The Hungarian regulation on secret information gathering was subject of the ECtHR (Szabó and Vissy v. Hungary, no. 37138/14., 12/01/16) in which two activists of an NGO complained that they might have been subjects of secret information gathering. The decision that stipulated the infringement of Article 8 of the Convention settled essential criteria both concerning legislation and jurisdiction. The presentation first analyses the background of the case. Secondly the reasons for different argumentation of the national constitutional court and the ECtHR, thirdly how can secret information gathering be in accordance with the provisions of the Convention with special regard to the required control mechanism. The decision clarifies that counter-terrorism measures cannot entirely overrule privacy rights. Secret information gathering must be supervised by (quasi) judicial organs. As the challenges arise worldwide, all European legislators could gain useful experience from the decision.
This paper collects lessons learned from Hungary concerning security challenges. The populist rhetoric, the non-transparent functioning of the state can legally and politically legitimize governmental actions that are detrimental to democracy (referenda, billboard campaigns, popular consultations) and the rule of law (unconstitutional emergency situation), and are also potentially restrictive to fundamental rights. Rules on emergencies may be an example for others when constitutionalizing some new mechanism against, e.g. terrorism. Even though the existing rights and standards are appropriate for the handling crisis situations, Hungarian politicians highly demand and do a lot for their reinterpretation. There is no genuine legal countermeasure; opposition and civil society are forced to play within illiberal constitutionalism. Decisions of the ECtHR and the CJEU do not seem to convince the government that its attitude is not aligned with international and supranational standards.
Starting from 2015 the increased number of asylum seekers triggered a set of legislative changes in Hungary, which situated on the so-called Balkan-route has become a transit country for the asylum seekers arriving in Greece. The measures implemented by Hungary, such as the border-fence on the border with Serbia and Croatia, the introduction and constant maintenance of the ‘crisis situation’ raise critical voices from the civil society, UN agencies, EU institutions and Human Rights organizations as well. Hungary as a Member State of the EU has to comply with a set of international and supranational norms and standards. The question is that why were the existing norms inadequate to handle the increased number of asylum seekers. The legislative changes negatively affected the situation of asylum seekers in Hungary, due to the lack of procedural safeguards, judicial review and the excessive restriction of the freedom of movement pose new difficulties for the applicants.
In 2015 approximately one million asylum seekers arrived in member states of the European Union, influencing and raising constitutional questions upon human rights, unity, public security, national identity and sovereignty. The Schengen system is known for its open borders, but in the last two years, the flow of migrants has caused some member states to reintroduce temporary checks at their borders with other Schengen states. Hungary and Slovakia had launched a case challenging the quota system, as some countries did not want to solve the crisis with the compulsory quota system, as states are aware of their sovereignty, national identity and private security interests. For now, the resolution of quota system is still not clarified and raises many questions on constitutional theories, regarding either collision of human rights, or other national constitutional values and regulations that need to be examined and discussed in theoretical and practically adaptable scientific manners.