on its advantages or drawbacks. The Court finds therefore the Government's argument on this point unpersuasive (see, a contrario, Roman Zakharov, cited above, § 259).

As regards the authority competent to authorise the surveillance, authorising of telephone tapping by a non-judicial authority may be compatible with the Convention (see, for example, Klass and Others, cited above, § 51; Weber and Saravia, cited above, § 115; and Kennedy, cited above, § 31), provided that that authority is sufficiently independent from the executive (see Roman Zakharov, cited above, § 258). However, the political nature of the authorisation and supervision increases the risk of abusive measures. The Court recalls that the rule of law implies, inter alia, that an interference by the executive authorities with an individual's rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure. In a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge (see Klass and Others, cited above, §§ 55 and 56). The Court recalls that in Dumitru Popescu (cited above, §§ 70–73) it expressed the view that either the body issuing authorisations for interception should be independent or there should be control by a judge or an independent body over the issuing body's activity. Accordingly, in this field, control by an independent body, normally a judge with special expertise, should be the rule and substitute solutions the exception, warranting close scrutiny (see Klass and Others, cited above, §§ 42 and 55). The ex ante authorisation of such a measure is not an absolute requirement per se, because where there is extensive post factum judicial oversight, this may counterbalance the shortcomings of the authorisation (see Kennedy, cited above, § 167). Indeed, in certain respects and for certain circumstances, the Court has found already that ex ante (quasi-)judicial authorisation is necessary, for example in regard to secret surveillance measures targeting the media. In that connection the Court held that a post factum review cannot restore the confidentiality of journalistic sources once it is destroyed (see Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, no. 39315/06, § 101, 22 November 2012; for other circumstances necessitating ex ante authorisation see Kopp v. Switzerland, 25 March 1998, Reports 1998 II).

For the Court, supervision by a politically responsible member of the executive, such as the Minister of Justice, does not provide the necessary guarantees.

The governments' more and more widespread practice of transferring and sharing amongst themselves intelligence retrieved by virtue of secret surveillance — a practice, whose usefulness in combating international terrorism is, once again, not open to question and which concerns both exchanges between Member States of the Council of Europe and with other jurisdictions — is yet another factor in requiring particular attention when it comes to external supervision and remedial measures.

It is in this context that the external, preferably judicial, a posteriori control of secret surveillance activities, both in individual cases and as general supervision, gains its true importance (see also Klass and Others, cited above, §§ 56, 70 and 71; Dumitru Popescu, cited above, § 77; and Kennedy, cited above, §§ 184–191), by reinforcing citizens' trust that guarantees of the rule of law are at work even in this sensitive field and by providing redress for any abuse sustained. The significance of this control cannot be overestimated in view of the magnitude of the pool of information retrievable by the authorities applying highly efficient methods and processing masses of data, potentially about each person, should he be, one way or another, connected to suspected subjects or objects of planned terrorist attacks. The Court notes the lack of such a control mechanism in Hungary.

The Court concedes that by the nature of contemporary terrorist threats there can be situations of emergency in which the mandatory application of judicial authorisation is not feasible, would be counterproductive for lack of special knowledge or would simply amount to wasting precious time. This is especially true in the present-day upheaval caused by terrorist attacks experienced throughout the world and in Europe, all too often involving important losses of life, producing numerous casualties and significant material damage, which inevitably disseminate a feeling of insecurity amongst citizens. The observations made on this point by the Court in Klass and Others are equally valid in the circumstances of the present case: ‘[d]emocratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime’ (cited above, § 48).

Furthermore, where situations of extreme urgency are concerned, the law contains a provision under which the director of the service may himself authorise secret surveillance measures for a maximum of 72 hours (see sections 58 and 59 of the National Security Act quoted in paragraph 17 above). For the Court, this exceptional power should be sufficient to address any situations in which external, judicial control would run the risk of losing precious time. Such measures must however be subject to a post factum review, which is required, as a rule, in cases where the surveillance was authorised ex ante by a non-judicial authority.

The Court notes at this juncture the liability of the executive to give account, in general terms rather than concerning any individual cases, of such operations to a parliamentary committee. However, it cannot identify any provisions in Hungarian legislation permitting a remedy granted by this procedure during the application of measures of secret surveillance to those who are subjected to secret surveillance but, by necessity, are kept unaware thereof. The Minister is under an obligation to present a general report, at least twice a year, to the responsible parliamentary committee about the functioning of national security services, which report, however, does not seem to be available to the public and by this appears to fall short of securing adequate safeguards in terms of public scrutiny (see Roman Zakharov, cited above, § 283). The committee is entitled, of its own motion, to request information from the Minister and the directors of the services about the activities of the national security services. However, the Court is not persuaded that this scrutiny is able to provide redress to any individual grievances caused by secret surveillance or to control effectively, that is, in a manner with a bearing on the operations themselves, the daily functioning of the surveillance organs, especially since it does not appear that the committee has access in detail to relevant documents. The scope of their supervision is therefore limited (see, mutatis mutandis, Roman Zakharov, cited above, § 281).

Moreover, the complaint procedure outlined in section 11(5) of the National Security Act seems to be of little relevance, since citizens subjected to secret surveillance will not take cognisance of the measures applied. In regard to the latter point, the Court shares the view of the Venice Commission according to which ‘individuals who allege wrongdoing by the State in other fields routinely have a right of action for damages before the courts. The effectiveness of this right depends, however, on the knowledge of the individual of the alleged wrongful act, and proof to the satisfaction of the courts.’ (see point 243 of the Report, quoted in paragraph 21 above). A complaint under section 11(5) of the National Security Act will be investigated by the Minister of Home Affairs, who does not appear to be sufficiently independent (see Association for European Integration, cited above, § 87; and Roman Zakharov, cited above, § 278).

The Court further notes the evidence furnished by the applicants according to which the Commissioner for Fundamental Rights has never so far enquired into the question of secret surveillance (see paragraph 18 above).

In any event, the Court recalls that in Klass and Others a combination of oversight mechanisms, short of formal judicial control, was found acceptable in particular because of ‘an initial control effected by an official qualified for judicial office’ (cited above, § 56). However, the Hungarian scheme of authorisation does not involve any such official. The Hungarian Commissioner for Fundamental Rights has not been demonstrated to be a person who necessarily holds or has held a judicial office (see, a contrario, Kennedy, cited above, § 57).

Moreover, the Court has held that the question of subsequent notification of surveillance measures is inextricably linked to the effectiveness of remedies and hence to the existence of effective safeguards against the abuse of monitoring powers, since there is in principle little scope for any recourse by the individual concerned unless the latter is advised of the measures taken without his or her knowledge and thus able to challenge their justification retrospectively. As 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 (see Weber and Saravia, cited above, §135; Roman Zakharov, cited above, § 287). In Hungarian law, however, no notification, of any kind, of the measures is foreseen. This fact, coupled with the absence of any formal remedies in case of abuse, indicates that the legislation falls short of securing adequate safeguards.

It should be added that although the Constitutional Court held that various provisions in the domestic law read in conjunction secured sufficient safeguards for data storage, processing and deletion, special reference was made to the importance of individual complaints made in this context (see point 138 of the decision, quoted in paragraph 20 above). For the Court, the latter procedure is hardly conceivable, since once more it transpires from the legislation that the persons concerned will not be notified of the application of secret surveillance to them.

Lastly, the Court notes that is for the Government to illustrate the practical effectiveness of the supervision arrangements with appropriate examples (see Roman Zakharov, cited above, § 284). However, the Government were not able to do so in the instant case.

In total sum, the Court is not convinced that the Hungarian legislation on ‘section 7/E (3) surveillance’ provides safeguards sufficiently precise, effective and comprehensive on the ordering, execution and potential redressing of such measures.

Given that the scope of the measures could include virtually anyone, that the ordering is taking place entirely within the realm of the executive and without an assessment of strict necessity, that new technologies enable the Government to intercept masses of data easily concerning even persons outside the original range of operation, and given the absence of any effective remedial measures, let alone judicial ones, the Court concludes that there has been a violation of Article 8 of the Convention.