Vig v. Hungary (Application no. 59648/13)
A selection of key paragraphs can be found below the judgment.
50. The applicant was stopped by police officers and obliged to submit to a search under the provisions of the Police Act (see paragraphs 9 and 10 above). For the reasons above, the Court considers that this search constituted an interference with his right to respect for private life under Article 8. Such an interference is justified by the terms of paragraph 2 of Article 8 only if it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims (see Gillan and Quinton, cited above, § 65).
56. There is no requirement in the legislation that an enhanced check be considered necessary for its stated objective at the stage when it is authorised. As a consequence, the senior police officer who authorises the check is not under any obligation to assess and substantiate the proportionality of the measure. Although the senior police officer ordering the enhanced check has to notify his or her supervisor of any planned enhanced check or, in the event that the enhanced check has already been carried out, report it to his or her supervisor (see section 26(4) of the Service Regulation, cited in paragraph 23 above), there is no scrutiny, either within the executive or by any authority independent from the police, of how the authorisation power is exercised.
57. The Court also notes that the authorisation of enhanced checks could not be subsequently challenged before the courts either. As stated in the judgment of 28 April 2016, the Budapest Administrative and Labour Court had no power to examine the authorisation of the enhanced checks or the operational plan adopted under that authorisation (see paragraph 17 above).
58. Based on the above, the Court is of the view that the legislature failed to provide for any real restrictions or checks on the executive’s issuing of authorisation for enhanced checks.
60. The Court further takes note of the powers conferred on individual police officers under section 30 of the Police Act (see paragraph 22 above). The Police Act authorises police officers to check a person’s identity and search persons at a location specified by a senior police officer, to apprehend a perpetrator or prevent an activity endangering public security. The legislation does not state that those measures are implemented in respect of persons who are suspected of wrongdoing. Thus, it is not necessary for a police officer to demonstrate the existence of any reasonable suspicion against the person subjected to the measures; the only condition provided for in the legislation is that the identity check and search has to be related to the objectives described in section 30 of the Police Act. As evidenced by the present case, in practice, a police officer has the discretion to carry out measures in respect of anybody who is present at the location where an enhanced check is carried out.
61. The Court also notes that whereas an individual can challenge the police measures carried out in respect of him or her by way of a complaint to a police department, and subsequently by way of a judicial review, the present case demonstrates that those remedies are limited to assessing the manner in which the measures were carried out, and do not cover the necessity of the identity check and search. In general, in the absence of any obligation on the part of a police officer to demonstrate that a person who is checkedand searched is involved in or in any way linked to any of the activities described in section 30 of the Police Act, it appears that it is not possible to prove that a police officer has exceeded his or her powers when he or she has decided to perform an enhanced check on a given individual at an authorised location.
62. In the absence of any real restriction or review of either the authorisation of an enhanced check or the police measures carried out during an enhanced check, the Court is of the view that the domestic law did not provide adequate safeguards to offer the individual adequate protection against arbitrary interference. Therefore, the measures complained of were not “in accordance with the law” within the meaning of Article 8 of the Convention.
63. It follows that there has been a violation of that provision.