The petition highlights four ways in which the Act threatens the constitutional operation of the national security sector:
1. The classification of information (previously called state secrets or service secrets) is the most powerful restriction on the right of access to information of public interest. The Act on classified information does not assure that information can be classified only when it is necessary, and does not prevent abuse by persons seeking toprevent violations of law and corruption from being detected or to protect the reputation of an organization.
2. The new Act does not provide an effective legal remedy in court to access classified information. Additionally, it does not specify whether judges can examine the reasonableness of the classification, or if judges are limited to examining whether or not the documents have been marked “Secret.”
3. The rules on national security supervision set forth in the Act on national security further weaken the monitoring of Hungarian intelligence agencies. The members of the parliamentary committees for national security and defense, and the justices who preside over cases where classified data is handled, have to pass a national security vetting. The vetting does not only examine the reliability of the individual who is going handle the classified data, but also whether this individual can be blackmailed and through what means. The vetting is performed by the National Security Office, and eventually the monitored committee members and judges would have the role controlling the National Security Office.
4. The legislator turned the application of the criminal sanctions for abuse of classified information totally unpredictable, by giving the exclusive authority to initiate criminal procedure in such cases to the originator of the information. Therefore there is a high risk that criminal enforcement may become servant of political interests.
The activities of the intelligence agencies are the least transparent of any Hungarian public body. For this reason, there is a particularly strong need to closely monitor whether the agencies use their power legitimately and accordingly with the values of the rule of law.
The three organizations used arguments similar to these when they petitioned to the President of the Hungarian Republic to initiate an ex ante examination of the Act’s constitutionality at the Constitutional Court in December of 2009. Their petitions left unanswered, the three organizations now argue that the Act is unconstitutional. The three organizations have initiated their current proceeding before the Constitutional Court, and expect that the Constitutional Court will quickly decide to request the legislature to pass constitutional amendments to these laws.