a) Hungary / b) Constitutional Court / c) / d) 05-10-2005 / e) 37/2005 / f) / g) 2005/132 / h) .
Keywords of the Systematic Thesaurus:
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Effective remedy.
Fundamental Rights - Civil and political rights - Right to information.
Fundamental Rights - Civil and political rights - Right to private life - Protection of personal data.
Keywords of the alphabetical index:
Justice, transitional / Data, personal, secret services of the communist regime, employee / Data, personal, publicity, limited.
It is against the constitutional right to personal data protection to make public personal data processed by the Historical Archives of the Hungarian State Security on employees, collaborators and operative personnel who worked or were in contact with the Secret Services of the communist regime.
I. On 30 May 2005 parliament adopted the Amendment of Act III of 2003 on the Disclosure of the Secret Service Activities of the Communist Regime and on the Establishment of the Historical Archives of the Hungarian State Security (hereinafter referred to as "the Amendment"). The President of the Republic referred the adopted but not yet promulgated Amendment to the Constitutional Court for review.
He found that the purpose of Article 2.1 of the Amendment is to make public personal data processed by the Historical Archives of the Hungarian State Security on professional employees, collaborators and operative personnel who worked or were in contact with the Secret Services of the communist regime. Publication of this data would have been necessary to identify these people. The President was concerned that publication would violate the right to protection of personal data guaranteed by Article 59.1 of the Constitution. The President could not identify any constitutional purpose that would have made restriction of this fundamental right necessary and proportionate. He also argued that employees, collaborators and operative personnel played very different roles within the State Secret Services. He therefore initiated a differentiated constitutional review in relation to the groups. The President contended that the amendment does not provide for remedy prior to publication, and this violates the right to remedy guaranteed by Article 57.5 of the Constitution.
Act III of 2003 defines an employee as any person, who was in a professional service relationship with the organisations which produced the documents within the scope of this Act. Both "secret" and "strictly secret" staff members are included. "Collaborator" is defined as any person, who provided reports secretly under cover and using a false name to the above organisations or signed a declaration of being hired to this effect or was rewarded for this activity. "Operative personnel" are defined as any person described as "voluntary contact" or "occasional contact" by the organisations in question.
II. The Constitutional Court ruled that the Amendment was unconstitutional and could therefore not become effective. In its reasoning the Court relied on its earlier decision (Decision 60/1994 XII. 24), hereinafter referred to as "the precedent". Here it was emphasised that piercing the veil of the Secret Services Archives does not mean that all data processed in the archives necessarily becomes data of public interest. Whether or not someone's personal data becomes public depends on whether the person in question is still active in the political sphere. The current provisions of Act III of 2003 strike the correct balance between the right to protection of personal data and freedom of information by applying the following mechanism for a gradual increase in publicity:
- documents processed in the Archives containing no personal data can be freely perused and publicised;
- there is no need for anonymity in documents which are necessary for the identification of employees, operative personnel and collaborators who have an active public life. These can therefore be made public;
- individuals under surveillance, third parties, employees, operative personnel and collaborators can peruse and make public personal data within documentation in the Archives, with which he has an exclusive connection;
- those under surveillance may peruse, but not make public, the data necessary to identify a collaborator, operative personnel or employees with whom he has a connection;
- data can be studied or publicised which records or describes personal contacts established between the person under observation and the third party (including data gathered at personal meetings and in conversation). The consent of the person under surveillance and the third party would have to be obtained.
The Amendment casts aside this gradual approach by granting unqualified priority to the right of freedom of information. The right to protection of personal data can be limited if restriction would serve to protect the right to control over data of persons under surveillance or the requirement in the precedent that data relating to activities of public figures which are against the rule of law is considered data of public interest within the meaning of Article 61 of the Constitution. The Constitutional Court found no constitutional purpose that would have made it necessary for parliament to open all the personal data of employees, collaborators and operative personnel to the public gaze. Anonymity is not necessary for documents which are necessary for the identification of employees, operative personnel and collaborators who are active within the public domain. These can therefore be made public and somebody under surveillance may peruse but not publicise the data necessary for identifying a collaborator, an operative or an employee with whom he has a connection. The precedent requires no further publicity and so this type of unqualified publicity of personal data violates Article 59.1 of the Constitution.
The Constitutional Court considered the right of remedy. It concluded that the decision concerning the publication of personal data on the website of the Archives counts as an official decision within the meaning of Article 57.5 of the Constitution. Since the legislation failed to provide procedural guarantees as to the genuine nature of the published personal data, Article 8 of the Amendment violates Article 57.5 of the Constitution.
- Decision no. 60/1994, Bulletin 1994/3 [HUN-1994-3-019].