The Ministry of Interior has issued a draft bill to modify the regulation on secret surveillance for national security purposes currently in effect. Certain national security services and the Counter Terrorism Centre (TEK, a special unit of the police to counter terrorism) can conduct secret surveillance to prevent actions that are contrary to the political, economic and defence interests of Hungary and to promote other aims specified in the act on national security.
The present regulation is not without defects from the aspects of fundamental rights, some of which were addressed by the European Court of Human Rights in its judgement in the case Szabó and Vissy v. Hungary. Eötvös Károly Policy Institute had an important role in the case: the application was filed by two of its former employees who were represented in the procedure by the chairman of the Institute. The judgement, which became final in June 2016, held that the present regulation of secret information gathering for national security purposes violates Article 8 (the right to respect for private and family life). The draft bill now is intended to bring the challenged law into conformity with the requirements set forth by the ECtHR. Among others, the Strasbourg Court pointed out that the regulation does not specify the scope of persons who can be potentially affected by secret surveillance and there is no suitable external control to a range of interference with private life and intrusion into citizens’ homes. Secret surveillance is conducted by organs belonging to the executive power but the authorisation to conduct surveillance is also the competence of the executive (the minister) without any sufficient external, independent control and without sufficient remedy available for persons intercepted unlawfully.
Considering that practically anyone can be affected by secret surveillance in Hungary, it would have been very important to have public debate on the content of the bill. EKINT made considerable efforts to trigger debate, nevertheless, the draft bill now came out of the blue. Mandatory social consultation in theory would ensure that all those affected could respond to the draft bills issued by the ministries in reasonable time. This instrument could not work here: the ministry gave only a week for standpoints to be submitted. EKINT beat the tight deadline and submitted the following comments, arguing that the draft bill does not meet the minimum requirements set forth by the Strasbourg Court.
- EKINT asks the government to ensure public and professional debate on the draft bill which is of utmost social importance. The government should seek the opinion of experts and civil organisations and should respond to their comments in public.
- From the aspect of the constitutionality of secret information gathering it is particularly important which organ is responsible for exerting external control over surveillance. While the Strasbourg Court recommends judicial control, the draft bill assigns this task to the National Authority for Data Protection and Freedom of Information without pointing out why it chose the authority instead of the courts. EKINT asks the government to introduce judicial control, and if it refuses to do so, it shall explain why it wishes to divert from the regulation model pointed out by the Strasbourg Court.
- According to the draft bill the authority will be entitled to the ex-post review of the ministerial authorisation for secret surveillance. The ECtHR, however, held that without prior authorisation by the independent organ secret surveillance can be conducted only in emergency and in exceptional cases. EKINT, therefore, asks the government to endow the independent organ, ideally the courts, not with ex-post but with prior competences.
- To ensure ex-post remedy, the draft bill introduces a new instrument: a complaint on surveillance can be submitted to the National Authority for Data Protection and Freedom of Information. However, the instrument in its present form does not meet the requirements stipulated by the ECtHR and is not suitable to protect fundamental rights. Besides demanding judicial control, EKINT asks the government to take steps to ensure that persons affected are informed about their interception when it no longer poses a threat to national security, to provide transparent legal remedy mechanisms and to review the deadlines set for the examination of complaints.
- To ensure predictability the draft bill attempts to determine the scope of persons possibly affected by secret surveillance, to define the conditions of application and to consider the principle of necessity and proportionality. However, since these provisions leave a wide margin of appreciation and gain real meaning in the course of the application of law, EKINT is of the viewpoint that supervision by an independent judicial authority is indispensable.