The Protection of “the Untouchable Space of the Private Sphere” during Secret Intelligence Gathering

Abstract

My lecture focuses on the analysis of the Decision No. 32/2013 (XI. 22.) AB of the Constitutional Court, which first interpreted the right to a private sphere, following the entering into force of the Fundamental Law of Hungary. The Fundamental Law of Hungary acknowledges the inviolable nature of human
dignity in Art. II, and it includes the right to private life in Art. VI para. (1), while in Art. VI para. (3), the right to the protection of personal data. In the decision above, the Constitutional Court has delineated the components of private sphere depending on the degree of protection that they enjoy. For the first time it used the notion of “the untouchable space of the private sphere” to determine the human dignity core of the right to a private sphere. The “untouchable space of the private sphere” constitutes the essence of the right to a private sphere, which ensures the absolute protection of the inner or intimate sphere. The Court has established that performing secret intelligence gathering results in an intervention in any segment of a private sphere, even the intimate one, and it may affect a large number of citizens. Since secret intelligence gathering violates the right to a private sphere, it is imperative that the process authorising such information gathering should contain sufficient guarantees for the protection of the right to a private sphere, especially an intimate sphere.
According to this decision, the constitutional requirement was met and the Court rejected the related constitutional complaint. However, in the case of Szabó and Vissy v. Hungary, the European Court of Human Rights has established that there has been a violation of Art. 8 of the European Convention of Human Rights, which guarantees the right to respect for private and family life. For the reason mentioned above, it is essential to examine the content of the “untouchable space of the private sphere”.