CEDH · CASELAW;COMMUNICATEDCASES;ENG — 10 juillet 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .sCF71F55 { width:100%; border-collapse:collapse } .s1836E801 { width:7.78%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .s888D4C12 { width:24.96%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sDA068C08 { width:19.32%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s1282E693 { width:23.14%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s7A79B75C { width:24.8%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s4D0F3EF2 { width:7.78%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s242EF83 { width:24.96%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s3DE4A319 { width:19.32%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sD1108BB8 { width:23.14%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sB871DC3C { width:24.8%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s32563E28 { margin-top:0pt; margin-bottom:0pt } Published on 26 August 2024   FIRST SECTION Application no. 38303/23 B.A. and Others against Hungary lodged on 12 October 2023 communicated on 10 July 2024 SUBJECT MATTER OF THE CASE The application concerns the “integrity testing” ( megbízhatósági vizsgálat ) under Act no. XXXIV of 1994 on the Police (“the Police Act”). Integrity testing was introduced in Hungary in 2011 to combat corruption and to effectively monitor the fulfilment of professional obligations established by law, work contract or collective agreement. The procedure is governed by Sections 7-7/D of the Police Act. It can be carried out by the National Protective Service (NPS), the internal body of the police responsible for crime prevention and crime investigation. During the integrity testing, the NPS artificially creates life situations that occur or may be assumed to occur in the course of performing the job in question. It is entitled to use certain forms of secret information gathering which do not require judicial authorisation, such as secret observation of a person, a dwelling, other premises, a public place or a place open for the public, and a vehicle. It can collect information about what has happened and might record it by technical means. The NPS can also obtain information necessary to establish the fact of communication by electronic devices or to identify or locate such devices, without having access to the content of the communications concerned. No disciplinary or regulatory offence proceedings can be brought on the basis of any unlawful conduct discovered during the procedure. Originally, the measure was targeted primarily at certain law enforcement agencies. Amendments to the Police Act adopted in 2020 and 2022 extended the personal scope of integrity testing to, among others, all employees of public institutions ( költségvetési szervek ) managed or supervised by the Minister of the Interior. The applicants were employed at different public institutions managed by the Ministry of Interior when these amendments came into force. The first applicant worked as an expert at the Educational Authority, while the second and third applicants worked as an adoption counsellor and a child protection guardian in a child protection centre in Budapest. The applicants requested the Constitutional Court to quash the provisions of the Police Act which extended the scope of the integrity test to their situation. They argued that the possibility of secret surveillance through the integrity test violated their right to respect for private and family life. The Constitutional Court rejected the complaint on 6 June 2023 which decision was served on the applicants on 12   June 2023. It found that the interference complained of served the legitimate aim of guaranteeing the right to a fair procedure by public authorities and ensuring the purity in public life and that the tools of integrity testing – the creation of artificial life situations and covert surveillance – were the only means of achieving these goals. As to the proportionality of the measure, it essentially held that the State enjoys a large degree of freedom in determining the content of the employment relationship, having regard to the public tasks carried out by the employees, and may therefore impose additional requirements on them to ensure that the public tasks are performed lawfully and impartially. It also took into account the fact that the employees have the freedom of choice when their employment relationship is established or maintained. The applicants complain under Article 8 of the Convention that the possibility of being subjected to secret surveillance during integrity testing constitutes an unnecessary and disproportionate interference with their right to respect for private and family life. They argue in particular that integrity testing by the police is an inappropriate tool of exposing breaches of professional obligations and it indiscriminately applies to a disproportionately broad range of government employees, regardless of the potential for corruption or unprofessional conduct. QUESTIONS TO THE PARTIES 1.     Can the applicants claim to be potential victims for the purposes of Article 34 (see Szabó and Vissy v. Hungary , no. 37138/14, §§ 32-38, 12   January 2016)?   2.     Has there been an interference with the applicants’ right to respect for private and family life, home or correspondence, within the meaning of Article   8 §   1 of the Convention? If so, was that interference in accordance with the law and necessary in a democratic society to protect a legitimate aim, as required by Article 8 §   2 of the Convention?       APPENDIX (anonymity has been granted) Application no. 38303/23 No. Applicant’s Name Year of birth Nationality Place of residence 1. B.A.   Hungarian   2. Erzsébet LALUSKA 1975 Hungarian Szarvas 3. Julianna FEDORKÓ 1964 Hungarian Budapest