European Court of Human Rights
12 January 2016
Facts
In 2011 an Anti-Terrorism Task Force (“the TEK”) was established as a branch of the Hungarian police. Under this legislation, the task force’s prerogatives in the field of secret intelligence gathering include secret house search and surveillance with recording, the opening of letters and parcels, as well as checking and recording the contents of electronic or computerised communications, all this without the consent of the persons concerned.
Complaint
The applicants complained that the legislation violated Article 8 of the Convention because it was not sufficiently detailed and precise and did not provide sufficient guarantees against abuse and arbitrariness.
Court’s ruling
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 persons”, a notion that was overly broad and could pave the way for the unlimited surveillance of many citizens. The legislation did not clarify how that notion was to be applied in practice and authorities were not required to demonstrate the actual or presumed relation between the persons concerned and the prevention of any terrorist threat.
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. For the Court, supervision by a politically responsible member of the executive did not provide the necessary guarantees.
The Court ruled that the legislation did not provide sufficiently precise, effective and comprehensive safeguards on the ordering, execution and potential redressing of surveillance measures and a violation of Article 8 was found.