CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 janvier 2016

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HUNGARY   (Application no. 37138/14)               JUDGMENT     STRASBOURG   12 January 2016     FINAL   06/06/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Szabó and Vissy v. Hungary, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Vincent A. De Gaetano, President,   András Sajó,   Boštjan M. Zupančič,   Nona Tsotsoria,   Paulo Pinto de Albuquerque,   Krzysztof Wojtyczek,   Iulia Antoanella Motoc, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 14 April and 15 December 2015, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 37138/14) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Hungarian nationals, Mr Máté Szabó and Ms Beatrix Vissy (“the applicants”), on 13 May 2014. 2.     The applicants were represented by Mr L. Majtényi, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented Mr Z. Tallódi, Agent, Ministry of Justice. 3.     The applicants complained under Article 8 of the Convention that they could potentially be subjected to unjustified and disproportionately intrusive measures within the framework of “section 7/E (3) surveillance” (see paragraphs 10-12 below), in particular for want of judicial control. In their view, the latter issue also constituted a violation of their rights under Articles 6 and 13 of the Convention. 4.     On 12 June 2014 the application was communicated to the Government. 5.     On 27 August and 1 September 2014, respectively, Privacy International and Center for Democracy and Technology, both non ‑ governmental organisations, were granted leave to make written submissions (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicants were born in 1976 and 1986 respectively and live in Budapest. 7.     When introducing the application, the applicants were staff members of Eötvös Károly Közpolitikai Intézet , a non-governmental, “watchdog” organisation voicing criticism of the Government. The subsequent employer of one of the applicants was subjected to financial control measures by the Government in 2014, which according to the applicants verged on vexation. 8.     Act no. CXLVII of 2010 defines combating terrorism as one of the tasks of the police. Within the force, a specific Anti-Terrorism Task Force (“ TEK ”) was established as of 1 January 2011. Its competence is defined in section 7/E of Act no. XXXIV of 1994 on the Police, as amended by Act no. CCVII of 2011 (the “Police Act”). 9.     Under this legislation, TEK’s prerogatives in the field of secret intelligence gathering include secret house search and surveillance with recording, 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. 10.     The authorisation process for these activities is dependent on the actual competence exercised by TEK, namely whether it is within the framework of secret surveillance linked to the investigation of certain specific crimes enumerated in the law (section 7/E (2)) or to secret surveillance within the framework of intelligence gathering for national security (section 7/E (3)). 11.     Whereas the scenario under section 7/E (2) is as such subject to judicial authorisation, the one under section 7/E (3) is authorised by the Minister in charge of justice, (i) in order to prevent terrorist acts or in the interests of Hungary’s national security or (ii) in order to rescue Hungarian citizens from capture abroad in war zones or in the context of terrorist acts. 12.     “Section 7/E (3) surveillance” takes place under the rules of the National Security Act under the condition that the necessary intelligence cannot be obtained in any other way. Otherwise, the law does not contain any particular rules on the circumstances in which this measure can be ordered, as opposed to “section 7/E (2) surveillance”, which is conditional on the suspicion of certain serious crimes. The time-frame of “section   7/E   (3) surveillance” is 90 days, which can be prolonged for another 90-day period by the Minister; however, the latter has no right to know about the results of the ongoing surveillance when called on to decide on its prolongation. Once the surveillance is terminated, the law imposes no specific obligation on the authorities to destroy any irrelevant intelligence obtained. 13.     The applicants filed a constitutional complaint on 15 June 2012, arguing in essence that the sweeping prerogatives under section 7/E (3) infringed their constitutional right to privacy. They emphasised that the legislation on secret surveillance measures for national security purposes provided fewer safeguards for the protection of the right to privacy than the provision on secret surveillance linked to the investigation of particular crimes. They pointed out that (i) “section 7/E (2) surveillance” was always linked to a particular crime and could only be ordered for the purposes of identifying or locating suspects, whereas “section   7/E   (3) surveillance” was not linked to any particular crime; (ii) “section   7/E   (2) surveillance” was always ordered by the court, whereas “section   7/E   (3) surveillance” was authorised by the government minister in charge of justice; (iii) the decision on ordering “section   7/E   (2) surveillance” was subject to detailed reasoning, whereas no reasoning was included in the minister’s decision on ordering “section   7/E   (3) surveillance”; and (iv) under the legislation relating to “section   7/E   (2) surveillance”, all collected but irrelevant information had to be destroyed within eight days, unlike in the case of “section   7/E   (3) surveillance”. 14.     On 18 November 2013 the Constitutional Court dismissed the majority of the applicants’ complaints. In one aspect the Constitutional Court agreed with the applicants, namely, it held that the decision of the minister ordering secret intelligence gathering had to be supported by reasons. However, the Constitutional Court held in essence that the scope of national security-related tasks was much broader that the scope of the tasks related to the investigation of particular crimes. For the purpose of national security, the events of real life were examined not for their criminal law relevance; therefore they might not necessarily be linked to a particular crime. Furthermore, in the context of national security, the external control of any surveillance authorised by the minister was exercised by Parliament’s National Security Committee (which had the right to call the minister to give account both in general terms and in concrete cases) and by the Ombudsman, and that this scheme was sufficient to guarantee respect for the constitutional right to privacy of those concerned. Finally, the Constitutional Court was of the opinion that the National Security Act, which applies to “section   7/E   (3) surveillance”, contained general provisions on ex officio deletion of any data unnecessary for achieving the aim underlying the gathering of intelligence. 15.     This decision was published in the Official Gazette on 22   November 2013. II.     RELEVANT DOMESTIC LAW 16.     Act no. XXXIV of 1994 on the Police (“the Police Act”) provides as relevant: Section 1 “(2) The police – within the scope of its duties as prescribed by the Fundamental Law of Hungary, by this Act and by other laws for preventing and combating crimes, administrating and policing – ... 15. ... within the territory of Hungary ... a) tracks terrorist organisations, b) prevents, tracks and repels any attempts of individuals, groups or organisations to carry out terrorist acts and impedes the commission of any crimes by them, c) impedes the promotion of the operation of terrorist organisations by individuals, groups or organisations through providing financial or other support.” Section 7/E “(1) The anti-terrorist organ does not exercise any investigatory competence. It: a) fulfils the tasks prescribed in section 1 subsection (2) point 15, and within these tasks ... ad) – within the framework of the fight against terrorism and in order to safeguard the national security interests of Hungary – prevents, tracks and repels any attempts to carry out terrorist acts ( terrorcselekmény ) in Hungary. ... d) on the basis of the decision of the Minister responsible for policing as endorsed by the Minister responsible for foreign affairs – in line with the rules of international law – contributes to rescuing Hungarian citizens who are – outside the territory of Hungary – in distress due to an imminent and life-threatening danger of act of war, armed conflict, hostage-taking or terrorist action; to ensuring their safe return to Hungary and to carrying out their evacuation; to this end it cooperates with the Member States and the organs of the European Union, with the organs of the North Atlantic Treaty Organization, with the related international organisations and with the authorities of the concerned foreign country. e) acquires, analyses, assesses and forwards information relating to foreign countries or being of foreign origin which is required for fulfilling the task prescribed in section d) above. (2) The anti-terrorist organ may – for the purpose of fulfilling its tasks prescribed in subsection (1) point a) sub-points aa) to ac) and in point c) – perform secret intelligence gathering in line with the provisions of Chapter VII of the Act on Police. (3) The anti-terrorist organ may – for the purpose of fulfilling its tasks prescribed in subsection (1) point a) sub-point ad) and in point e) – perform secret intelligence gathering in line with the provisions of sections 53-60 of Act no. CXXV of 1995 on the National Security Services (the “Nbtv.”), in the course of which it may request and handle data according to the provisions of sections 38-52 of Nbtv. The secret intelligence gathering provided in section 56 points a)-e) of Nbtv. is subject to authorisation of the Minister responsible for justice.” The crime of “terrorist act” ( terrorcselekmény ) is defined in section 261 of the Old Criminal Code and sections 314 to 316 of the New Criminal Code. 17.     Act no. CXXV of 1995 on the National Security Services (the “National Security Act”, “Nbtv.”) contains the passages below. Under section 11(5), complaints about the activities of the anti-terrorist organ shall be investigated by the Minister of Home Affairs who shall inform the complainants of the outcome of the investigations and of the relevant measures within 30 days (this deadline may, on one occasion, be extended by another 30 days). Section 14(4) contains provisions concerning the relevant competences of the National Security Committee. In exercising parliamentary supervision, the Committee is entitled to request information from the Minister and the directors of the national security services about the country’s national security situation and the functioning and activities of the services (sub-section (a)). In individual complaint procedures, where a complainant does not accept the results of the investigation under section 11(5), the Committee may investigate complaints alleging unlawful activities on the part of the National Security Services if, under the affirmative vote of at least one third of the Committee members, the gravity of the complaint justifies an investigation. In investigating a complaint the Committee shall examine the complaint at issue and may request the Minister to submit his opinion on the case. If the Committee is of the view that the operation of the Services has been unlawful or abusive, it may request the Minister to conduct investigations and to inform the Committee of the results of the investigations or may itself carry out fact-finding investigations if it has the impression that the operation of the Services is contrary to the relevant laws. In carrying out the fact-finding investigations, the Committee may inspect the relevant documents in the records of the National Security Services and may hear staff members of the National Security Services. Relying on the findings the Committee may invite the Minister to take the necessary actions. Section 43 “The National Security Services may use data having come to their knowledge exclusively for the purpose that corresponds to the legal basis for ordering their acquisition, except a) if the data are indicative of the commission of a criminal act and forwarding the data is legally allowed, or b) if they substantiate an obligation to inform another National Security Service and the party receiving the data is itself authorised to obtain them.” Section 44 “(1) For the purpose of fulfilling their tasks the National Security Services may request data from each other and are obliged to provide data to each other in line with the provisions of this Act. (4) The bodies requesting data disclosure shall be responsible for the management of data disclosed to them according to the provisions of this Act and the data management legislation; they shall register the data they receive and their utilisation and, upon request, they shall inform the National Security Service thereof.” Section 45 “(1) The National Security Services may, under an international obligation, transfer personal data to foreign data processing authorities within the framework of laws on protection of personal data.” Section 50 “(2) Personal data processed by the National Security Services shall be deleted immediately if a) the deadline specified in subsection (1) has expired; b) deletion was ordered by a court in data protection proceedings; c) processing of the data is unlawful; d) the conditions specified in section 60 (2) are met; e) processing of the data became manifestly unnecessary.” Section 53 “(2) The National Security Services may apply the special means and methods of secret intelligence gathering only if the intelligence needed for the performance of the tasks laid down in the present Act cannot be obtained in any other way.” Section 56 “The National Security Services may, under an external permission a) search a dwelling secretly and record by means of technical equipment what they perceive; b) keep a dwelling under surveillance by means of technical equipment and record what they perceive; c) open and check postal mail and any closed parcel belonging to an identifiable person and record their contents by means of technical equipment; d) detect the content of communications transmitted by electronic communications network and record it by means of technical equipment; e) detect the data transmitted by or contained on a computer or network, record it by means of technical equipment and use it.” Section 57 “(1) The motion to obtain permission for secret intelligence gathering as specified in section 56 may be submitted by director generals of the Information Authority, the Constitution Protection Authority, the Military National Security Service and – in order to carry out its task specified in section 8 (1) f) above – the Special Service for National Security. (2) The motion shall contain: a) the premises of the secret intelligence gathering, the person(s) concerned identified by name or as a range of persons, and/or any other information capable of identifying such person or persons; b) specification of the secret intelligence gathering and reasoning substantiating its necessity; c) the date of the beginning and the end of the activity; d) in the case of a motion to obtain permission specified in section 59 below, reasoning why the requested intelligence is absolutely necessary in the specific case for the successful functioning of the National Security Service.” Section 58 “(3) The ... Minister in charge of justice ... decides [on the motion] within 72 hours to be counted from the motion’s submission ... [he] grants permission or, in case of an ill-founded request, rejects it. No appeal lies against the decision. (4) Unless this law stipulates otherwise, the authoriser allows the secret intelligence gathering for a period of a maximum of 90 days upon each request. In justified cases and upon a motion from the director generals, this time limit may be extended by 90 days, unless this law stipulates otherwise. (6) The authoriser does not inform the person concerned about the proceedings or about the occurrence of secret intelligence gathering.” Section 59 “(1) The directors of the National Security Services themselves may [exceptionally] authorise the secret gathering of information within the meaning of section 56 at the latest until the decision given [by the Minister] if the external authorisation procedure entails such delay as obviously countering, in the given circumstances, the interests of the successful functioning of the National Security Service.” Section 60 “(1) Secret intelligence gathering based on external permission shall be discontinued immediately if a) it achieved its aim defined in the permission; b) its continuation does not promise any results; c) its time-limit has been expired without extension; d) the secret intelligence gathering is unlawful for any reasons whatsoever. (2) In the framework of the special procedure defined in section 59 (1), secret intelligence gathering shall also be discontinued immediately if the authoriser does not permit its continuation. In that case, the data obtained by secret intelligence gathering shall be destroyed immediately, according to the laws regulating the deletion of qualified data.” Section 74(a) defines the notion of national security interests in the following terms: “Securing the sovereignty and protecting the constitutional order of Hungary and, within that framework, aa) obtaining intelligence on aggressive efforts targeted against the independence and territorial integrity of the country, ab) obtaining intelligence on and combating covert efforts violating or threatening the political, economic or defence interests of the country, ac) obtaining information of foreign relevance or origin required for government decisions, ad) obtaining intelligence on and combating covert efforts aimed at altering or disturbing by unlawful means the country’s constitutional order guaranteeing respect for fundamental human rights, pluralist representational democracy, the constitutional institutions and ae) obtaining intelligence on and combating acts of terrorism, illegal arms and drugs trafficking, and illegal trafficking in internationally controlled products and technologies;” 18.     Act no. CXI of 2011 on the Commissioner for Fundamental Rights (“Ajbt.”) provides as follows: Under section 18 (1) f), law enforcement organs – including the anti ‑ terrorist organ – are authorities subject to investigation by the Ombudsman. There is only one limitation on the investigations conducted by the Ombudsman: the report drafted on the secret intelligence activities of organs authorised for using secret intelligence devices shall not contain data from which the conclusion can be drawn that in the given case secret intelligence activities were or have been carried out by the organ [cf. section 28(3)]. The Commissioner for Fundamental Rights shall annually submit a report to Parliament about the investigated cases and may – except for proposals for amendments – request Parliament to investigate any given case. Where the finding of an abuse or maladministration affects classified data, the Commissioner for Fundamental Rights shall – simultaneously with the annual report or, if the abuse or maladministration is very grave or affects a great number of natural persons, before the submission of the annual report – submit the case to the competent parliamentary committee in a report classified according to the Act on the Protection of Classified Data. The applicants submitted a statement obtained from the Commissioner’s Office on 9 July 2014, according to which the Commissioner had never enquired into the field of secret surveillance measures. 19.     Act no. CLI of 2011 on the Constitutional Court provides as follows: Section 26 (1) “Persons or organisations affected by a particular case may, under Article 24 (2) c) of the Fundamental Law, submit a constitutional complaint to the Constitutional Court where due to the application in the related court proceedings of a piece of legislation contravening the Fundamental Law, a) their rights enshrined in the Fundamental Law have been violated, and b) legal remedies have been exhausted or no remedy exists. (2) By way of derogation from subsection (1), such Constitutional Court proceedings may, exceptionally, also be initiated where a) the injury originated directly from the application or becoming effective of a provision contravening the Fundamental Law, without a court decision, and b) no procedure to redress the injury is available or the available remedies have already been exhausted by the complainant. ...” Section 27 “Against a judicial decision contravening the Fundamental Law within the meaning of Article 24 (2) d.) of the Fundamental Law, a person or organisation affected by the particular case may file a constitutional complaint with the Constitutional Court where the decision on the merits of the case or another decision terminating the judicial proceedings a) has violated the complainant’s rights enshrined in the Fundamental Law, and b) the complainant has already exhausted the legal remedies or no legal remedy exists.” 20.     Decision no. 32/2013. (XI.22.) AB of the Constitutional Court establishing the constitutional requirement to be met in respect of section   58   (3) of Nbtv. and rejecting the related constitutional complaint contains the following passages: “... 1. The Constitutional Court finds that ... in order to make the external control effective, the decision of the Minister responsible for justice ... authorising secret intelligence gathering must be supplied with reasons. ... [42] 1.1. The regulations in force specify two types of secret intelligence gathering: secret surveillance linked to the investigation of particular crimes and secret surveillance not linked to the investigation of particular crimes. ... [47] 1.2. Secret surveillance not linked to the investigation of particular crimes is either not subject to external authorisation [sections 54-55 of Nbtv.] or is subject to external authorisation [sections 54-55 of Nbtv.] In cases specified in the Act authorisation means authorisation by a judge or by the Minister of Justice. [48] According to the reasoning of Nbtv., from international practice several examples can be mentioned for States making a distinction between intelligence gathering linked to the investigation of particular crimes (including the closely related fields of crime prevention and crime detection) and intelligence gathering carried out for national security purposes. [49] On the basis of this principle, a system of divided authorisation has been adopted in the Act. For the purpose of detecting actual criminal offences, secret intelligence gathering is authorised – similarly to the solution applied in the Act on the Police – by a judge designated for the task by the President of the Budapest High Court, whereas section 56 activities carried out in the course of general intelligence gathering shall be authorised by the Minister of Justice. ... [51] Section 53 (2) of Nbtv., according to which secret intelligence gathering may only be carried out if the data required to perform the statutory tasks cannot be obtained in any other manner, shall apply to both cases. ... [62] Under section 14 (4) of Nbtv. Parliament’s National Security Committee shall exercise control over the authorisation process of the Minister of Justice. ... [69] 2. Secret intelligence gathering governed by Nbtv and not linked to the investigation of particular crimes ... has not been examined by the Constitutional Court yet. However, in its decision no. 2/2007. (I. 24.) AB (henceforth: Abh.1.) the Constitutional Court specified the general aspects under which secret intelligence gathering and secret surveillance are acceptable in a democratic, rule-of-law State. [70] Since the content of Article B) (1) of the Fundamental Law is identical to the content of Article 2 (1) of the former Constitution, and since from the rules of interpretation applicable to the Fundamental Law no conclusion contrary to the above opinion of the Constitutional Court can be inferred, the statements of principle made on the necessity and proportionality of secret intelligence gathering can be maintained. [71] The Constitutional Court has also taken into consideration the Strasbourg Court’s jurisprudence, as recalled in its former decisions. Cases related to “covert investigations” were examined by the Court in light of the Convention provisions set forth in Article 8 which protects the right to respect for private life. In its judgments the Court held that in a democratic society the rights enshrined under Article 8 § 1 can only be restricted within the limits specified in paragraph 2, that is only for the purposes specified in that provision and only in case the necessity of the restriction is justified. [72] Lawfulness under the Court’s case law does not merely require that a given restriction be specified under the law. The phrase “in accordance with the law” requires that the regulation itself should meet the rule-of-law principles. Since secret intelligence gathering does, per definition, exclude the possibility of an effective remedy, it is imperative that the process authorising such information gathering should contain sufficient guarantees for the protection of the rights of the individuals. Therefore, the use of secret intelligence gathering must be subject to a three-stage control: when the interference is ordered, while the interference is carried out and when the interference is terminated. Control must be exercised by “bodies” independent of the executive power. First of all, only constant, continuous and mandatory control can guarantee that in a given case the requirement of proportionality is not violated .... [73] In its judgments the Court laid down the minimum requirements to be met by a legal regulation on the use of secret intelligence devices. The Court emphasised that since the interference with the fundamental rights is secret and since the use of such devices provides “unpredictable” opportunities for the executive power, it is indispensable that the procedures themselves provide sufficient guarantees for the observance of the rights of the individuals. Therefore States must create precise and detailed rules that can be abided by and accessed by the citizens. From the legal regulation the competence of the authority applying such devices, the essence of the measures and the manner of their practice should be clear and apparent. As to the requirement of the clarity of rules the Court also pointed out that the laws should specify the cases and circumstances which warrant such interference and the conditions of the interference. As a minimum guarantee the laws should determine the criteria based on which the scope of persons potentially affected can be determined and should contain provisions regulating the documentation of the use of secret intelligence devices and specifying the rules applicable to the protection and destruction of the documentation. As to decision-making on the application of secret intelligence devices, an excessively wide margin of appreciation may not be granted for the authorities (e.g. Valenzuela Contreras v. Spain (58/1997/842/1048)). As to the application of secret intelligence devices, the requirement that access to the information by outside persons should be restricted serves as an additional guarantee (e.g. Kopp v. Switzerland (13/1997/797/1000) 25 March 1998). [74] Use for a particular purpose means that secret intelligence devices may only be used for reasons specified in Article 8 § 2 .... Compliance with the necessity test is closely linked to this issue. It is a basic requirement that any interference should be justified by pressing public interest and should be proportionate both to the danger needed to be countered and to the injury caused. [75] An examination of these issues should not be confined to scrutinising whether the statutory conditions laid down for the restriction meet the necessity-proportionality test but should also extend to examining the necessity of the use of secret intelligence devices in the particular case. As to the requirement of necessity it is of paramount importance that any use should only take place in case of “aggravated” (serious) threat and only in case the traditional investigative means and devices prove to be inefficient in the particular circumstances of a case; moreover, any use of the secret intelligence devices should take place according to a strict procedure that can be known in advance ... [76] From the Convention and the relevant case law of the Court the Constitutional Court has concluded that national security, public security and the prosecution of crime are interests for which even covert investigations – which amount to serious law-restricting devices – can be used where the above specified criteria are met. [77] 3. The Constitutional Court has examined the contested provision within the confines of the complainants’ complaint. The complainants challenged the anti-terrorist organ’s secret intelligence gathering activities carried out for purposes other than prosecuting crime. They alleged non-compliance with the Fundamental Law of the contested provision by alleging that the provision at issue allowed for the anti-terrorist organ’s secret intelligence gathering under Nbtv. – while Nbtv. contained no guarantees for the observance of the fundamental rights at issue. [78] The complainants did not make a distinction between the various stages of the secret intelligence gathering (ordering, carrying out and terminating the interference) but picked out some elements of the application [of this measure] and complained about those elements. As to the ordering of the interference they complained that the permission of the Minister responsible for justice did not constitute a sufficient guarantee, in particular in view of the fact that the grounds on which the request for authorisation can be made are not exhaustively enumerated. The complainants are of the view that following the termination of the interference the fate of the information irrelevant for the purposes of the surveillance and the fate of the data related to persons not concerned in the case is not settled. ... [80] Therefore, within the confines of the complaint the Constitutional Court must examine whether the authorisation by the Minister responsible for justice of secret intelligence gathering for the anti-terrorist organ and the handling of data following the termination of the interference does or does not violate the fundamental rights invoked, namely the right to privacy and the right to informational autonomy.... [92] 3.2. The Constitutional Court has first examined the constitutionality of the authorisation by the Minister responsible for justice. The first phase of secret surveillance is the ordering of the interference. Since in applying section 7/E (3) of the Act on the Police (henceforth: Rtv.) the Minister responsible for justice gives – by authorising the use of the secret intelligence gathering devices and methods listed in section 56 a)-e) of Nbtv. – consent to a State interference which seriously violates fundamental rights, the process of interference must be regulated under the law, the prescribed norms must be clear, and the process must be subject to external control mechanisms. ... [94] ... The contested provision of Rtv. authorises the anti-terrorist organ to carry out, in performing certain of its tasks, secret intelligence gathering under the Nbtv. The Rtv. clearly specifies the two tasks for the performance of which secret surveillance under the Nbtv. may be carried out: namely, the performance of the tasks specified in section 7/E (1) a) and ad) and in section 7/E (1) e). [95] The task specified under section 7/E (1) a) (subsection (ad)) to be performed in the framework of combating terrorism is the prevention, detection and suppression of endeavours to commit an act of terrorism in the territory of Hungary with a view to promoting Hungary’s national security interests. Item e) refers back to item d) which allows for the obtaining, analysing, assessing and forwarding of information on a foreign State or originating in a foreign State in so far as the information is necessary for the performance of the task specified there. The tasks specified under item d) are participation in the rescue, return to Hungary and evacuation of Hungarian nationals who have got into trouble due to acts of war or armed conflicts outside the territory of Hungary imminently threatening the lives and limbs of Hungarian nationals or due to terrorist acts or hostage-taking acts, as well as cooperation for such purposes with the member States and institutions of the European Union, the organs of the North Atlantic Treaty Organization, the international organisations concerned by the case and the authorities of the foreign State at issue. These tasks shall be carried out upon a decision to that effect taken by the Minister responsible for law enforcement in agreement with the Minister responsible for foreign affairs. [96] Section 7/E (3) of Rtv., contested by the complainants, refers to Nbtv. and repeats the Nbtv. rules on secret intelligence gathering (sections 53-60) and the handling of the acquired data [sections 38-52]. Section 7/E (3) of Rtv. provides for the application, mutatis mutandis , of the Nbtv. provisions both to the investigation of a complaint about an activity of the anti-terrorist organ, and to the parliamentary control of the anti-terrorist organ and to the investigation of a report alleging unlawful operation on the part of the anti-terrorist organ [section 11 (5), section 14 (1)-(2) and (4) a)-f) and (5), section 15 (3), section 16, section 18 and section 27 (4) of Nbtv.] Moreover, the contested provision clearly provides that the Minister responsible for justice shall be entitled to authorise the use, within the scope of the statutory tasks, of the secret intelligence devices enumerated in an exhaustive list. Therefore section 7/E   (3) of Rtv. meets the requirement of being prescribed by law and the requirement of clarity of norms, as it sufficiently specifies the conditions of ordering and the circumstances of executing the measure regulated in the Act. [97] Thereafter the Constitutional Court has proceeded to examine whether in the given case the authorisation of secret intelligence gathering by the Minister responsible for justice provided sufficient guarantees for the observance of the fundamental rights of the individuals. ... [102] Secret intelligence gathering for the purposes of national security may only take place under Section 7/E (1) a) ad) or e) of Rtv., that is in order to combat endeavours to commit an act of terrorism in the territory of Hungary and in relation to the protection of Hungarian nationals have got into trouble in a foreign country. ... [105] The scope of national security-related tasks is much broader than the scope of the tasks related to the investigation of particular crimes as for the purposes of national security the events of real life are examined not for their criminal law relevance, and those events do not necessarily entail legal consequences. Identifying and combating endeavours aimed at committing acts having relevance from the aspects of securing the sovereignty of the State and of protecting the lawful order of the State may fall outside the sphere of particular criminal offences. Therefore national security-related tasks are not comparable to secret intelligence gathering linked to investigating a crime, which is carried out under section 69 of Rtv. and is subject to authorisation by a court. The prevention and elimination of risks to national security require political decisions, therefore decisions of this type fall in the competence of the executive power. This consideration justifies that general character secret intelligence gathering should be authorised by the Minister responsible for justice. [106] However, in granting the authorisation the Minister responsible for justice must weigh the interests of national security against the injury done to the fundamental rights. Therefore in addition to assessing the national security interests of the country from a political (home and foreign affairs) aspect, the person granting the authorisation should also strike a fair balance between the interests of national security and fundamental rights. In doing so, it must start from the principle that secret intelligence methods for national security purposes may only be used even by the anti-terrorist organ as a last resort means of detection. Section 53 (2) of Nbtv. clearly provides for the ultima ratio nature of secret intelligence methods: the special devices and methods of secret intelligence gathering can only be used where the data needed for the completion of a prescribed task cannot be obtained in any other way, namely by the traditional means of detection. This provision of Nbtv. is intended to serve as a legal guarantee similar to that which the specification in the law of the acts amounting to criminal offences constitutes in the context of secret intelligence gathering linked to the investigation of a particular crime and carried out upon the suspicion of an offence. [107] ... The request for authorisation must be supported with reasons. The ... grantor of the authorisation shall base his decision on the content of the request: the request shall be granted or, in case of ill-foundedness, rejected. Hence, in case the requesting authority cannot sufficiently justify that the data required for performing its tasks cannot be acquired in any other manner no authorisation for the use of intelligence devices and methods shall be given. ... [114] As to the ordering and carrying out of the secret intelligence gathering external control is a fundamental guarantee. Control over the activities performed by the anti-terrorist organ under the rules of Nbtv. is exercised by the National Security Committee (henceforth: Committee) of the Parliament ... Upon the Committee’s request the Minister of Justice shall provide information on the nature of the authorised information gathering and on the type of the case (section 14(4) b) Nbtv.). [115] The Committee may acquire information about irregularities related to the operation of the Services (anti-terrorist organ) from, among others, its own inquiries, from citizen complaints or from information from the staff members of the Services. ... [119] Nbtv. sets one single bar to the Committee’s control: the Committee may not learn of information which might endanger the prime importance national security interests in protecting the methods and sources (participating persons) relied on in the case at issue (section 16(1) of Nbtv.) . [120] The operation of the National Security Services and of the anti-terrorist organ and of the Minister of justice’s authorising activity can be controlled, in addition to the Parliament, by the Parliamentary Commissioner for Fundamental Rights as well. [121] Under section 18 (1) f) of Act no. CXI of 2011 on the Parliamentary Commissioner for Fundamental Rights (henceforth: Ajbt.) law enforcement organs, including the anti-terrorist organ, are authorities that can be examined by the Ombudsman. ... Hence no obstacle exists to an examination by the Ombudsman, the only bar being that – similarly to the control by Parliament – the report made on the examination of the secret intelligence activities of the authorities authorised for using secret intelligence devices and methods may not contain data from which the secret intelligence gathering activities carried out by the organ in the case at issue can be inferred (section 28(3)). The Commissioner for Fundamental Rights may present, in case the conditions specified under section 38 of Ajbt. are met, the cases examined by him to Parliament in an annual report and may, with the exception of motions for amendments, request Parliament to examine a case. ... [122] On the basis of the above information the Constitutional Court has concluded that Nbtv. allows for the control of the authorisation granting of the Minister of Justice by bodies independent of the executive power. ... [124] 3.3 In examining the reference in section 7/E (3) of Rtv. the Constitutional Court has observed that section 58 (3) of Nbtv. does not expressly provide for a reasoned decision ... [127] A necessary element of any judicial decision to be taken on secret intelligence gathering under the Rtv. is an examination of the compliance of the request for authorisation with the statutory requirements. ... [128] [...] The reference in section 7/E (3) of Rtv. also requires authorisation from the Minister of Justice for national security-related secret intelligence gathering carried out by the anti-terrorist organ, which is part of the Police Service, in order to combat endeavours to commit an act of terrorism in the territory of Hungary or in relation to the protection of Hungarian nationals who have got into trouble in a foreign country. ... [130] Since Nbtv. does not expressly require the Minister of Justice to issue a reasoned decision, the authoriser is under no obligation to provide reasoning. In the absence of reasoning, however, no posterior understanding, analysis or review of the aspects and reasons giving rise to the decision in a particular case is possible for those who exercise external control. [131] Though section 58 (3) of Nbtv. prescribes that the authorisation grantor shall base his decision on the content of the request, this content is, per definition, one-sided since in arguing for the necessity of the secret information gathering the request will solely invoke national security interests. The authorisation grantor must strike a fair balance between the interests of national security and fundamental rights enshrined under Article VI (1)-(2) of the Fundamental Law for persons affected by secret intelligence gathering and must ensure, in addition to determining the necessity of the restriction, that the restriction is proportionate. ... [132] Given that the special nature of secret surveillance excludes the possibility of a remedy, a restriction of the right to privacy and of the right to informational autonomy that is proportionate to the protection of national security will require effective external control already in granting the authorisation for the use of the secret intelligence devices. [133] The National Security Committee and the Commissioner for Fundamental Rights may only constitute effective external control over the authorisation activity of the Minister of Justice if the Minister’s decision authorising the secret surveillance contains sufficiently detailed reasons. The reasons should be of a depth and detail that enable those who exercise the external control to review the balance struck between the interests of national security and the fundamental rights at issue. [134] Upon the authorisation granted in section 46 (3) of Abtv., in order to ensure effective external control, the Constitutional Court has laid down as a constitutional requirement ensuring compliance with Article VI (1)-(2) of the Fundamental Law that in applying section 58 (3) of Nbtv. the decision of the Minister responsible for justice ordering secret intelligence gathering must be supported by reasons. [135] 3.4. Thereafter the Constitutional Court has examined whether the data handling by the anti-terrorist organ following the termination of the secret intelligence gathering violates the right to informational autonomy. The complainants complained that Nbtv., contrary to Rtv., fails to provide for the deletion of such recorded information which is irrelevant for the purposes of the surveillance and of data which are related to persons not concerned by the case. ... [138] Based on the above considerations the Constitutional Court has established that though Nbtv., contrary to section 73 (3) of Rtv., does not expressly provide for the deletion of such recorded information which is irrelevant for the purposes of the surveillance and of data which are related to persons not concerned by the case, from the joint interpretation of the phrase “obviously unnecessary” in section 50 (2) e) and of section   43 of Nbtv. it clearly follows that any data unnecessary for achieving the aim serving as a legal ground for the data acquisition, in particular the data related to persons not concerned by the case, must be deleted ex officio . Therefore the above regulation meets the principle of being purpose-bound and is suitable to prevent storing data acquisition. Moreover, Nbtv. allows for the concerned persons to file a request for the deletion of their personal data, which request can only be rejected by the Chief Director on specific grounds. External control exists over the data processing as well, since the reasons for the rej