- European Union
- Council Resolution of 17 January 1995 on the lawful interception of telecommunications (96/C 329/01) provides as follows:
“This section presents the requirements of law enforcement agencies relating to the lawful interception of telecommunications. These requirements are subject to national law and should be interpreted in accordance with applicable national policies…
1.3. Law enforcement agencies require that the telecommunications to and from a target service be provided to the exclusion of any telecommunications that do not fall within the scope of the interception authorization…
- Law enforcement agencies require a real-time, fulltime monitoring capability for the interception of telecommunications. Call associated data should also be provided in real time. If call associated data cannot be made available in real time, law enforcement agencies require the data to be available as soon as possible upon call termination.
- Law enforcement agencies require network operators/service providers to provide one or several interfaces from which the intercepted communications can be transmitted to the law enforcement monitoring facility. These interfaces have to be commonly agreed on by the interception authorities and the network operators/service providers. Other issues associated with these interfaces will be handled according to accepted practices in individual countries…
- Law enforcement agencies require the interception to be designed and implemented to preclude unauthorized or improper use and to safeguard the information related to the interception…
5.2. Law enforcement agencies require network operators/service providers to ensure that intercepted communications are only transmitted to the monitoring agency specified in the interception authorization…”
- The above requirements were confirmed and expounded in Council Resolution No. 9194/01 of 20 June 2001 on law-enforcement operational needs with respect to public telecommunication networks and services.
- The judgment adopted by the Court of Justice of the European Union (the CJEU) on 8 April 2014 in the joint cases of Digital Rights Ireland and Seitinger and Others declared invalid the Data Retention Directive 2006/24/EC laying down the obligation on the providers of publicly available electronic communication services or of public communications networks to retain all traffic and location data for periods from six months to two years, in order to ensure that the data were available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law. The CJEU noted that, even though the directive did not permit the retention of the content of the communication, the traffic and location data covered by it might allow very precise conclusions to be drawn concerning the private lives of the persons whose data had been retained. Accordingly, the obligation to retain those data constituted in itself an interference with the right to respect for private life and communications guaranteed by Article 7 of the Charter of Fundamental Rights of the EU and the right to protection of personal data under Article 8 of the Charter. Furthermore, the access of the competent national authorities to the data constituted a further interference with those fundamental rights. The CJEU further held that the interference was particularly serious. The fact that data were retained and subsequently used without the subscriber or registered user being informed was likely to generate in the minds of the persons concerned the feeling that their private lives were the subject of constant surveillance. The interference satisfied an objective of general interest, namely to contribute to the fight against serious crime and terrorism and thus, ultimately, to public security. However, it failed to satisfy the requirement of proportionality. Firstly, the directive covered, in a generalised manner, all persons and all means of electronic communication as well as all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime. It therefore entailed an interference with the fundamental rights of practically the entire European population. It applied even to persons for whom there was no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious crime. Secondly, the directive did not contain substantive and procedural conditions relating to the access of the competent national authorities to the data and to their subsequent use. By simply referring, in a general manner, to serious crime, as defined by each Member State in its national law, the directive failed to lay down any objective criterion by which to determine which offences might be considered to be sufficiently serious to justify such an extensive interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter. Above all, the access by the competent national authorities to the data retained was not made dependent on a prior review carried out by a court or by an independent administrative body whose decision sought to limit access to the data and their use to what was strictly necessary for the purpose of attaining the objective pursued. Thirdly, the directive required that all data be retained for a period of at least six months, without any distinction being made between the categories of data on the basis of their possible usefulness for the purposes of the objective pursued or according to the persons concerned. The CJEU concluded that the directive entailed a wide-ranging and particularly serious interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter, without such an interference being precisely circumscribed by provisions to ensure that it was actually limited to what was strictly necessary. The CJEU also noted that the directive did not provide for sufficient safeguards, by means of technical and organisational measures, to ensure effective protection of the data retained against the risk of abuse and against any unlawful access and use of those data.
- Alleged violation of Article 8 of the Convention
- The applicant complained that the system of covert interception of mobile telephone communications in Russia did not comply with the requirements of Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
- 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.”
- The Government submitted that the applicant could not claim to be a victim of the alleged violation of his right to respect for his private life or correspondence (see paragraphs 152 to 157 below). Moreover, he had not exhausted domestic remedies (see paragraphs 219 to 226 below).
- The Court considers that the Government’s objections are so closely linked to the substance of the applicant’s complaint that they must be joined to the merits.
- The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.
- The applicant’s victim status and the existence of an “interference”
(a) Submissions by the parties
(i) The Government
- The Government submitted that the applicant could not claim to be a victim of the alleged violation of Article 8 of the Convention and that there had been no interference with his rights. He had not complained that his communications had been intercepted. The gist of his complaint before the domestic courts and the Court was that communications service providers had installed special equipment enabling the authorities to perform operational-search activities. In the Government’s opinion, the case of Orange Slovensko, A. S. v. Slovakia ((dec.), no. 43983/02, 24 October 2006) confirmed that installation of interception equipment, or even its financing, by private companies was not in itself contrary to the Convention.
- The Government further submitted that Article 34 could not be used to lodge an application in the nature of an actio popularis; nor could it form the basis of a claim made in abstracto that a law contravened the Convention (they referred to Aalmoes and 112 Others v. the Netherlands (dec.), no. 16269/02, 25 November 2004). They argued that the approach to victim status established in the cases of Klass and Others v. Germany (6 September 1978, § 34, Series A no. 28) and Malone v. the United Kingdom (2 August 1984, § 64, Series A no. 82) – according to which an individual might, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures had been in fact applied to him or her – could not be interpreted so broadly as to encompass every person in the respondent State who feared that the security services might have compiled information about him or her. An applicant was required to demonstrate that there was a “reasonable likelihood” that the security services had compiled and retained information concerning his or her private life (they referred to Esbester v. the United Kingdom, no. 18601/91, Commission decision of 2 April 1993; Redgrave v. the United Kingdom, no. 20271/92, Commission decision of 1 September 1993; Matthews v. the United Kingdom, no. 28576/95, Commission decision of 16 October 1996; Halford v. the United Kingdom, 25 June 1997, § 17, Reports of Judgments and Decisions 1997-III; Weber and Saravia v. Germany (dec.), no. 54934/00, §§ 4 – 6 and 78, ECHR 2006-XI; and Kennedy v. the United Kingdom, no. 26839/05, §§ 122 and 123, 18 May 2010).
- The Government maintained that exceptions to the rule of “reasonable likelihood” were permissible only for special reasons. An individual could claim an interference as a result of the mere existence of legislation permitting secret surveillance measures in exceptional circumstances only, having regard to the availability of any remedies at the national level and the risk of secret surveillance measures being applied to him or her (they cited Kennedy, cited above, § 124). According to the Government, no such special reasons could be established in the present case.
- Firstly, there was no “reasonable likelihood”, or indeed any risk whatsoever, that the applicant had been subjected to surveillance measures because he had not been suspected of any criminal offences. The fact that he was the editor-in-chief of a publishing company could not serve as a ground for interception under Russian law. The Government asserted that the applicant’s telephone conversations had never been intercepted. The applicant had not produced any proof to the contrary. The documents submitted by him in the domestic proceedings had concerned third persons and had not contained any proof that his telephone had been tapped.
- Secondly, remedies were available at the national level to challenge both the alleged insufficiency of safeguards against abuse in Russian law and any specific surveillance measures applied to an individual. It was possible to request the Constitutional Court to review the constitutionality of the OSAA. It was also possible to lodge a complaint with the Supreme Court, as had been successfully done by Mr N., who had obtained a finding of unlawfulness in respect of a provision of the Ministry of Communications’ Order no. 130 (see paragraph 128 above). As regards Order no. 70, contrary to the applicant’s allegations, it had been duly published (see paragraph 181 below) and could therefore be challenged in courts. A person whose communications had been intercepted unlawfully without prior judicial authorisation could also obtain redress in a civil court. The Government referred to the Supreme Court’s judgment of 15 July 2009, which found that the installation of a video camera in the claimant’s office and the tapping of his office telephone had been unlawful because those surveillance measures had been carried out without prior judicial authorisation (see also paragraphs 219 to 224 below). Finally, Russian law provided for supervision of interception of communications by an independent body, the prosecutor’s office.
- The Government concluded, in view of the above, that the present case was different from the case of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (no. 62540/00, 28 June 2007) where the Court had refused to apply the “reasonable likelihood” test because of the absence of any safeguards against unlawful interception in Bulgaria. Given that Russian law provided for adequate and sufficient safeguards against abuse in the sphere of interception of communications, including available remedies, in the Government’ opinion, the applicant could not claim an interference as a result of the mere existence of legislation permitting secret surveillance. In the absence of a “reasonable likelihood” that his telephone communications had been intercepted, he could not claim to be a victim of the alleged violation of Article 8 of the Convention.
(ii) The applicant
- The applicant submitted that he could claim to be a victim of a violation of Article 8 occasioned by the mere existence of legislation which allowed a system of secret interception of communications, without having to demonstrate that such secret measures had been in fact applied to him. The existence of such legislation entailed a threat of surveillance for all users of the telecommunications services and therefore amounted in itself to an interference with the exercise of his rights under Article 8. He relied in support of his position on the cases of Klass and Others (cited above, §§ 34 and 37), Association for European Integration and Human Rights and Ekimdzhiev (cited above, § 58) and Kennedy (cited above, § 123).
- The applicant maintained that the test of “reasonable likelihood” had been applied by the Court only in those cases where the applicant had alleged actual interception, while in the cases concerning general complaints about legislation and practice permitting secret surveillance measures the “mere existence” test established in the Klass and Others judgment had been applied (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 59, and Kennedy, cited above, §§ 122 and 123, with further references). In the case of Liberty and Others v. the United Kingdom (no. 58243/00, §§ 56 and 57, 1 July 2008), the Court found that the existence of powers permitting the authorities to intercept communications constituted an interference with the Article 8 rights of the applicants, since they were persons to whom these powers might have been applied. In the case of Kennedy (cited above, § 124) that test had been further elaborated to include the assessment of availability of any remedies at the national level and the risk of secret surveillance measures being applied to the applicant. Finally, in the case of Mersch and Others v. Luxemburg (nos. 10439/83 et al., Commission decision of 10 May 1985) the Commission found that in those cases where the authorities had no obligation to notify the persons concerned about the surveillance measures to which they had been subjected, the applicants could claim to be “victims” of a violation of the Convention on account of the mere existence of secret surveillance legislation, even though they could not allege in support of their applications that they had been subjected to an actual measure of surveillance.
- The applicant argued that he could claim to be a victim of a violation of Article 8, on account both of the mere existence of secret surveillance legislation and of his personal situation. The OSAA, taken together with the FSB Act, the Communications Act and the Orders adopted by the Ministry of Communication, such as Order no. 70, permitted the security services to intercept, through technical means, any person’s communications without obtaining prior judicial authorisation for interception. In particular, the security services had no obligation to produce the interception authorisation to any person, including the communications service provider. The contested legislation therefore permitted blanket interception of communications.
- No remedies were available under Russian law to challenge that legislation. Thus, as regards the possibility to challenge Order no. 70, the applicant referred to the Supreme Court’s decision of 25 September 2000 on a complaint by a Mr N. (see paragraph 128 above), finding that that Order was technical rather than legal in nature and was therefore not subject to official publication. He also submitted a copy of the decision of 24 May 2010 by the Supreme Commercial Court finding that the Orders by the Ministry of Communications requiring communications providers to install equipment enabling the authorities to perform operational-search activities were not subject to judicial review in commercial courts. The domestic proceedings brought by the applicant had shown that Order no. 70 could not be effectively challenged before Russian courts. Further, as far as the OSAA was concerned, the Constitutional Court had already examined its constitutionality on a number of occasions and had found that it was compatible with the Constitution. Finally, as regards the possibility to challenge individual surveillance measures, the applicant submitted that the person concerned was not notified about the interception, unless the intercepted material had been used as evidence in criminal proceedings against him. In the absence of notification, the domestic remedies were ineffective (see also paragraph 217 below).
- As to his personal situation, the applicant submitted that he was a journalist and the chairperson of the St Petersburg branch of the Glasnost Defence Foundation, which monitored the state of media freedom and provided legal support to journalists whose professional rights had been violated (see paragraph 8 above). His communications were therefore at an increased risk of being intercepted. The applicant referred in that connection to the fundamental importance of protecting journalists’ sources, emphasised by the Grand Chamber judgment in Sanoma Uitgevers B.V. v. the Netherlands ([GC], no. 38224/03, § 50, 14 September 2010).
(b) The Court’s assessment
- The Court observes that the applicant in the present case claims that there has been an interference with his rights as a result of the mere existence of legislation permitting covert interception of mobile telephone communications and a risk of being subjected to interception measures, rather than as a result of any specific interception measures applied to him.
(i) Summary of the Court’s case-law
- The Court has consistently held in its case-law that the Convention does not provide for the institution of an actio popularis and that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see, among other authorities, N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002-X; Krone Verlag GmbH & Co. KG v. Austria (no. 4), no. 72331/01, § 26, 9 November 2006; and Centre for Legal Resources on behalf of Valentin v. Romania [GC], no. 47848/08, § 101, ECHR 2014). Accordingly, in order to be able to lodge an application in accordance with Article 34, an individual must be able to show that he or she was “directly affected” by the measure complained of. This is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings (see Centre for Legal Resources on behalf of Valentin , cited above, § 96).
- Thus, the Court has permitted general challenges to the relevant legislative regime in the sphere of secret surveillance in recognition of the particular features of secret surveillance measures and the importance of ensuring effective control and supervision of them. In the case of Klass and Others v. Germany the Court held that an individual might, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures had been in fact applied to him. The relevant conditions were to be determined in each case according to the Convention right or rights alleged to have been infringed, the secret character of the measures objected to, and the connection between the applicant and those measures (see Klass and Others, cited above, § 34). The Court explained the reasons for its approach as follows:
“36. The Court points out that where a State institutes secret surveillance the existence of which remains unknown to the persons being controlled, with the effect that the surveillance remains unchallengeable, Article 8 could to a large extent be reduced to a nullity. It is possible in such a situation for an individual to be treated in a manner contrary to Article 8, or even to be deprived of the right granted by that Article, without his being aware of it and therefore without being able to obtain a remedy either at the national level or before the Convention institutions…
The Court finds it unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation. A right of recourse to the Commission for persons potentially affected by secret surveillance is to be derived from Article 25 [currently Article 34], since otherwise Article 8 runs the risk of being nullified.
- As to the facts of the particular case, the Court observes that the contested legislation institutes a system of surveillance under which all persons in the Federal Republic of Germany can potentially have their mail, post and telecommunications monitored, without their ever knowing this unless there has been either some indiscretion or subsequent notification in the circumstances laid down in the Federal Constitutional Court’s judgment… To that extent, the disputed legislation directly affects all users or potential users of the postal and telecommunication services in the Federal Republic of Germany. Furthermore, as the Delegates rightly pointed out, this menace of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8…
- Having regard to the specific circumstances of the present case, the Court concludes that each of the applicants is entitled to “(claim) to be the victim of a violation” of the Convention, even though he is not able to allege in support of his application that he has been subject to a concrete measure of surveillance. The question whether the applicants were actually the victims of any violation of the Convention involves determining whether the contested legislation is in itself compatible with the Convention’s provisions…”
- Following the Klass and Others case, the case-law of the Convention organs developed two parallel approaches to victim status in secret surveillance cases.
- In several cases the Commission and the Court held that the test in Klass and Others could not be interpreted so broadly as to encompass every person in the respondent State who feared that the security services might have compiled information about him or her. An applicant could not, however, be reasonably expected to prove that information concerning his or her private life had been compiled and retained. It was sufficient, in the area of secret measures, that the existence of practices permitting secret surveillance be established and that there was a reasonable likelihood that the security services had compiled and retained information concerning his or her private life (see Esbester, cited above; Redgrave, cited above; Christie v. the United Kingdom, no. 21482/93, Commission decision of 27 June 1994; Matthews, cited above; Halford, cited above, §§ 47 and 55 – 57; and Iliya Stefanov v. Bulgaria, no. 65755/01, §§ 49 and 50, 22 May 2008). In all of the above cases the applicants alleged actual interception of their communications. In some of them they also made general complaints about legislation and practice permitting secret surveillance measures (see Esbester, Redgrave, Matthews, and Christie, all cited above).
- In other cases the Court reiterated the Klass and Others approach that the mere existence of laws and practices which permitted and established a system for effecting secret surveillance of communications entailed a threat of surveillance for all those to whom the legislation might be applied. This threat necessarily affected freedom of communication between users of the telecommunications services and thereby amounted in itself to an interference with the exercise of the applicants’ rights under Article 8, irrespective of any measures actually taken against them (see Malone, cited above, § 64; Weber and Saravia, cited above, § 78; Association for European Integration and Human Rights and Ekimdzhiev, cited above, §§ 58, 59 and 69; Liberty and Others, cited above, §§ 56 and 57; and Iordachi and Others v. Moldova, no. 25198/02, §§ 30 – 35, 10 February 2009). In all of the above cases the applicants made general complaints about legislation and practice permitting secret surveillance measures. In some of them they also alleged actual interception of their communications (see Malone, cited above, § 62; and Liberty and Others, cited above, §§ 41 and 42).
- Finally, in its most recent case on the subject, Kennedy v. the United Kingdom, the Court held that sight should not be lost of the special reasons justifying the Court’s departure, in cases concerning secret measures, from its general approach which denies individuals the right to challenge a law in abstracto. The principal reason was to ensure that the secrecy of such measures did not result in the measures being effectively unchallengeable and outside the supervision of the national judicial authorities and the Court. In order to assess, in a particular case, whether an individual can claim an interference as a result of the mere existence of legislation permitting secret surveillance measures, the Court must have regard to the availability of any remedies at the national level and the risk of secret surveillance measures being applied to him or her. Where there is no possibility of challenging the alleged application of secret surveillance measures at domestic level, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified. In such cases, even where the actual risk of surveillance is low, there is a greater need for scrutiny by this Court (see Kennedy, cited above, § 124).
(ii) Harmonisation of the approach to be taken
- The Court considers, against this background, that it is necessary to clarify the conditions under which an applicant can claim to be the victim of a violation of Article 8 without having to prove that secret surveillance measures had in fact been applied to him, so that a uniform and foreseeable approach may be adopted.
- In the Court’s view the Kennedy approach is best tailored to the need to ensure that the secrecy of surveillance measures does not result in the measures being effectively unchallengeable and outside the supervision of the national judicial authorities and of the Court. Accordingly, the Court accepts that an applicant can claim to be the victim of a violation occasioned by the mere existence of secret surveillance measures, or legislation permitting secret surveillance measures, if the following conditions are satisfied. Firstly, the Court will take into account the scope of the legislation permitting secret surveillance measures by examining whether the applicant can possibly be affected by it, either because he or she belongs to a group of persons targeted by the contested legislation or because the legislation directly affects all users of communication services by instituting a system where any person can have his or her communications intercepted. Secondly, the Court will take into account the availability of remedies at the national level and will adjust the degree of scrutiny depending on the effectiveness of such remedies. As the Court underlined in Kennedy, where the domestic system does not afford an effective remedy to the person who suspects that he or she was subjected to secret surveillance, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified (see Kennedy, cited above, § 124). In such circumstances the menace of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8. There is therefore a greater need for scrutiny by the Court and an exception to the rule, which denies individuals the right to challenge a law in abstracto, is justified. In such cases the individual does not need to demonstrate the existence of any risk that secret surveillance measures were applied to him. By contrast, if the national system provides for effective remedies, a widespread suspicion of abuse is more difficult to justify. In such cases, the individual may claim to be a victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures only if he is able to show that, due to his personal situation, he is potentially at risk of being subjected to such measures.
- The Kennedy approach therefore provides the Court with the requisite degree of flexibility to deal with a variety of situations which might arise in the context of secret surveillance, taking into account the particularities of the legal systems in the member States, namely the available remedies, as well as the different personal situations of applicants.
(iii) Application to the present case
- It is not disputed that mobile telephone communications are covered by the notions of “private life” and “correspondence” in Article 8 § 1 (see, for example, Liberty and Others, cited above, § 56).
- The Court observes that the applicant in the present case claims that there has been an interference with his rights as a result of the mere existence of legislation permitting secret surveillance measures and a risk of being subjected to such measures, rather than as a result of any specific surveillance measures applied to him.
- The Court notes that the contested legislation institutes a system of secret surveillance under which any person using mobile telephone services of Russian providers can have his or her mobile telephone communications intercepted, without ever being notified of the surveillance. To that extent, the legislation in question directly affects all users of these mobile telephone services.
- Furthermore, for the reasons set out below (see paragraphs 286 to 300), Russian law does not provide for effective remedies for a person who suspects that he or she was subjected to secret surveillance.
- In view of the above finding, the applicant does not need to demonstrate that, due to his personal situation, he is at risk of being subjected to secret surveillance.
- Having regard to the secret nature of the surveillance measures provided for by the contested legislation, the broad scope of their application, affecting all users of mobile telephone communications, and the lack of effective means to challenge the alleged application of secret surveillance measures at domestic level, the Court considers an examination of the relevant legislation in abstracto to be justified.
- The Court therefore finds that the applicant is entitled to claim to be the victim of a violation of the Convention, even though he is unable to allege that he has been subject to a concrete measure of surveillance in support of his application. For the same reasons, the mere existence of the contested legislation amounts in itself to an interference with the exercise of his rights under Article 8. The Court therefore dismisses the Government’s objection concerning the applicant’s lack of victim status.
- The justification for the interference
(a) Submissions by the parties
(i) Accessibility of domestic law
- The applicant submitted that the addendums to Order no. 70 describing the technical requirements for the equipment to be installed by communications service providers had never been officially published and were not accessible to the public. In the applicant’s opinion, in so far as they determined the powers of the law-enforcement authorities with regard to secret surveillance, they affected citizens’ rights and ought therefore to have been published. The fact that the applicant had eventually had access to the addendums in the domestic proceedings could not remedy the lack of an official publication (he referred to Kasymakhunov and Saybatalov v. Russia, nos. 26261/05 and 26377/06, § 92, 14 March 2013). Citizens should not be required to engage judicial proceedings to obtain access to regulations applicable to them. The Court had already found that it was essential to have clear, detailed and accessible rules on the application of secret measures of surveillance (Shimovolos v. Russia, no. 30194/09, § 68, 21 June 2011).
- The Government submitted that Order no. 70 was technical in nature and was not therefore subject to official publication. It had been published in a specialised magazine, SvyazInform, in issue no. 6 of 1999. It was also available in the ConsultantPlus internet legal database, and was accessible without charge. The applicant had submitted a copy of the Order with its addendums to the Court, which showed that he had been able to obtain access to it. The domestic law was therefore accessible.
(ii) Scope of application of secret surveillance measures
- The applicant submitted that the Court had already found that the OSAA did not meet the “foreseeability” requirement because the legal discretion of the authorities to order “an operative experiment” involving recording of private communications through a radio-transmitting device was not subject to any conditions, and the scope and the manner of its exercise were not defined (see Bykov v. Russia [GC], no. 4378/02, § 80, 10 March 2009). The present case was similar to the Bykov case. In particular, Russian law did not clearly specify the categories of persons who might be subjected to interception measures. In particular, surveillance measures were not limited to persons suspected or accused of criminal offences. Any person who had information about a criminal offence could have his or her telephone tapped. Furthermore, interception was not limited to serious and especially serious offences. Russian law allowed interception measures in connection with offences of medium severity, such as, for example, pickpocketing.
- The Government submitted that interception of communications might be conducted only following the receipt of information that a criminal offence had been committed or was ongoing, or was being plotted; about persons conspiring to commit, or committing, or having committed a criminal offence; or about events or activities endangering the national, military, economic or ecological security of the Russian Federation. The Constitutional Court had held in its ruling of 14 July 1998 that collecting information about a person’s private life was permissible only with the aim of preventing, detecting and investigating criminal offences or in pursuance of other lawful aims listed in the OSAA.
- Only offences of medium severity, serious offences and especially serious offences might give rise to an interception order and only persons suspected of such offences or who might have information about such offences could be subject to interception measures. The Government submitted in this connection that the Court had already found that surveillance measures in respect of a person who was not suspected of any offence could be justified under the Convention (see Greuter v. the Netherlands (dec.), no. 40045/98, 19 March 2002).
- Further, in respect of interceptions for the purposes of protecting national security, the Government argued that the requirement of “foreseeability” of the law did not go so far as to compel States to enact legal provisions listing in detail all conduct that might prompt a decision to subject an individual to surveillance on “national security” grounds (see Kennedy, cited above, § 159).
(iii) The duration of secret surveillance measures
- The applicant submitted that the OSAA did not explain under which circumstance interception could be extended beyond six months. Nor did it establish the maximum duration of interception measures.
- The Government submitted that under Russian law interception might be authorised by a judge for a maximum period of six months and might be extended if necessary. It had to be discontinued if the investigation was terminated. They argued that it was reasonable to leave the duration of the interception to the discretion of the domestic authorities, having regard to the complexity and the duration of the investigation in a specific case (see Kennedy, cited above). They also referred to the case of Van Pelt v. the Netherlands (no. 20555/92, Commission decision of 6 April 1994), where the Commission had found that the tapping of the applicant’s telephone for almost two years had not violated the Convention.
(iv) Procedures to be followed for storing, accessing, examining, using, communicating and destroying the intercepted data
- The applicant further submitted that the OSAA did not specify the procedures to be followed for examining, storing, accessing or using the intercept data or the precautions to be taken when communicating the data to other parties. It provided that the data had to be destroyed within six months, unless that data were needed in the interest of the service or of justice. There was however no definition of what the “interest of the service or of justice” meant. Russian law also gave complete freedom to the trial judge as to whether to store or to destroy data used in evidence after the end of the trial.
- The Government submitted that the OSAA required that records of intercepted communications had to be stored under conditions excluding any risk of their being listened to or copied by unauthorised persons. The judicial decision authorising interception of communications, the materials that served as a basis for that decision and the data collected as result of interception constituted a State secret and were to be held in the exclusive possession of the State agency performing interceptions. If it was necessary to transmit them to an investigator, a prosecutor or a court, they could be declassified by the heads of the agencies conducting operational-search activities. Interception authorisations were declassified by the courts which had issued them. The procedure for transmitting the data collected in the course of operational-search activities to the competent investigating authorities or a court was set out in the Ministry of the Interior’s Order of 27 September 2013 (see paragraph 58 above).
- The data collected in the course of operational-search activities were to be stored for one year and then destroyed, unless it was needed in the interests of the service or of justice. Recordings were to be stored for six months and then destroyed. Russian law was therefore foreseeable and contained sufficient safeguards.
(v) Authorisation of secret surveillance measures
- The applicant submitted that although domestic law required prior judicial authorisation for interceptions, the authorisation procedure did not provide for sufficient safeguards against abuse. Firstly, in urgent cases communications could be intercepted without judicial authorisation for up to forty-eight hours. Secondly, in contrast to the CCrP, the OSAA did not provide for any requirements concerning the content of the interception authorisation. In particular, it did not require that the interception subject be clearly specified in the authorisation by name, telephone number or address (see, by contrast, the United Kingdom’s and Bulgarian legislation reproduced in Kennedy, cited above, §§ 41 and 160; and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 13). Nor did domestic law require that the authorisation specify which communications, or types of communications, should be recorded in order to limit the law-enforcement authorities’ discretion to determine the scope of surveillance measures. Russian law did not establish any special rules for surveillance in sensitive situations, for example where the confidentiality of journalists’ sources was at stake, or where surveillance concerned privileged lawyer-client communications.
- The applicant further submitted that the domestic law did not impose any requirement on the judge to verify the existence of a “reasonable suspicion” against the person concerned or to apply the “necessity” and “proportionality” test. The requesting authorities had no obligation to attach any supporting materials to the interception requests. Moreover, the OSAA expressly prohibited submission to the judge of certain materials – those containing information about undercover agents or police informers or about the organisation and tactics of operational-search measures – thereby making it impossible for the judge to effectively verify the existence of a “reasonable suspicion”. Russian law did not require that the judge should authorise interception only when it was impossible to achieve the legitimate aims by other less intrusive means.
- In support of his allegation that the judges did not verify the existence of a “reasonable suspicion” against the person concerned and did not apply the “necessity” and “proportionality” test, the applicant produced copies of analytical notes issued by three District Courts in different Russian regions (the Tambov region, the Tula region and the Dagestan Republic). The courts summarised their own case-law concerning operational-search measures involving interference with the privacy of communications or privacy of the home for the period from 2010 to 2013. One of the courts noted that it refused authorisation to carry out an operational-search measure if it did not appear on the list of operational-search measures in the OSAA, if the request for authorisation was not signed by a competent official or was not reasoned, or if the case fell under statutory restrictions on the use of that measure (for example, relating to the person’s status or to the nature of the offence). Authorisation was given if all of the above conditions were met. Another court stated that authorisation could also be refused if the request was insufficiently reasoned, that is, if it did not contain sufficient information permitting the judge to ascertain that the measure was lawful and justified. The third court stated that it granted authorisation if that was requested by the law-enforcement authorities. It never refused a request for authorisation. All three courts considered that the request was sufficiently reasoned if it referred to the existence of information listed in section 8(2) of the OSAA (see paragraph 31 above). One of the courts noted that supporting materials were never attached to requests for authorisation; another court noted that some, but not all, of the requests were accompanied by supporting materials, while the third court stated that all requests were accompanied by supporting materials. In all three courts the judges never requested the law-enforcement authorities to submit additional supporting materials, such as materials confirming the grounds for the interception or proving that the telephone numbers to be tapped belonged to the person concerned. Two courts granted interception authorisations in respect of unidentified persons, one of them specifying that such authorisations only concerned collection of data from technical channels of communication. Such authorisations did not mention a specific person or a telephone number to be tapped, but authorised interception of all telephone communications in the area where a criminal offence had been committed. One court never gave such authorisations. Two courts noted that authorisations always indicated the duration for which the interception was authorised, while one court stated that the duration of interception was not indicated in the authorisations issued by it. Finally, none of the three courts had examined any complaints from persons whose communications had been intercepted.
- The applicant also produced official statistics by the Supreme Court for the period from 2009 to 2013. It could be seen from those statistics that in 2009 Russian courts granted 130,083 out of 132,821 requests under the CCrP and 245,645 out of 246,228 requests under the OSAA (99%). In 2010 the courts allowed 136,953 out of 140,372 interception requests under the CCrP and 276,682 out of 284,137 requests under the OSAA. In 2011 the courts allowed 140,047 out of 144,762 interception requests under the CCrP and 326,105 out of 329,415 requests under the OSAA. In 2012 they granted 156,751 out of 163,469 interception requests under the CCrP (95%) and 372,744 out of 376,368 requests under the OSAA (99%). In 2013 the courts allowed 178,149 out of 189,741 interception requests lodged under the CCrP (93%) and 416,045 out of 420,242 interception requests lodged under the OSAA (99%). The applicant drew the Court’s attention to the fact that the number of interception authorisations had almost doubled between 2009 and 2013. He also argued that the very high percentage of authorisations granted showed that the judges did not verify the existence of a “reasonable suspicion” against the interception subject and did not exercise careful and rigorous scrutiny. As a result interceptions were ordered in respect of vast numbers of people in situations where the information could have been obtained by other less intrusive means.
- The applicant concluded from the above that the authorisation procedure was defective and was therefore not capable of confining the use of secret surveillance measures to what was necessary in a democratic society.