Commentary

What is worse? That surveillance happened – or that it is legal?

Brace yourselves for the Hungarian government repeating on every channel that nothing illegal has happened.

Not because they have not spied on journalists – but because it is legal in Hungary.

“This has to be verified — but if it is the case, it is completely unacceptable,” said Commission President Ursula von der Leyen about surveillance of journalists by the infamous Pegasus spyware.

But what is worse?

That it had happened – or that it has been made completely legal in Hungary a long time ago?

The press is just catching up with the fact, but it has been the case since 2011. The interior minister said so himself as early as 2016: There is no one in Hungary who can not be placed under surveillance legally. But the law he was referring to has come into effect as early as 2011. (More about it here.)

So it has been known. Indeed, there was a court ruling by the European Court of Human Rights that the law that makes total surveillance of anyone in Hungary legal without cause, suspicion or court permission is in breach of the European Convention of Human Rights.

“On January 2016, the European Court of Human Rights (ECHR) delivered a judgment in the case of Szabo and Vissy v. Hungary. The ECHR held that broad secret surveillance activities that had been conducted by the Hungarian Anti-Terrorism Task Force, which was established within the police force on the basis of the 2011 anti-terrorism legislation, had violated the rights of the applicants. The grounds for the decision included Hungary’s failure to provide judicial oversight over Task Force actions and other sufficiently precise and effective safeguards. (Case of Szabó and Vissy v. Hungary (Application no. 37138/14) (Jan. 12, 2016), HUDOC.)”

But Orbán is not in the habit of taking court rulings to heart. This one has been ignored alongside many others.

Please note that the ruling is specific to the surveillance powers of TEK (referred to as the Hungarian Anti-Terrorism Task Force) and not any other organization. So whenever you hear a minister saying that his/her intelligence organizations specifically didn’t do such a thing, it is probably technically true – but also meaningless as long as the organization they are referring to is not this one.

TEK has been set up as early as 2011. It has been a menacing development but of course it was impossible to really alert the public opinion. Especially since the international public opinion was not open to complaints about Orbán at that point.

The creation of this organization was bound to explode in our face, and it has arguably not happened yet, but this particular surveillance scandal appears to be right up their alley. And as the pressure on Orbán grows, tools that he had built into the legal system to secure his power and his access to public wealth are activated. Just think about the hundreds of billions siphoned out of the public purse and into entities that are out out of the reach of any future government. Total surveillance is also one such legal tool.

So the question remains: Why is carving unlimited surveillance into law OK – but actually carrying it out an outrage?

Or maybe the EU only gets upset when unacceptable laws are eventually applied? Or only when it is made public? Or only when they want to punish Orbán?

The issue of the European law’s primacy might be up next – just look at Poland leading the way.

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