On January 12, in the Szabó and Vissy vs. Hungary case, the European Court of Human Rights (“ECHR”) condemned the surveillance of individuals by Hungarian authorities for anti-terrorism purposes. This ruling provides some helpful guidance on the parameters for anti-terrorist surveillance legislation at a time when various countries around the world are revising such legislation.
The case concerned the 2011 Hungarian legislation on secret anti-terrorist surveillance operations (“Legislation”). Under the Legislation, a special anti-terrorism task force has specific powers for purposes of intelligence gathering, including that it may conduct secret house searches and surveillance with recording, open letters and parcels, and check and record the contents of electronic or computerised communications – all this without the consent of the persons concerned.
The applicants, Hungarian nationals, brought a constitutional complaint alleging that the powers in respect of secret intelligence gathering for national security purposes were too wide and breached notably Article 8 of the European Convention on Human Rights (right to respect for private and family life, home and correspondence).
The ECHR Decision
Following the rejection of the complaint by the Hungarian Constitutional Court, the ECHR held that there was a violation of Article 8.
In the context of terrorism growth, the ECHR did not object to the fact that governments use advanced technologies, including mass surveillance of communications, in order to pre-empt impending incidents.
However, the ECHR considered that the Legislation did not provide the necessary guarantees against abuse or sufficiently precise, effective and comprehensive safeguards.
In particular, the ECHR criticised:
· that virtually anyone in Hungary may be subjected to covert surveillance as this does not require the authorities to demonstrate an actual or presumed relation to any terrorist threat;
· the fact that when requesting permission to intercept an individual’s communication, the anti-terrorim task force is merely required to argue that the secret intelligence gathering is necessary without having to provide evidence in support of their request;
· the fact that the Legislation does not clearly limit the duration of the surveillance;
· the lack of judicial oversight of the surveillance program – under the Legislation, covert surveillance only requires authorisation by the executive withoutan assessment of whether it is strictly necessary and without any external judicial or other control;
· the fact that affected citizens are at no point in time informed that they have been the subject of secret surveillance; and
· the lack of any effective remedy against secret surveillance measures.
Hungary has three months to request that the matter be considered by the Grand Chamber of the ECHR. If this request is not made, Hungary will have to amend its laws in order to create safeguards and oversight of its surveillance activities.
The decision of the ECHR in the Szabó and Vissy vs. Hungary case comes not long after the decision of the Court of Justice of the European Union on October 6, 2015 condemning the data transfer agreement between the United States and the European Union - “Safe Harbor” - for monitoring programs of the US government, and represents a significant step in limiting government surveillance programs.
It should also be noted that this decision follows the adoption by the French legislator of the "Surveillance Law" (law n° 2015-912 published on July 24, 2015) providing a legal framework for domestic surveillance, which itself is currently being challenged before the ECHR. It is expected that the standard set by the ECHR in the Szabó and Vissy vs. Hungary case will be applied in the upcoming case against France.