- As regards safeguards against unauthorised interceptions, the applicant submitted that the law-enforcement authorities were not required under domestic law to show judicial authorisation to the communications service provider before obtaining access to a person’s communications. All judicial authorisations were classified documents, kept in the exclusive possession of law-enforcement authorities. An obligation to forward an interception authorisation to the communications service provider was mentioned only once in Russian law in connection with monitoring of communications-related data under the CCrP (see paragraph 48 above). The equipment the communications service providers had installed pursuant to the Orders issued by the Ministry of Communications, in particular the unpublished addendums to Order No. 70, allowed the law-enforcement authorities direct and unrestricted access to all mobile telephone communications of all users. The communications service providers also had an obligation under Order no. 538 to create databases storing for three years information about all subscribers and the services provided to them. The secret services had direct remote access to those databases. The manner in which the system of secret surveillance thus operated gave the security services and the police technical means to circumvent the authorisation procedure and to intercept any communications without obtaining prior judicial authorisation. The necessity to obtain prior judicial authorisation therefore arose only in those cases where the intercepted data had to be used as evidence in criminal proceedings.
- The applicant produced documents showing, in his view, that law-enforcement officials unlawfully intercepted telephone communications without prior judicial authorisation and disclosed the records to unauthorised persons. For example, he produced printouts from the Internet containing transcripts of the private telephone conversations of politicians. He also submitted news articles describing criminal proceedings against several high-ranking officers from the police technical department. The officers were suspected of unlawfully intercepting the private communications of politicians and businessmen in return for bribes from their political or business rivals. The news articles referred to witness statements to the effect that intercepting communications in return for bribes was a widespread practice and that anyone could buy a transcript of another person’s telephone conversations from the police.
- The Government submitted that any interception of telephone or other communications had to be authorised by a court. The court took a decision on the basis of a reasoned request by a law-enforcement authority. The burden of proof was on the requesting authority to justify the necessity of the interception measures. To satisfy that burden of proof, the requesting authorities enclosed with their request all relevant supporting materials, except materials containing information about undercover agents or police informers or about the organisation and tactics of operational-search measures. That exception was justified by the necessity to ensure the security and protection of undercover agents and police informers and their family members and was therefore compatible with the Convention.
- The Government further referred to the Plenary Supreme Court’s Ruling of 27 June 2013, which explained to the lower courts that any restrictions on human rights and freedoms had to be prescribed by law and be necessary in a democratic society, that is, proportionate to a legitimate aim. Courts were instructed to rely on established facts, verify the existence of relevant and sufficient reasons to justify a restriction on an individual’s right and balance the interests of the individual whose rights were restricted against the interests of other individuals, the State and society. The OSAA explicitly required the courts to give reasons for the decision to authorise interception. In line with the Constitutional Court’s decision of 8 February 2007 (see paragraph 42 above), the interception authorisation was to refer to the specific grounds for suspecting the person in respect of whom operational-search measures were requested of a criminal offence or of activities endangering national, military, economic or ecological security. In its decision of 2 October 2003 (see paragraph 41 above), the Constitutional Court also held that judges had an obligation to examine the materials submitted to them carefully and thoroughly.
- According to the Government, in practice, each interception authorisation specified the State agency which was responsible for performing the interception, the grounds for conducting the surveillance measures and the reasons why they were necessary, a reference to applicable legal provisions, the person whose communications were to be intercepted, the grounds for suspecting that person’s involvement in the commission of a specific criminal offence, that person’s telephone number or IMEI code, the period of time for which the authorisation was granted and other necessary information. In exceptional circumstances it was permissible to authorise the interception of communications of unidentified persons. As a rule, in such cases a judge authorised the collection of data from technical channels of communication in order to identify the persons present at a specific location at the time that a criminal offence was committed there. That practice was compatible with the principles established in the Court’s case-law, because in such cases the interception authorisation specified a single set of premises (locations) as the premises (locations) in respect of which the authorisation was ordered (they referred to Kennedy, cited above).
- Russian law permitted communications to be intercepted without prior judicial authorisation in cases of urgency. A judge had to be informed of any such case within twenty-four hours and judicial authorisation for continuing the interception had to be obtained within forty-eight hours. According to the Government, the judge had to examine the lawfulness of such interception even in those cases when it had already been discontinued. They referred to an appeal judgment of 13 December 2013, in a criminal case in which the Supreme Court declared inadmissible as evidence recordings of telephone conversations obtained under the urgent procedure without prior judicial authorisation. The Supreme Court had held that although a judge had been informed about the interception, no judicial decision on its lawfulness and necessity had ever been issued.
(vi) Supervision of the implementation of secret surveillance measures
- Regarding supervision of interceptions, the applicant argued at the outset that in Russia the effectiveness of any supervision was undermined by the absence of an obligation on the intercepting authorities to keep records of interceptions carried out by them. Moreover, Order no. 70 explicitly provided that information about interceptions could not be logged or recorded.
- The applicant further submitted that in Russia neither the judge who had issued the interception authorisation nor any other independent official qualified for judicial office had power to supervise its implementation, and in particular to review whether the surveillance remained within the scope determined by the interception authorisation and complied with various requirements contained in domestic law.
- Domestic law did not set out any procedures for the supervision of interceptions by the President, Parliament and the Government. They certainly had no powers to supervise the implementation of interception measures in specific cases.
- As regards supervision by the Prosecutor General and competent low-level prosecutors, they could not be considered independent because of their position within the criminal justice system and their prosecuting functions. In particular, prosecutors gave their approval to all interception requests lodged by investigators in the framework of criminal proceedings and participated in the related court hearings. They could then use the data obtained as a result of the interception in the framework of their prosecuting functions, in particular by presenting it as evidence during a trial. There was therefore a conflict of interest with the prosecutor performing the dual function of a party to a criminal case and an authority supervising interceptions.
- The applicant further submitted that the prosecutors’ supervisory functions were limited because certain materials, in particular those revealing the identity of undercover agents or the tactics, methods and means used by the security services, were outside the scope of their supervision. The prosecutors’ supervisory powers were also limited in the area of counter-intelligence, where inspections could be carried out only following an individual complaint. Given the secrecy of interception measures and the lack of any notification of the person concerned, such individual complaints were unlikely to be lodged, with the result that counter-intelligence-related surveillance measures de facto escaped any supervision by prosecutors. It was also significant that prosecutors had no power to cancel an interception authorisation, to discontinue unlawful interceptions or to order the destruction of unlawfully obtained data.
- Further, prosecutors’ biannual reports were not published or publicly discussed. The reports were classified documents and contained statistical information only. They did not contain any substantive analysis of the state of legality in the sphere of operational-search activities or any information about what breaches of law had been detected and what measures had been taken to remedy them. Moreover, the reports amalgamated together all types of operational-search activities, without separating interceptions from other measures.
- The Government submitted that supervision of operational-search activities, including interceptions of telephone communications, was exercised by the President, the Parliament and the Government. In particular, the President determined the national security strategy and appointed and dismissed the heads of all law-enforcement agencies. There was also a special department within the President’s Administration which supervised the activities of the law-enforcement agencies, including operational-search activities. That department consisted of officials from the Interior Ministry and the FSB who had the appropriate level of security clearance. Parliament participated in the supervision process by adopting and amending laws governing operational-search activities. It could also form committees and commissions and held parliamentary hearings on all issues, including those relating to operational-search activities, and could hear the heads of law-enforcement agencies if necessary. The Government adopted decrees and orders governing operational-search activities and allocated the budgetary funds to the law-enforcement agencies.
- Supervision was also exercised by the Prosecutor General and competent low-level prosecutors who were independent from the federal, regional and local authorities. The Prosecutor General and his deputies were appointed and dismissed by the Federation Council, the upper house of Parliament. Prosecutors were not entitled to lodge interception requests. Such requests could be lodged either by the State agency performing operational-search activities in the framework of the OSAA, or by the investigator in the framework of the CCrP. The prosecutor could not give any instructions to the investigator. In the course of a prosecutor’s inspection, the head of the intercepting agency had an obligation to submit all relevant materials to the prosecutor at his or her request and could be held liable for the failure to do so. The prosecutors responsible for supervision of operational-search activities submitted six-monthly reports to the Prosecutor General. The reports did not however analyse interceptions separately from other operational-search measures.
(vii) Notification of secret surveillance measures
- The applicant further submitted that Russian law did not provide that a person whose communications had been intercepted was to be notified before, during or after the interception. He conceded that it was acceptable not to notify the person before or during the interception, since the secrecy of the measure was essential to its efficacy. He argued, however, that such notification was possible after the interception had ended, “as soon as it could be made without jeopardising the purpose of the restriction” (he referred to Klass and Others, cited above). In Russia the person concerned was not notified at any point. He or she could therefore learn about the interception only if there was a leak or if criminal proceedings were opened against him or her, and the intercepted data were used in evidence.
- With regard to the possibility of obtaining access to the data collected in the course of interception, the applicant submitted that such access was possible only in very limited circumstances. If criminal proceedings had never been opened or if the charges had been dropped on other grounds than those listed in the OSAA, the person concerned was not entitled to have access. Furthermore, before obtaining access, the claimant had to prove that his or her communications had been intercepted. Given the secrecy of the surveillance measures and the lack of notification, such burden of proof was impossible to satisfy unless the information about the interception had been leaked. Even after satisfying all those preconditions, the person could only receive “information about the data collected” rather than obtain access to the data themselves. Finally, only information that did not contain State secrets could be disclosed. Given that under the OSAA all data collected in the course of operational-search activities constituted a State secret and the decision to declassify it belonged to the head of the intercepting authority, access to interception-related documents depended entirely on the intercepting authorities’ discretion.
- A refusal to grant access to the collected data could be appealed against to a court and the OSAA required the intercepting authorities to produce, at the judge’s request, “operational-search materials containing information about the data to which access [had been] refused”. It was significant that the intercepting authorities were required to submit “information about the data” rather than the data themselves. Materials containing information about undercover agents or police informers could not be submitted to the court and were thereby excluded from the scope of judicial review.
- The Government submitted that under Russian law, an individual subject to secret surveillance measures did not have to be informed of those measures at any point. The Constitutional Court held (see paragraph 40 above) that in view of the necessity to keep the surveillance measures secret, the principles of a public hearing and adversarial proceedings were not applicable to the interception authorisation proceedings. The person concerned was therefore not entitled to participate in the authorisation proceedings or to be informed about the decision taken.
- After the termination of the investigation the defendant was entitled to study all the materials in the criminal case-file, including the data obtained in the course of operational-search activities. Otherwise, in cases where the investigator decided not to open criminal proceedings against the interception subject or to discontinue the criminal proceedings on the ground that the alleged offence had not been committed or one or more elements of a criminal offence were missing, the interception subject was entitled to request and receive information about the data collected. A refusal to provide such information could be challenged before a court, which had power to order the disclosure of information if it considered the refusal to be ill-founded. The Government submitted a copy of the decision of 4 August 2009 by the Alekseyevskiy District Court of the Belgorod Region, ordering that the police provide, within one month, an interception subject with information about the data collected about him in the course of the interception “to the extent permitted by the requirements of confidentiality and with the exception of data which could enable State secrets to be disclosed”.
- The Government argued that Russian law was different from the Bulgarian law criticised by the Court in its judgment of Association for European Integration and Human Rights and Ekimdzhiev (cited above, § 91) because it provided for a possibility to declassify the interception materials and to grant the person concerned access to them. In support of that allegation they referred to the criminal conviction judgment of 11 July 2012 by the Zabaykalsk Regional Court. That judgment – a copy of which was not provided to the Court – relied, according to the Government, on a judicial decision authorising the interception of the defendant’s telephone communications which had been declassified and submitted to the trial judge at his request. The Government also referred to two further judgments – by the Presidium of the Krasnoyarsk Regional Court and the Presidium of the Supreme Court of the Mariy-El Republic – quashing by way of supervisory review judicial decisions authorising interception of communications. They did not submit copies of the judgments.
(viii) Available remedies
- The applicant submitted that the questions of notification of surveillance measures and of the effectiveness of remedies before the courts were inextricably linked, since there was in principle little scope for recourse to the courts by the individual concerned unless the latter was advised of the measures taken without his or her knowledge and was thus able to challenge their legality retrospectively (he referred to Weber and Saravia, cited above).
- The applicant argued that remedies available under Russian law were ineffective. As regards the possibility for the subject of surveillance to apply for judicial review of the measures applied, the burden of proof was on the claimant to demonstrate that his or her telephone had been tapped. However, since those monitored were not informed about the surveillance measures unless charged with a criminal offence, the burden of proof was impossible to satisfy. The copies of domestic judgments submitted by the Government concerned searches and seizures, that is, operative-search measures which were known to the person concerned (see paragraphs 220, 221 and 223 below). The applicant knew of no publicly available judicial decisions where an interception subject’s complaint about unlawful interception had been allowed. It was also significant that in none of the judgments produced by the Government had the domestic courts assessed the proportionality of the contested operative-search measures. The domestic proceedings brought by the applicant had also clearly demonstrated that remedies available under Russian law were ineffective. Moreover, in the case of Avanesyan v. Russia (no. 41152/06, 18 September 2014) the Court had already found that there were no effective remedies under Russian law to challenge operational-search measures.
- Lastly, the applicant submitted that an interception subject or the communications service providers could not challenge the ministerial orders governing secret interceptions of communications, because those orders were considered to be technical rather than legal in nature and were therefore not subject to judicial review, as demonstrated by the decisions mentioned in paragraph 161 above.
- The Government argued that in Russia a person claiming that his or her rights had been or were being violated by a State official performing operational-search activities was entitled to complain to the official’s superior, the prosecutor or a court, in accordance with section 5 of the OSAA (see paragraph 83 above).
- As explained by the Plenary Supreme Court, if the person concerned learned about the interception, he or she could apply to a court of general jurisdiction in accordance with the procedure established by Chapter 25 of the Code of Civil Procedure (see paragraph 92 above). According to the Government, a claimant did not have to prove that his or her right had been breached as a result of the interception measures. The burden of proof was on the intercepting authorities to show that the interception measures had been lawful and justified. Russian law provided that if a breach of the claimant’s rights was found by a court in civil proceedings, the court had to take measures to remedy the violation and compensate the damage (see paragraph 97 above). The Government submitted copies of two judicial decisions under Chapter 25 of the Code of Civil Procedure, declaring searches and seizures of objects or documents unlawful and ordering the police to take specific measures to remedy the violations.
- Furthermore, according to the Government, the interception subject was also entitled to lodge a supervisory-review complaint against the judicial decision authorising the interception, as explained by the Constitutional Court in its decision of 15 July 2008 (see paragraph 43 above). He or she was likewise entitled to lodge an appeal or a cassation appeal.
- If the interception was carried out in the framework of criminal proceedings, the person concerned could also lodge a complaint under Article 125 of the CCrP. The Government referred to the Supreme Court’s decision of 26 October 2010 quashing, by way of supervisory review, the lower courts’ decisions to declare inadmissible K.’s complaint under Article 125 of the CCrP about the investigator’s refusal to give her a copy of the judicial decision authorising interception of her communications. The Supreme Court held that her complaint was to be examined under Article 125 of the CCrP, despite the fact that she had been already convicted, and that she was entitled to receive a copy of the interception authorisation. The Government submitted copies of ten judicial decisions allowing complaints under Article 125 of the CCrP about unlawful searches and seizures of objects or documents. They also produced a copy of a judgment acquitting a defendant on appeal after finding that his conviction at first instance had been based on inadmissible evidence obtained as a result of an unlawful test purchase of drugs.
- The Government further submitted that the person concerned could apply for compensation under Article 1069 of the Civil Code (see paragraph 102 above). That Article provided for compensation of pecuniary and non-pecuniary damage caused to an individual or a legal entity by unlawful actions by State and municipal bodies and officials, provided that the body’s or the official’s fault had been established. Compensation for non-pecuniary damage was determined in accordance with the rules set out in Articles 1099 – 1101 of the Civil Code (see paragraphs 103 and 104 above). The Government highlighted, in particular, that non-pecuniary damage caused through dissemination of information which was damaging to honour, dignity or reputation could be compensated irrespective of the tortfeasor’s fault. The Government submitted a copy of a decision of 9 December 2013 by the Vichuga Town Court of the Ivanovo Region, awarding compensation in respect of non-pecuniary damage for unlawful interception of a suspect’s telephone conversations after the recordings obtained as a result of that interception had been declared inadmissible as evidence by the trial court. The Government also submitted a judicial decision awarding compensation for an unlawful search and seizure of documents and a judicial decision awarding compensation to an acquitted defendant for unlawful prosecution.
- Russian law also provided for criminal remedies for abuse of power (Articles 285 and 286 of the Criminal Code), unauthorised collection or dissemination of information about a person’s private and family life (Article 137 of the Criminal Code) and breach of citizens’ right to privacy of communications (Article 138 of the Criminal Code) (see paragraphs 19 to 22 above). The Government referred in that connection to the Supreme Court’s judgment of 24 October 2002, convicting a certain E.S. of an offence under Article 138 of the Criminal Code for inciting an official to supply him with the names of the owners of several telephone numbers and to provide him with call detail records in respect of those telephone numbers. They also referred to the Supreme Court’s judgment of 15 March 2007, convicting a customs official of an offence under Article 138 of the Criminal Code for intercepting the telephone communications of a certain P. They submitted copies of two more conviction judgments under Article 138 of the Criminal Code: the first conviction concerned the selling of espionage equipment, namely pens and watches with in-build cameras, while the second conviction concerned the covert hacking of a communication provider’s database in order to obtain the users’ call detail records.
- Lastly, the Government argued that remedies were also available in Russian law to challenge the alleged insufficiency of safeguards against abuse in the sphere of interception of communications (see paragraph 156 above).
- The Government submitted that the applicant had not used any of the remedies available to him under Russian law and described above. In particular, he had chosen to bring judicial proceedings against mobile network operators, the Ministry of Communications being joined only as a third party to the proceedings.
(b) The Court’s assessment
(i) General principles
- The Court reiterates that any interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which paragraph 2 of Article 8 refers and is necessary in a democratic society in order to achieve any such aim (see Kennedy, cited above, § 130).
- The Court notes from its well established case-law that the wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus meet quality requirements: it must be accessible to the person concerned and foreseeable as to its effects (see, among many other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V; S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 95, ECHR 2008; and Kennedy, cited above, § 151).
- The Court has held on several occasions that the reference to “foreseeability” in the context of interception of communications cannot be the same as in many other fields. Foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident. It is therefore essential to have clear, detailed rules on interception of telephone conversations, especially as the technology available for use is continually becoming more sophisticated. The domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see Malone, cited above, § 67; Leander v. Sweden, 26 March 1987, § 51, Series A no. 116; Huvig v. France, 24 April 1990, § 29, Series A no. 176-B; Valenzuela Contreras v. Spain, 30 July 1998, § 46, Reports of Judgments and Decisions 1998-V; Rotaru, cited above, § 55; Weber and Saravia, cited above, § 93; and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 75).
- Moreover, since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see, among other authorities, Malone, cited above, § 68; Leander, cited above, § 51; Huvig, cited above, § 29; and Weber and Saravia, cited above, § 94).
- In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in law in order to avoid abuses of power: the nature of offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or destroyed (see Huvig, cited above, § 34; Amann v. Switzerland [GC], no. 27798/95, §§ 56 – 58, ECHR 2000-II; Valenzuela Contreras, cited above, § 46; Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003; Weber and Saravia, cited above, § 95; and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 76).
- As to the question whether an interference was “necessary in a democratic society” in pursuit of a legitimate aim, the Court has acknowledged that, when balancing the interest of the respondent State in protecting its national security through secret surveillance measures against the seriousness of the interference with an applicant’s right to respect for his or her private life, the national authorities enjoy a certain margin of appreciation in choosing the means for achieving the legitimate aim of protecting national security. However, this margin is subject to European supervision embracing both legislation and decisions applying it. In view of the risk that a system of secret surveillance set up to protect national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there are adequate and effective guarantees against abuse. The assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society” (see Klass and Others, cited above, §§ 49, 50 and 59; Weber and Saravia, cited above, § 106; Kvasnica v. Slovakia, no. 72094/01, § 80, 9 June 2009; and Kennedy, cited above, §§ 153 and 154).
- Review and supervision of secret surveillance measures may come into play at three stages: when the surveillance is first ordered, while it is being carried out, or after it has been terminated. As regards the first two stages, the very nature and logic of secret surveillance dictate that not only the surveillance itself but also the accompanying review should be effected without the individual’s knowledge. Consequently, since the individual will necessarily be prevented from seeking an effective remedy of his or her own accord or from taking a direct part in any review proceedings, it is essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding his or her rights. In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 § 2, are not to be exceeded. In a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge, judicial control offering the best guarantees of independence, impartiality and a proper procedure (see Klass and Others, cited above, §§ 55 and 56).
- As regards the third stage, after the surveillance has been terminated, the question of subsequent notification of surveillance measures is inextricably linked to the effectiveness of remedies before the courts and hence to the existence of effective safeguards against the abuse of monitoring powers. There is in principle little scope for recourse to the courts by the individual concerned unless the latter is advised of the measures taken without his or her knowledge and thus able to challenge their legality retrospectively (see Klass and Others, cited above, § 57, and Weber and Saravia, cited above, § 135) or, in the alternative, unless any person who suspects that his or her communications are being or have been intercepted can apply to courts, so that the courts’ jurisdiction does not depend on notification to the interception subject that there has been an interception of his communications (see Kennedy, cited above, § 167).
(ii) Application of the general principles to the present case
- The Court notes that it has found there to be an interference under Article 8 § 1 in respect of the applicant’s general complaint about Russian legislation governing covert interception of mobile telephone communications. Accordingly, in its examination of the justification for the interference under Article 8 § 2, the Court is required to examine whether the contested legislation itself is in conformity with the Convention.
- In cases where the legislation permitting secret surveillance is contested before the Court, the lawfulness of the interference is closely related to the question whether the “necessity” test has been complied with and it is therefore appropriate for the Court to address jointly the “in accordance with the law” and “necessity” requirements (see Kennedy, cited above, § 155; see also Kvasnica, cited above, § 84). The “quality of law” in this sense implies that the domestic law must not only be accessible and foreseeable in its application, it must also ensure that secret surveillance measures are applied only when “necessary in a democratic society”, in particular by providing for adequate and effective safeguards and guarantees against abuse.
- It has not been disputed by the parties that interceptions of mobile telephone communications have a basis in the domestic law. They are governed, in particular, by the CCrP and the OSAA, as well as by the Communications Act and the Orders issued by the Ministry of Communications. Furthermore, the Court considers it clear that the surveillance measures permitted by Russian law pursue the legitimate aims of the protection of national security and public safety, the prevention of crime and the protection of the economic well-being of the country (see paragraph 26 above). It therefore remains to be ascertained whether the domestic law is accessible and contains adequate and effective safeguards and guarantees to meet the requirements of “foreseeability” and “necessity in a democratic society”.
- The Court will therefore assess in turn the accessibility of the domestic law, the scope and duration of the secret surveillance measures, the procedures to be followed for storing, accessing, examining, using, communicating and destroying the intercepted data, the authorisation procedures, the arrangements for supervising the implementation of secret surveillance measures, any notification mechanisms and the remedies provided for by national law.
Accessibility of domestic law
- It is common ground between the parties that almost all legal provisions governing secret surveillance – including the CCrP, the OSAA, the Communications Act and the majority of the Orders issued by the Ministry of Communications – have been officially published and are accessible to the public. The parties disputed, however, whether the addendums to Order no. 70 by the Ministry of Communications met the requirements of accessibility.
- The Court observes that the addendums to Order no. 70 have never been published in a generally accessible official publication, as they were considered to be technical in nature (see paragraph 128 above).
- The Court accepts that the addendums to Order no. 70 mainly describe the technical requirements for the interception equipment to be installed by communications service providers. At the same time, by requiring that the equipment at issue must ensure that the law-enforcement authorities have direct access to all mobile telephone communications of all users and must not log or record information about interceptions initiated by the law-enforcement authorities (see paragraphs 115 to 122 above), the addendums to Order No. 70 are capable of affecting the users’ right to respect for their private life and correspondence. The Court therefore considers that they must be accessible to the public.
- The publication of the Order in the Ministry of Communications’ official magazine SvyazInform, distributed through subscription, made it available only to communications specialists rather than to the public at large. At the same time, the Court notes that the text of the Order, with the addendums, can be accessed through a privately-maintained internet legal database, which reproduced it from the publication in SvyazInform (see paragraph 115 above). The Court finds the lack of a generally accessible official publication of Order no. 70 regrettable. However, taking into account the fact that it has been published in an official ministerial magazine, combined with the fact that it can be accessed by the general public through an internet legal database, the Court does not find it necessary to pursue further the issue of the accessibility of domestic law. It will concentrate instead on the requirements of “foreseeability” and “necessity”.
Scope of application of secret surveillance measures
- The Court reiterates that the national law must define the scope of application of secret surveillance measures by giving citizens an adequate indication as to the circumstances in which public authorities are empowered to resort to such measures – in particular by clearly setting out the nature of the offences which may give rise to an interception order and a definition of the categories of people liable to have their telephones tapped (see paragraph 231 above).
- As regards the nature of the offences, the Court emphasises that the condition of foreseeability does not require States to set out exhaustively, by name, the specific offences which may give rise to interception. However, sufficient detail should be provided on the nature of the offences in question (see Kennedy, cited above, § 159). Both the OSAA and the CCrP provide that telephone and other communications may be intercepted in connection with an offence of medium severity, a serious offence or an especially serious criminal offence – that is, an offence for which the Criminal Code prescribes a maximum penalty of more than three years’ imprisonment – which has been already committed, is ongoing or being plotted (see paragraphs 31 to 33 above). The Court considers that the nature of the offences which may give rise to an interception order is sufficiently clear. At the same time it notes with concern that Russian law allows secret interception of communications in respect of a very wide range of criminal offences, including for example, as pointed out by the applicant, pickpocketing (see paragraph 182 above; see also, for similar reasoning, Iordachi and Others, cited above, §§ 43 and 44).
- The Court further notes that interceptions may be ordered not only in respect of a suspect or an accused, but also in respect of a person who may have information about an offence or may have other information relevant to the criminal case (see paragraph 32 above). The Court has earlier found that interception measures in respect of a person who was not suspected of any offence but could possess information about such an offence might be justified under Article 8 of the Convention (see Greuter, cited above). At the same time, the Court notes the absence of any clarifications in Russian legislation or established case-law as to how the terms “a person who may have information about a criminal offence” and “a person who may have information relevant to the criminal case” are to be applied in practice (see, for similar reasoning, Iordachi and Others, cited above, § 44).
- The Court also observes that in addition to interceptions for the purposes of preventing or detecting criminal offences, the OSAA also provides that telephone or other communications may be intercepted following the receipt of information about events or activities endangering Russia’s national, military, economic or ecological security (see paragraph 31 above). Which events or activities may be considered as endangering such types of security interests is nowhere defined in Russian law.
- The Court has previously found that the requirement of “foreseeability” of the law does not go so far as to compel States to enact legal provisions listing in detail all conduct that may prompt a decision to subject an individual to secret surveillance on “national security” grounds. By the nature of things, threats to national security may vary in character and may be unanticipated or difficult to define in advance (see Kennedy, cited above, § 159). At the same time, the Court has also emphasised that in matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see Liu v. Russia, no. 42086/05, § 56, 6 December 2007, with further references).
- It is significant that the OSAA does not give any indication of the circumstances under which an individual’s communications may be intercepted on account of events or activities endangering Russia’s national, military, economic or ecological security. It leaves the authorities an almost unlimited degree of discretion in determining which events or acts constitute such a threat and whether that threat is serious enough to justify secret surveillance, thereby creating possibilities for abuse (see, for similar reasoning, Iordachi and Others, cited above, § 46).
- That being said, the Court does not lose sight of the fact that prior judicial authorisation for interceptions is required in Russia. Such judicial authorisation may serve to limit the law-enforcement authorities’ discretion in interpreting the broad terms of “a person who may have information about a criminal offence”, “a person who may have information relevant to the criminal case”, and “events or activities endangering Russia’s national, military, economic or ecological security” by following an established judicial interpretation of the terms or an established practice to verify whether sufficient reasons for intercepting a specific individual’s communications exist in each case. The Court accepts that the requirement of prior judicial authorisation constitutes an important safeguard against arbitrariness. The effectiveness of that safeguard will be examined below.
The duration of secret surveillance measures