The Prosecutor General’s Office says the seizure of FIDESZ’s servers constituted an unlawful so-called “fishing expedition.” The order authorizing the search was found to be lawful, but the seizures must be carried out again, this time on the basis of criteria established in advance. The prosecution also raised data-protection concerns.

As Hungary Today reported, on July 21, prosecutors arrived without prior notice at the data center operating FIDESZ’s IT system, with the intention of seizing FIDESZ’s entire communications system and databases. According to FIDESZ, there has been no precedent for such action since 1990, the end of communism.

A major turn has taken place in the criminal investigation launched over approximately HUF 17 billion (EUR 47 million) in funding from the National Cultural Fund. The Prosecutor General’s Office has upheld FIDESZ’s complaints against the seizures and ordered the Bács-Kiskun County Chief Prosecutor’s Office, which is conducting the investigation, to repeat the procedural measures.

According to the prosecution authority acting at second instance, the seizures carried out amounted to a fishing expedition, or a form of data fishing.

Former Minister of Culture Balázs Hankó, who has been targeted in the investigation concerning the NKA. Photo: MTI/Kocsis Zoltán

The decision, however, draws an important distinction between the search and the seizure. The Prosecutor General’s Office rejected FIDESZ’s complaints against the search order, meaning it found the order to search the data center, which also houses the party’s servers, to be lawful. The purpose of the search was to determine whether the data center contained electronic data connected to the criminal offense under investigation in the NKA case.

In the case of the seizures, however, the Prosecutor General’s Office reached a very different conclusion.

The essence of the second-instance decision is that investigators may not indiscriminately seize an entire body of data simply because it might contain relevant information. According to the Prosecutor General’s Office, there must also be a connection between the operator or owner of the server and the offense under investigation.

The prosecution particularly emphasized that

seizing the entire body of data may cause a disproportionate disadvantage to the server operator, as it could also prevent activities that have no connection whatsoever to the offense under investigation.

The problem was not only the volume of data. The seizures could also have involved personal data unrelated to the criminal proceedings, or data belonging to individuals who themselves are not involved in the case could have been swept up in the seized material.

Viktor Orbán, president of Fidesz (left), and János Bóka, the party’s parliamentary group leader, hold a press conference outside FIDESZ headquarters the day after the servers were seized. Photo: MTI/Hegedüs Róbert

According to the Prosecutor General’s Office, such data should have been excluded from the seizure from the outset. One of the ruling’s most important findings is that the procedural measures carried out fell into the category of a fishing expedition. This refers to a process in which an authority is not looking for a specific piece of evidence identified in advance, but instead obtains a large quantity of data and then searches through it to see whether it contains potentially incriminating information.

The Prosecutor General’s Office stated unequivocally:

This approach constitutes an unlawful practice under both EU and Hungarian law.

This means that the continuation of the investigation itself is not at risk, but the method of collecting evidence must be corrected. The retention of electronic data remains justified, but the data may only be seized on the basis of criteria established in advance, relating to the subject matter of the criminal proceedings and the relevant time period.

The Prosecutor General’s Office has therefore instructed the Bács-Kiskun County Chief Prosecutor’s Office to repeat the procedural measures. Until then, the coercive measure allowing the electronic data to be retained may remain in place for up to three months. During this period, investigators must immediately begin reviewing the data according to the criteria established in advance. Thereafter, only data connected to the facts and time period under investigation in the NKA case may be seized.

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Via Magyar Nemzet, Featured image: MTI/Miniszterelnöki Kommunikációs Főosztály/Kaiser Ákos