Inadequate Regulation, Mandatory Lie Detector Test - The Ombudsman on Some Problematic Elements of National Security Inspection

National security may be a legitimate excuse for curbing one's privacy, so national security inspection in itself does not constitute an infringement of one's right to privacy. On the other hand, the shortcomings of the Act on the National Security Services may endanger privacy, equality before the law and the right to fair procedure, stated the Ombudsman.

Acting partly on a citizen's complaint  and partly ex officio, Máté Szabó conducted an inquiry into the practical implementation of national security inspections and the relevant legal regulations and other norms. The Ombudsman concluded that national security interests may provide a legitimate reason for restraining one's privacy, so national security inspection in itself cannot run counter to one's right to privacy. He pointed out, however, that the Act on the National Security Services is faulty since it does not allow people subjected to national security inspection to learn about the possible "risk factors" arising as a result of some crime they may or may not have committed sometime, somewhere in the past, and endangering the prospect of their (further) employment. It may directly infringe on the principle of the rule of law and the requirement of legal certainty deriving therefrom. It may also lead to the infringement of the equality before the law and the right to fair procedure, pointed out the Commissioner for Fundamental Rights.

The subjects of national security inspection may not appeal to a court, and it is a breach of the right to legal remedy. In this context the Commissioner for Fundamental Rights cited the recommendation of the Council of Europe, according to which those who feel that their rights have been unwarrantedly infringed upon or ignored in the process of a national security inspection or operation should be able to turn to a court.

In case any trait of the subject's personality is suspected to be a risk factor, the Director General of the Constitution Protection Office has to order a polygraph test – he is obligated to do so by a ministerial decree, not by a statute. It does not meet the requirement of the protection of fundamental rights, stipulated by the Basic Law, even if the subject consents to the test. According to Máté Szabó, the use of equipments measuring biological, neurophysical reactions is in fundamental contradiction with the requirement of legal certainty and the right to human dignity.

The Commissioner submitted his findings to the Minister of Public Administration and Justice recommending the revision and amendment of the Act on the National Security Services. To the Minister of Interior he proposed to stop ordering and conducting mandatory lie detection testing of the professional staff of the civil national security services.