Published on 26 August 2024
FIRST SECTION
Application no. 15147/23
Zoltán SZELÉNYI
against Hungary
lodged on 1 April 2023
communicated on 10 July 2024
SUBJECT MATTER OF THE CASE
The application concerns the “integrity testing” (megbízhatósági vizsgálat) under Act no. XXXIV of 1994 on the Police (“the Police Act”).
Integrity testing was introduced in Hungary in 2011 to combat corruption and to effectively monitor the fulfilment of professional obligations established by law, work contract or collective agreement. The procedure is governed by Sections 7-7/D of the Police Act. It can be carried out by the National Protective Service (NPS), the internal body of the police responsible for crime prevention and crime investigation. During the integrity testing, the NPS artificially creates life situations that occur or may be assumed to occur in the course of performing the job in question. It is entitled to use certain forms of secret information gathering which do not require judicial authorisation, such as secret observation of a person, a dwelling, other premises, a public place or a place open for the public, and a vehicle. It can collect information about what has happened and might record it by technical means. The NPS can also obtain information necessary to establish the fact of communication by electronic devices or to identify or locate such devices, without having access to the content of the communications concerned. No disciplinary or regulatory offence proceedings can be brought on the basis of any unlawful conduct discovered during the procedure.
Originally, the measure was targeted primarily at certain law enforcement agencies. With effect of 1 January 2021 an amendment to the Police Act extended the personal scope of integrity testing to, among others, health care professionals by modifying Section 7(1) (b) (bb).
The applicant works as a doctor in a city hospital.
On 28 June 2021 he requested the Constitutional Court to quash the provision of the Police Act which extended the scope of the integrity test to his situation, arguing that it violated his right to respect for private and family life. The Constitutional Court rejected his complaint on 29 November 2022 which decision was served on the applicant on 3 December 2022. It found that the interference complained of served the legitimate aim of creating a transparent and corruption-free health care system, and ensuring citizens’ right to health and equal access to health services. The Constitutional Court was of the view that the tools of integrity testing – the creation of artificial life situations and covert surveillance – were the only means of achieving these goals. As to the proportionality of the measure, it essentially held that the State, as the provider of public health services, enjoys a wide margin of appreciation in determining the content of the employment relationship concerning health care professionals. It also took into account that health care professionals were free to decide whether to accept the new form of employment introduced in 2020.
The applicant complains under Article 8 of the Convention that the possibility of being subjected to secret surveillance during integrity testing constitutes an unnecessary and disproportionate interference with his right to respect for private and family life. He argues that the measure has an intimidating effect, does not serve the legitimate aims declared in the Police Act and, even assuming that it does serve a law enforcement purpose, it constitutes a disproportionate interference since it does not require that there be a suspicion of a criminal offence. Furthermore, in his opinion, the legislation does not provide for safeguards against abuse.
QUESTIONS TO THE PARTIES
1. Can the applicant claim to be potential victim for the purposes of Article 34 (see Szabó and Vissy v. Hungary, no. 37138/14, §§ 32-38, 12 January 2016)?
2. Has there been an interference with the applicant’s right to respect for private and family life, home or correspondence, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in a democratic society to protect a legitimate aim, as required by Article 8 § 2 of the Convention?