FIRST SECTION
CASE OF KLAUDIA CSIKÓS v. HUNGARY
(Application no. 31091/16)
 
 
JUDGMENT
 
Art 8 and Art 10 • Private life • Correspondence • Freedom of expression • Lack of adequate procedural safeguards for a journalist to challenge the alleged use of secret surveillance with a view to revealing her sources
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
28 November 2024
 
 
FINAL
 
28/02/2025
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Klaudia Csikós v. Hungary,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Marko Bošnjak, President,
 Alena Poláčková,
 Péter Paczolay,
 Erik Wennerström,
 Raffaele Sabato,
 Lorraine Schembri Orland,
 Ioannis Ktistakis, judges,
and Ilse Freiwirth, Section Registrar,
Having regard to:
the application (no. 31091/16) against Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Ms Klaudia Csikós (“the applicant”), on 17 May 2016;
the decision to give notice of the application to the Hungarian Government (“the Government”);
the parties’ observations;
Having deliberated in private on 13 February and 5 November 2024,
Delivers the following judgment, which was adopted on that last‑mentioned date:
INTRODUCTION
1. The application concerns the alleged tapping of the applicant’s telephone calls with a close acquaintance, apparently with the view of revealing her journalistic sources. It raises issues under Articles 8 and 10 of the Convention. THE FACTS
2. The applicant was born in 1975 and lives in Budapest. She was represented before the Court by Mr A. Cech, a lawyer practising in Budapest. 3. The Government were represented by their Agent, Mr Z. Tallódi, of the Ministry of Justice. 4. The facts of the case may be summarised as follows. 5. The applicant is a journalist at Blikk, a daily paper. 6. In the applicant’s submission, her phone has been tapped between 3 and 6 November 2015 by the investigation authorities with the view of identifying her journalistic sources. 7. On 6 November 2015 the Buda Central District Court authorised secret information-gathering measures against a police officer, T., including the tapping and recording of his telephone communications. The warrant, justified in the context of an ongoing investigation into charges of active bribery and aiding and abetting abuse of authority (under Article 293(1)-(2) and Article 305(c) of the Criminal Code), was valid until 3 February 2016. 8. On 17 November 2015 the applicant received two telephone calls from T., a close acquaintance. Their conversations concerning a high-profile murder case were recorded. The transcripts of the recordings omitted the personal parts of the conversations not relevant to the ongoing criminal proceedings. 9. On the same day, the applicant published an article about the murder case on an Internet news portal. The following day she expanded the article. 10. On 15 December 2015 criminal proceedings were initiated against T. on charges of abuse of authority for having shared secret information with the applicant. The information gathered by way of the phone tapping was allowed to be used in evidence in those proceedings by a decision of the Budapest Regional Court of 4 January 2016. 11. The applicant lodged a criminal complaint against the Pest County Police Department. She reported her suspicion that her telephone call lists might have been unlawfully acquired. She submitted that her contacts in the police had been removed from their posts, which she alleged must have been because they had been identified as her sources of information. The investigating authority characterised her complaint as an allegation of abuse of power, under Article 305 of the Criminal Code. The applicant’s criminal complaint was dismissed on 1 February 2016; the decision pointed out that call lists could be legitimately requested in ongoing investigations. The applicant complained against the decision, arguing that the transfer of her contacts in the police from their posts was evidence that her sources had been revealed through the monitoring of her calls. That complaint was also dismissed. 12. In the applicant’s submission, she found out on 11 May 2016 in the context of the criminal investigations in respect of T. that her phone had been tapped so as to identify her sources in the police. She submitted that the phone used by her, which had been provided by her employer, had been tapped between 3 and 6 November 2015. 13. On 19 May 2016 the applicant lodged a complaint with the National Defence Service (Nemzeti Védelmi Szolgálat) on the basis of section 92(2) of the Police Act, seeking an investigation and redress in respect of the tapping of her phone and the acquisition of her call list. The applicant’s lawyer maintained that he had plausible grounds to believe that in the second half of 2015, on the instruction of the National Defence Service, the Directorate of the National Security Service (Nemzetbiztonsági Szakszolgálat) had conducted a secret investigation in respect of the applicant, under the code name “German 8”, concerning alleged offences of bribery and aiding and abetting abuse of authority. Furthermore, her call list had been accessed by the National Security Service in order to identify her sources. In the applicant’s understanding, both measures had been taken in accordance with section 72(1) of the Police Act, which allowed for the use of special measures without judicial authorisation in urgent cases and for a limited period of time. However, the secret surveillance measure had not been subsequently approved by a judge, as required by law, her data had not been deleted and she had not been questioned, either as a witness or as a suspect in the case. The applicant argued that the measures had had a deterrent effect on her work as a journalist and constituted a violation of her rights under Articles 8 and 10 of the Convention. 14. The National Defence Service rejected the complaint on 22 June 2016 as partly incompatible ratione materiae with the Police Act, since secret information gathering could not be challenged under that Act. The applicant was also informed that the conduct of the National Defence Service had otherwise been in accordance with the law; however, no further information could be provided since the complaint concerned ongoing criminal proceedings. 15. On 23 May 2016 the applicant lodged a similar complaint with the Minister of the Interior under section 11(5) of Act no. CXXV of 1995 on the National Security Services (“the National Security Act” – see paragraph 24 below). In his reply of 13 June 2016, the Minister offered general considerations on the lawful functioning of the services complained about. The Minister did not address the circumstances of the applicant’s case but stated that the conduct of the National Security Service had been in compliance with the law. As regards the actions of the National Defence Service, the Minister explained that since it could not be challenged under the National Security Act, he examined the applicant’s complaint under the Act on public interest disclosures. He stated in general terms that the conduct of the National Defence Service had complied with the law. However, no further information could be provided, as it related to ongoing criminal proceedings. 16. The applicant lodged a subsequent complaint with the National Security Committee of Parliament under section 14(4)(c) of the National Security Act, adding to her previous complaints that the Minister had apparently not disputed that secret investigations had been conducted in respect of her or that her sources had been identified through access to her call list. The Committee informed the applicant on 10 October 2016 that, on the basis of documents provided by the National Defence Service, there was no appearance of a breach of the law. 17. On 8 May 2017 the applicant submitted a request to the National Defence Service under Act no. CLV of 2009 on the Protection of Classified Data for leave to access documents in respect of the covert information gathering in the proceedings against T. Following a negative reply on the grounds that the disclosure of the requested information would jeopardise the prevention and/or investigation of crime, the applicant brought an action against the National Defence Service for judicial review. In a counterclaim, the National Defence Service submitted that providing the requested information would allow the applicant to gain insight into the functioning of the Service and would divulge information about other persons likewise concerned by the covert information gathering. Furthermore, the requested information might be used in the criminal proceedings against T. The National Defence Service also put forward that, in any event, the covert information gathering had been lawful and had been authorised by a judge. The identity of the persons in respect of whom such measures were authorised constituted classified information. 18. In a final judgment of 11 September 2017 (in which T. was identified as the applicant’s husband), the Budapest Administrative and Labour Court dismissed the action, holding that the applicant, quite independently of any conjecture on her part, had not been entitled to learn the identity of the person in respect of whom the covert information gathering had been ordered. This consideration precluded any further examination of her claims related to the lack of a judicial authorisation, the protection of her private life and of her freedom of expression and journalistic sources. 19. On 25 May 2018 the criminal court cleared T. of the charge of abuse of authority and the acquittal was upheld by the Budapest Court of Appeal on 12 December 2018. RELEVANT LEGAL FRAMEWORK
DOMESTIC LAW
20. The relevant parts of the Data Protection Act of 2011 provide as follows:
Investigation by the [National Data Protection] Authority
Section 52
“(1) Every person shall have the right to notify the Authority and request an investigation in relation to an alleged infringement of his or her personal data or of the exercise of the rights of access to public information or information of public interest, or if there is imminent danger of such an infringement.
...”
Administrative proceedings for data protection
Section 60
“(1) In order to give effect to the right to protection of personal data, the Authority shall, upon a request by the data subject, open administrative proceedings for data protection and may open such proceedings for data protection of its own motion.
...”
21. The Civil Code of 2013 provides as follows, in so far as relevant:
Article 2:42
[Protection of rights relating to personality]
“(1) Everyone is entitled to freely exercise his or her personality rights ... and not to be impeded by others in exercising such rights. (2) Human dignity and the related personality rights must be respected by all. Personality rights shall be protected under this [Code]. ...”
Article 6:548
[Liability for the actions of administrative authorities]
“(1) Liability for damage caused within the scope of administrative jurisdiction shall be established if the damage results from actions or omissions in the exercise of public authority and if the damage cannot be abated by way of common remedies or administrative actions. (2) Liability for damage caused within the scope of administrative jurisdiction shall lie with the legal person exercising public authority. ...”
Article 6:549
[Liability for the actions of courts, public prosecutors, notaries public and court bailiffs]
“(1) The provisions on liability for damage caused within the scope of administrative jurisdiction shall apply, mutatis mutandis, to liability for the actions of courts and public prosecutors ...”
22. Act no. XIX of 1998 on the Code of Criminal Procedure provides, in so far as relevant:
Article 206/A
“... (4) The admission of the results of covert information gathering as evidence in criminal proceedings, if the conditions set forth in paragraph (1) are met, may be requested by the prosecutor after the initiation of the investigation. The investigating judge shall decide on such a request.”
23. The relevant parts of the Police Act (no. XXXIV of 1994) provide:
Chapter VII
Covert information gathering subject to judicial authorisation
Section 69
“(1) In the case of serious crimes and in the circumstances listed in subsection (3), the police may, subject to authorisation given by a judge and prior to the opening of a criminal investigation,
... (d) obtain information on the content of communications transmitted via electronic telecommunication services and record such content; and
(e) obtain, record and use the information transmitted via an IT device or an IT system or stored thereon.
...”
Section 72
“(1) If the authorisation for using special measures would cause a delay that would clearly jeopardise the interest in successful prosecution, the chief of the police department may order a covert search and, for a maximum period of seventy-two hours, the use of special measures (an emergency order). (2) In the event of an emergency order, an application for the authorisation shall be submitted at the same time. If the application is rejected, a new emergency order for the same purpose may not be issued on the basis of the same reasons or facts.”
Section 73
“... (3) Any information unrelated to the subject matter and the personal data of any person who is not concerned with the case must be deleted within eight days from the termination of the covert information gathering using a special device.”
Section 92
“(1) A person whose fundamental right has been infringed through a violation of an obligation, a police measure, a failure to take a police measure or the use of coercive means as specified in Chapters IV-V, with the exception of sections 46/A-46/C, and in Chapter VI may:
(a) file a complaint with the police entity implementing the measure;
(b) request that his/her complaint is adjudicated by:
 (ba) the national police chief;
(bb) the director general of the police entity for internal crime prevention and crime detection; or
(bc) the director general of the anti-terrorist entity.
...”
24. Under section 11(5) of the National Security Act, complaints about the activities of the National Security Services are to be investigated by the Minister of the Interior, who must inform the complainant of the outcome of the investigation and of the relevant measures within thirty days (this deadline may be extended once by another thirty days). Where a complainant does not accept the results of the investigation under section 11(5), the National Security Committee of Parliament may investigate a complaint of unlawful activities on the part of the National Security Services if, on the basis of an affirmative vote of at least one-third of the Committee members, the gravity of the complaint justifies an investigation. In investigating a complaint, the Committee must examine the complaint in issue and may request the Minister to submit his or her opinion on the case. If the Committee is of the view that the operations of the National Security Services have been unlawful or improper, it may request the Minister to conduct investigations and to inform the Committee of the results of the investigations or may itself carry out factfinding investigations if it suspects that the operations of the services in question are contrary to the relevant laws. In carrying out the fact-finding investigations, the Committee may inspect the relevant documents in the records of the National Security Services and may hear evidence from staff members of the services in question. Depending on the findings, the Committee may invite the Minister to take the necessary actions. DOMESTIC PRACTICE
25. The Kúria’s decision in case no. Bhar. 702/2019/9 contains the following relevant passage:
“...The prohibition on the storage of information ... does not mean that the results of a lawfully authorised and implemented covert information-gathering measure which is not part of the criminal proceedings cannot be used once the presumed time‑limit for lodging a criminal complaint has passed. It only means that information obtained, without judicial authorisation and without a legal basis, about other persons not concerned by the secret information gathering cannot be collected and stored. The Kúria merely points out that the courts trying criminal cases and the judges authorising covert information gathering have no way of verifying whether the services gathering the information have fulfilled their duty under section 73(3) of the Police Act to delete the information.
...”
26. Judgment no. Bf.133/2021/8 of the Budapest Court of Appeal contains the following relevant passages:
“... It is the view of the second-instance court that the activities of covert information gathering and covert data acquisition – despite a number of similarities in their regulation – are considerably different in respect of the aims of the measures and the purpose of the relevant legal institutions. Covert information gathering for the purpose of suppressing criminal activity may only be ordered prior to the opening of the criminal proceedings and outside the criminal proceedings, under section 63(1) of the Police Act, for, among other purposes, the prevention, detection and disruption of criminal activity. The reason for this is that the essential condition for the opening of criminal proceedings, namely the suspicion that someone has committed a criminal offence – that is, the suspicion of particular conduct – is absent. At the time of the application of the covert measures, the information available to the authorities is restricted. In many cases the offence has not been committed yet, and therefore the identity of the persons involved is also unknown. One cannot speak of either offenders or suspects. It follows that while covert data acquisition may be authorised in respect of a suspect – a person who is suspected of committing a criminal offence – or a person who maintains a criminal relationship with a suspect, pursuant to section 202(1)-(2) of Act no. XIX of 1998, covert information gathering is not limited to these persons. Accordingly, ... for the authorisation of covert information gathering, it is not necessary that the identity of the person concerned be known to the authorities. It follows that covert information gathering may be regulated through the setting of time-limits, which is the only element which the authorities may be held accountable for. The balance between the interest in the prosecution of criminal offences and fundamental rights is ensured by defining in law the offences in respect of which covert information gathering may be ordered, by prescribing time-limits, by requiring judicial authorisation both for ordering and prolonging a measure, by providing for an obligation to discontinue the measure, by setting conditions for the use of its results and by penalising a failure to lodge a criminal complaint ...”
THE LAW
ALLEGED VIOLATION OF ARTICLEs 8 and 10 OF THE CONVENTION
27. The applicant complained under Articles 8, 10 and 13 of the Convention about the tapping of her telephone calls and that she had been denied an effective remedy in that connection. The Court being the master of the characterisation to be given in law to the facts complained of (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018) considers that by its very nature, the applicant’s argument presented under Article 13 of the Convention falls to be examined under the merits of her complaint under Articles 8 and 10 of the Convention, in particular in terms of whether sufficient safeguards were put in place to ensure the applicant’s rights under those provisions. Although questions raised by surveillance measures are usually considered under Article 8 alone, in the present case they are so intertwined with the issue raised under Article 10 that the Court finds it appropriate to consider the matter under Articles 8 and 10 concurrently (see Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, no. 39315/06, § 88, 22 November 2012). The Articles in question read as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 10
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
AdmissibilityThe parties’ submissions

28. The Government argued that the applicant could not claim to be a “victim” for the purposes of Article 34 of the Convention since it had not been her telephone, but rather that of T., which had been tapped. Moreover, it had been T. and not the applicant who had been subjected to criminal prosecution. Neither the applicant nor her employer had been penalised for publishing the information obtained from her contact in the police. 29. Moreover, she had not exhausted domestic remedies in that she had not pursued a complaint procedure with the National Authority for Data Protection and Freedom of Information (“the Data Protection Authority” or “the DPA”) under sections 52 or 60 of the Data Protection Act of 2011. 30. The Government further argued that the applicant could have sued the responsible authorities for damages on account of the infringement of her right to freedom of expression under the relevant rules of the Civil Code – a procedure capable of leading to a judgment which could ultimately have been challenged before the Constitutional Court. 31. The applicant alleged that the fact that the domestic authorities had opened criminal investigations in respect of T. proved that T. had been identified as her source in the police. In her understanding this demonstrated a reasonable likelihood that her communications had been intercepted and her call lists had been monitored. 32. The applicant further submitted that she had actively sought remedies for the alleged tapping of her phone. She initiated criminal proceedings, but her criminal complaint had been dismissed by the Police Department. She had enquired with the Ministry of Interior and the National Security Committee of Parliament; none of them had conducted an adequate examination of the matter. She had lodged a complaint with the National Defence Service and subsequently requested access to the documents in respect of the covert information gathering in the proceedings against T. These actions had also been to no avail, thus she eventually challenged the alleged grievances before the courts. 33. She argued that the legal avenues referred to by the Government, that is, having recourse to the DPA and to a civil action, would have been no more effective than the ones she had already availed herself of.

Outcome for Article 10: violation