The Challenges of Dogmatically Distinguishing Between Preventive and Repressive Covert Information Gathering in Hungarian Legal Practice

Abstract

Introduction: The fundamental dilemma facing democratic states governed by the rule of law is striking a balance between freedom and security. In Hungary, the regulation of secret information gathering is based on a multi-pillar model: a regulatory system for law enforcement, national security, and policing. This structural fragmentation, especially in light of modern technological developments (e.g., Pegasus spyware), creates legal loopholes and a guarantee deficit, creating a gray area where the scope of the models overlaps.

Objectives: The aim of the study is to analyze the Hungarian model of covert information gathering, to explore the internal logic of the separation of the individual pillars (law enforcement, national security, and policing), and to demonstrate that the exemption of information gathering for purely national security purposes from judicial control causes a significant guarantee deficit in the effective protection of fundamental rights.

Methodology: The research is based on a dogmatic analysis of the legal norms in force, a comparative analysis of the different regulatory models (law enforcement, national security, and policing), and an examination in the context of international legal practice (in particular the case of Szabó and Vissy v. Hungary). The analysis uses the events of the Pegasus case in Hungary as a practical example to illustrate the structural shortcomings inherent in the model and the phenomenon of „forum shopping" practiced by the authorities.

Results: The research confirmed that certain pillars of Hungarian legislation are based on different legal philosophies; while the system of covert investigative techniques for law enforcement purposes is based on strong judicial control, the ministerial authorization of secret information gathering for national security purposes implements internal control by the executive branch. This structure creates a gray area (e.g., the investigation of terrorist acts) where authorities can choose the less stringent national security procedure, thereby circumventing judicial oversight. The investigation conducted by the National Authority for Data Protection and Freedom of Information in the Pegasus case confirmed the practical existence of this phenomenon.

Conclusion: The primary lesson of the study is that Hungary's multi-layered model of secret information gathering creates a systemic guarantee deficit that jeopardizes the protection of fundamental rights. Consequently, an important policy recommendation is to extend independent judicial control to information gathering for national security purposes and to strengthen parliamentary oversight. In the future, it may be worth examining whether the introduction of the proposed judicial control mechanism, based on foreign models, requires an amendment to the constitution or whether it can be achieved within the framework of lower-level amendments.