a) Hungary / b) Constitutional Court / c) / d) 19-07-2013 / e) 19/2013 / f) On the suspension of the entry into force of certain provisions of the Act on National Security Services / g) Magyar Közlöny (Official Gazette), 2013/124 / h) .
Keywords of the Systematic Thesaurus:
Fundamental Rights - Civil and political rights - Right to private life.
Keywords of the alphabetical index:
Security legislation / Surveillance, continuous.
Parts of an amended Act on the rules of national security surveillance which introduced continuous surveillance were likely to be in breach of the Fundamental Law and were suspended on a temporary basis due to insufficient time for thorough constitutional review prior to their scheduled entry into force.
I. The Commissioner for Fundamental Rights turned to the Constitutional Court on 24 June 2013, seeking a constitutional review of the amendment which, if enforced, would allowed constant surveillance of targets by national security agencies and secret information collection for thirty-day periods twice a year.
The amendments on national security surveillance in the Act on National Security Services were passed on 21 May 2013. They would allow national security checks to be carried out not only prior to the occurrence of the legal relationship, but continuously after it as well. There would be no need for new cause or suspicion for repetition of the screening. According to the law-maker, the amendments were triggered by a corruption scandal involving high-ranking police officers and were aimed at removing opportunities for «graft by legal means», eliminating a five-year gap between the initial vetting procedure and a subsequent check.
The Commissioner contended that the mere fact that the person concerned has already undergone a national surveillance cannot be a sufficient reason for the use of intelligence tools for a relatively long-term period. The Commissioner also raised concerns over lack of external control over the planned surveillance and the fact that agencies would not be required to provide a concrete reason or aim for the monitoring activity, which would give the state an unfair power advantage over the individuals targeted in the surveillance.
Under the amendment, a ministerial decree and, in case of non-governmental agencies, the employer (with the consent of the minister in charge of the security services) would define the list of legal relations which require screening. The Commissioner argued that the amendment did not impose objective criteria on the ministerial decree and the employer’s measures and so the scope of those who fell under national security screening could be raised disproportionately. The Commissioner contended that, in line with international standards, the persons concerned must have the opportunity for recourse to the court or other legal bodies, if they considered their rights were ignored or violated without reason during the national security control.
II. The Constitutional Court decided on the suspension of the entry into force of certain provisions of the Act on National Security Services on 15 July 2013. The provisions in question allow those who fall under national security surveillance to be controlled during the whole time of their legal relationship. Secret information-gathering against them may be instigated twice a year for thirty days.
The Constitutional Court began to examine the petition but adjudication of the petition on its merits was not possible before the Act entered into force on 1 August 2013. According to the Act on the Constitutional Court, the Court may decide on temporary suspension of the entry into force of a legal regulation which has been enacted but has yet to enter into force – if it considers the regulation may be contrary to the Fundamental Law and if suspension would result in the avoidance of serious and irreparable damage or disadvantage, or the protection of the Fundamental Law or legal certainty.
The Constitutional Court found that the regulations in question posed a serious restriction on the right to inviolability of private life and were likely to be in breach of Article VI.1 of the Fundamental Law. It suspended their entry into force.