EU DI Rule of Law Clinic and Human Rights Centre at Ghent University submitted a third-party intervention in the Asbóth and Others v Hungary case. It concerns a complaint from numerous Hungarian activists, who argue that there are reasons to believe that their phones have been intercepted by Pegasus spyware.
In our intervention, we highlighted the relationship between the potential intrusiveness of the spyware and the availability of effective legal remedies. We also analysed the impact of the rule of law backsliding observable in several Contracting States (including Hungary) on individuals’ access to effective legal remedies in cases pertaining to secret surveillance. Finally, we highlighted the importance of the implementation of relevant ECtHR case-law (Szabó and Vissy v. Hungary in particular) in ensuring guarantees against potential illegal surveillance.
Our central proposition is that, where highly intrusive spyware is used in a context of weakened oversight, rule of law backsliding, and unimplemented Strasbourg case-law, the risk of arbitrary interference under Article 8 is especially acute. Tools such as Pegasus are capable of intruding into the most intimate spheres of private life to an extent that accentuates the State’s obligation to ensure precise legal limits, independent oversight and effective remedies. Their technical sophistication and secret nature also make it exceptionally difficult for individuals to obtain evidence of interference, even where there are serious grounds for concern that their communications or devices have been targeted. In those circumstances, the effectiveness of Article 8 protection cannot depend on the ability of affected persons to prove the use of such measures after the fact. Where highly intrusive surveillance technologies are deployed within a framework that is vague, executive-driven, or lacking effective remedial mechanisms, the risk of arbitrariness is correspondingly heightened.
That risk is even more acute where a respondent State has not established the system of oversight required by the Court’s own case-law, despite having been specifically called upon to do so.
In such a setting, the question before the Court is not simply whether secret surveillance may be justified in principle, but whether the continuing absence of adequate safeguards, effective remedies and Convention-compliant implementation leaves individuals exposed to a form of interference that is not capable of being regarded as necessary in a democratic society.
The Rule of Law Clinic does not represent the institutional position of Central European University (CEU PU GmbH).
