Anti-terrorist surveillance law

Written by Katrin Welker* and originally published by ECPMF.EU

On 12 January 2016, the European Court of Human Rights (ECtHR, application no. 37138/14) decided that the Hungarian anti-terrorist surveillance Law is a violation of Article 8 of the European Convention of Human Rights (ECHR). Article 8 ECHR protects the right to respect for private and family life, as well as the home and correspondence. The Court found that the Law is prone to abuse by Hungarian authorities.

On 1 January 2011, a specific anti-terrorism Task Force was established in Hungary. This Task Force has the competence to execute secret house searches, surveillance with recording devices, opening letters and parcels as well as checking and recording the contents of electronic or computerised communications. According to the Law, the consent of the persons concerned is not necessary.

In June 2012 the plaintiffs, working for a non-governmental watchdog organisation, filed a constitutional complaint arguing that these measures would breach their right to privacy according to Article 8 ECHR. The Constitutional Court of Hungary dismissed the majority of their complaints in November 2013. The plaintiffs lodged an application against that decision with the ECtHR.

The Court affirmed the violation of Article 8 ECHR for several reasons. The Law does not describe any categories of persons who may have their communications intercepted. The authorities do not need to demonstrate any relation to a terrorist threat. Therefore, the legislation directly affects all users of communication systems and all homes, according to the Court, because it is possible for any person in Hungary to be subjected to secret surveillance.

Additionally, the Law does not foresee a judicial supervision of the surveillance. The authorities only have to identify to the responsible government minister the name of the individual or the “range of persons” they are surveilling. The duration of the surveillance is unclear because of ambiguous wording of the legislation, and the Hungarian Law does not foresee a notification of the persons concerned of the surveillance and no possibility for an individual to lodge a complaint if he suspects that his communications are intercepted.

According to the Court, the Hungarian anti-terrorist surveillance Law is a violation of Article 8 ECHR due to the above mentioned reasons.

*Katrin Welker works as a scientific researcher at the Institute of European Media Law (EMR), Saarbrücken/Brüssel.