- The Court has held that it is not unreasonable to leave the overall duration of interception to the discretion of the relevant domestic authorities which have competence to issue and renew interception warrants, provided that adequate safeguards exist, such as a clear indication in the domestic law of the period after which an interception warrant will expire, the conditions under which a warrant can be renewed and the circumstances in which it must be cancelled (see Kennedy, cited above, § 161; see also Klass and Others, cited above, 52, and Weber and Saravia, cited above, § 98).
- As regards the first safeguard, both the CCrP and the OSAA provide that interceptions may be authorised by a judge for a period not exceeding six months (see paragraphs 38 and 47 above). There is therefore a clear indication in the domestic law of the period after which an interception authorisation will expire. Secondly, the conditions under which an authorisation can be renewed are also clearly set out in law. In particular, under both the CCrP and the OSAA a judge may extend interception for a maximum of six months at a time, after a fresh examination of all the relevant materials (id.). However, as regards the third safeguard concerning the circumstances in which the interception must be discontinued, the Court notes that the requirement to discontinue interception when no longer necessary is mentioned in the CCrP only. Regrettably, the OSAA does not contain such a requirement (id.). In practice, this means that interceptions in the framework of criminal proceedings are attended by more safeguards than interceptions conducted outside such a framework, in particular in connection with «events or activities endangering national, military, economic or ecological security».
- The Court concludes from the above that while Russian law contains clear rules on the duration and renewal of interceptions providing adequate safeguards against abuse, the OSAA provisions on discontinuation of the surveillance measures do not provide sufficient guarantees against arbitrary interference.
Procedures to be followed for storing, accessing, examining, using, communicating and destroying the intercepted data
- Russian law stipulates that data collected as a result of secret surveillance measures constitute a State secret and are to be sealed and stored under conditions excluding any risk of unauthorised access. They may be disclosed to those State officials who genuinely need the data for the performance of their duties and have the appropriate level of security clearance. Steps must be taken to ensure that only the amount of information needed by the recipient to perform his or her duties is disclosed, and no more. The official responsible for ensuring that the data are securely stored and inaccessible to those without the necessary security clearance is clearly defined (see paragraphs 51 to 57 above). Domestic law also sets out the conditions and procedures for communicating intercepted data containing information about a criminal offence to the prosecuting authorities. It describes, in particular, the requirements for their secure storage and the conditions for their use as evidence in criminal proceedings (see paragraphs 58 to 64 above). The Court is satisfied that Russian law contains clear rules governing the storage, use and communication of intercepted data, making it possible to minimise the risk of unauthorised access or disclosure (see, for similar reasoning, Kennedy, cited above, §§ 62 and 63).
- As far as the destruction of intercept material is concerned, domestic law provides that intercept material must be destroyed after six months of storage, if the person concerned has not been charged with a criminal offence. If the person has been charged with a criminal offence, the trial judge must make a decision, at the end of the criminal proceedings, on the further storage and destruction of the intercept material used in evidence (see paragraphs 65 and 66 above).
- As regards the cases where the person concerned has not been charged with a criminal offence, the Court is not convinced by the applicant’s argument that Russian law permits storage of the intercept material beyond the statutory time-limit (see paragraph 188 above). It appears that the provision referred to by the applicant does not apply to the specific case of storage of data collected as a result of interception of communications. The Court considers the six-month storage time-limit set out in Russian law for such data reasonable. At the same time, it deplores the lack of a requirement to destroy immediately any data that are not relevant to the purpose for which they has been obtained (compare Klass and Others, cited above, § 52, and Kennedy, cited above, § 162). The automatic storage for six months of clearly irrelevant data cannot be considered justified under Article 8.
- Furthermore, as regards the cases where the person has been charged with a criminal offence, the Court notes with concern that Russian law allows unlimited discretion to the trial judge to store or to destroy the data used in evidence after the end of the trial (see paragraph 66 above). Russian law does not give citizens any indication as to the circumstances in which the intercept material may be stored after the end of the trial. The Court therefore considers that the domestic law is not sufficiently clear on this point.
Authorisation of interceptions
- The Court will take into account a number of factors in assessing whether the authorisation procedures are capable of ensuring that secret surveillance is not ordered haphazardly, irregularly or without due and proper consideration. These factors include, in particular, the authority competent to authorise the surveillance, its scope of review and the content of the interception authorisation.
- As regards the authority competent to authorise the surveillance, authorising of telephone tapping by a non-judicial authority may be compatible with the Convention (see, for example, Klass and Others, cited above, § 51; Weber and Saravia, cited above, § 115; and Kennedy, cited above, § 31), provided that that authority is sufficiently independent from the executive (see Dumitru Popescu v. Romania (no. 2), no. 71525/01, § 71, 26 April 2007).
- Russian law contains an important safeguard against arbitrary or indiscriminate secret surveillance. It dictates that any interception of telephone or other communications must be authorised by a court (see paragraphs 34 and 44 above). The law-enforcement agency seeking authorisation for interception must submit a reasoned request to that effect to a judge, who may require the agency to produce supporting materials (see paragraphs 37 and 46 above). The judge must give reasons for the decision to authorise interceptions (see paragraphs 38 and 44 above).
- Turning now to the authorisation authority’s scope of review, the Court reiterates that it must be capable of verifying the existence of a reasonable suspicion against the person concerned, in particular, whether there are factual indications for suspecting that person of planning, committing or having committed criminal acts or other acts that may give rise to secret surveillance measures, such as, for example, acts endangering national security. It must also ascertain whether the requested interception meets the requirement of «necessity in a democratic society», as provided by Article 8 § 2 of the Convention, including whether it is proportionate to the legitimate aims pursued, by verifying, for example whether it is possible to achieve the aims by less restrictive means (see Klass and Others, cited above, § 51; Association for European Integration and Human Rights and Ekimdzhiev, cited above, §§ 79 and 80; Iordachi and Others, cited above, § 51; and Kennedy, cited above, §§ 31 and 32).
- The Court notes that in Russia judicial scrutiny is limited in scope. Thus, materials containing information about undercover agents or police informers or about the organisation and tactics of operational-search measures may not be submitted to the judge and are therefore excluded from the court’s scope of review (see paragraph 37 above). The Court considers that the failure to disclose the relevant information to the courts deprives them of the power to assess whether there is a sufficient factual basis to suspect the person in respect of whom operational-search measures are requested of a criminal offence or of activities endangering national, military, economic or ecological security (see, mutatis mutandis, Liu, cited above, §§ 59 — 63). The Court has earlier found that there are techniques that can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice (see, mutatis mutandis, Chahal v. the United Kingdom, 15 November 1996, § 131, Reports of Judgments and Decisions 1996-V).
- Furthermore, the Court observes that in Russia the judges are not instructed, either by the CCrP or by the OSAA, to verify the existence of a «reasonable suspicion» against the person concerned or to apply the «necessity» and «proportionality» test». At the same time, the Court notes that the Constitutional Court has explained in its decisions that the burden of proof is on the requesting agency to show that interception is necessary and that the judge examining an interception request should verify the grounds for that measure and grant authorisation only if he or she is persuaded that interception is lawful, necessary and justified. The Constitutional Court has also held that the judicial decision authorising interception should contain reasons and refer to specific grounds for suspecting that a criminal offence has been committed, or is ongoing, or is being plotted or that activities endangering national, military, economic or ecological security are being carried out, as well as that the person in respect of whom interception is requested is involved in these criminal or otherwise dangerous activities (see paragraphs 40 to 42 above). The Constitutional Court has therefore recommended, in substance, that when examining interception authorisation requests Russian courts should verify the existence of a reasonable suspicion against the person concerned and should authorise interception only if it meets the requirements of necessity and proportionality.
- However, the Court observes that the domestic law does not explicitly require the courts of general jurisdiction to follow the Constitutional Court’s opinion as to how a legislative provision should be interpreted if such opinion has been expressed in a decision rather than a judgment (see paragraph 106 above). Indeed, the materials submitted by the applicant show that the domestic courts do not always follow the above-mentioned recommendations of the Constitutional Court, all of which were contained in decisions rather than in judgments. Thus, it transpires from the analytical notes issued by District Courts that interception requests are often not accompanied by any supporting materials, that the judges of these District Courts never request the interception agency to submit such materials and that a mere reference to the existence of information about a criminal offence or activities endangering national, military, economic or ecological security is considered to be sufficient for the authorisation to be granted. An interception request is rejected only if it is not signed by a competent person, contains no reference to the offence in connection with which interception is to be ordered, or concerns a criminal offence in respect of which interception is not permitted under domestic law (see paragraph 193 above). Thus, the analytical notes issued by District Courts, taken together with the statistical information for the period from 2009 to 2013 provided by the applicant (see paragraph 194 above), indicate that in their everyday practice Russian courts do not verify whether there is a «reasonable suspicion» against the person concerned and do not apply the «necessity» and «proportionality» test.
- Lastly, as regards the content of the interception authorisation, it must clearly identify a specific person to be placed under surveillance or a single set of premises as the premises in respect of which the authorisation is ordered. Such identification may be made by names, addresses, telephone numbers or other relevant information (see Klass and Others, cited above, § 51; Liberty and Others, cited above, §§ 64 and 65; Dumitru Popescu (no. 2), cited above, § 78; Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 80; and Kennedy, cited above, § 160).
- The Court observes that the CCrP requires that a request for interception authorisation must clearly mention a specific person whose communications are to be intercepted, as well as the duration of the interception measure (see paragraph 46 above). By contrast, the OSAA does not contain any requirements either with regard to the content of the request for interception or to the content of the interception authorisation. As a result, courts sometimes grant interception authorisations which do not mention a specific person or telephone number to be tapped, but authorise interception of all telephone communications in the area where a criminal offence has been committed. Some authorisations do not mention the duration for which interception is authorised (see paragraph 193 above). The Court considers that such authorisations, which are not clearly prohibited by the OSAA, grant a very wide discretion to the law-enforcement authorities as to which communications to intercept, and for how long.
- The Court further notes that in cases of urgency it is possible to intercept communications without prior judicial authorisation for up to forty-eight hours. A judge must be informed of any such case within twenty-four hours from the commencement of the interception. If no judicial authorisation has been issued within forty-eight hours, the interception must be stopped immediately (see paragraph 35 above). The Court has already examined the «urgency» procedure provided for in Bulgarian law and found that it was compatible with the Convention (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, §§ 16 and 82). However, in contrast to the Bulgarian provision, the Russian «urgent procedure» does not provide for sufficient safeguards to ensure that it is used sparingly and only in duly justified cases. Thus, although in the criminal sphere the OSAA limits recourse to the urgency procedure to cases where there exists an immediate danger that a serious or especially serious offence may be committed, it does not contain any such limitations in respect of secret surveillance in connection with events or activities endangering national, military, economic or ecological security. The domestic law does not limit the use of the urgency procedure to cases involving an immediate serious danger to national, military, economic or ecological security. It leaves the authorities an unlimited degree of discretion in determining in which situations it is justified to use the non-judicial urgent procedure, thereby creating possibilities for abusive recourse to it (see, by contrast, Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 16). Furthermore, although Russian law requires that a judge be immediately informed of each instance of urgent interception, his or her power is limited to authorising the extension of the interception measure beyond forty-eight hours. He or she has no power to assess whether the use of the urgent procedure was justified or to decide whether the material obtained during the previous forty-eight hours is to be kept or destroyed (see, by contrast, Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 16). Russian law does therefore not provide for an effective judicial review of the urgency procedure.
- In view of the above considerations the Court considers that the authorisation procedures provided for by Russian law are not capable of ensuring that secret surveillance measures are not ordered haphazardly, irregularly or without due and proper consideration.
The authorities’ access to communications
- The Court takes note of the applicant’s argument that the security services and the police have the technical means to intercept mobile telephone communications without obtaining judicial authorisation, as they have direct access to all communications and as their ability to intercept the communications of a particular individual or individuals is not conditional on providing an interception authorisation to the communications service provider.
- The Court considers that the requirement to show an interception authorisation to the communications service provider before obtaining access to a person’s communications is one of the important safeguards against abuse by the law-enforcement authorities, ensuring that proper authorisation is obtained in all cases of interception. In Russia the law-enforcement authorities are not required under domestic law to show the judicial authorisation to the communications service provider before obtaining access to a person’s communications (see, by contrast, the EU Council Resolution cited in paragraph 145 above), except in connection with the monitoring of communications-related data under the CCrP (see paragraph 48 above). Indeed, pursuant to Orders issued by the Ministry of Communications, in particular the addendums to Order No. 70, communications service providers must install equipment giving the law-enforcement authorities direct access to all mobile telephone communications of all users (see paragraphs 115 to 122 above). The communications service providers also have an obligation under Order no. 538 to create databases storing information about all subscribers, and the services provided to them, for three years; the secret services have direct remote access to those databases (see paragraphs 132 and 133 above). The law-enforcement authorities thus have direct access to all mobile telephone communications and related communications data.
- The Court considers that the manner in which the system of secret surveillance operates in Russia gives the security services and the police technical means to circumvent the authorisation procedure and to intercept any communications without obtaining prior judicial authorisation. Although the possibility of improper action by a dishonest, negligent or over-zealous official can never be completely ruled out whatever the system (see Klass and Others, cited above, § 59), the Court considers that a system, such as the Russian one, which enables the secret services and the police to intercept directly the communications of each and every citizen without requiring them to show an interception authorisation to the communications service provider, or to anyone else, is particularly prone to abuse. The need for safeguards against arbitrariness and abuse appears therefore to be particularly great.
- The Court will therefore examine with particular attention whether the supervision arrangements provided by Russian law are capable of ensuring that all interceptions are performed lawfully on the basis of proper judicial authorisation.
Supervision of the implementation of secret surveillance measures
- The Court notes at the outset that Order no. 70 requires that the equipment installed by the communications service providers does not record or log information about interceptions (see paragraph 120 above). The Court has found that an obligation on the intercepting agencies to keep records of interceptions is particularly important to ensure that the supervisory body had effective access to details of surveillance activities undertaken (see Kennedy, cited above, § 165). The prohibition on logging or recording interceptions set out in Russian law makes it impossible for the supervising authority to discover interceptions carried out without proper judicial authorisation. Combined with the law-enforcement authorities’ technical ability, pursuant to the same Order no. 70, to intercept directly all communications, this provision renders any supervision arrangements incapable of detecting unlawful interceptions and therefore ineffective.
- As regards supervision of interceptions carried out on the basis of proper judicial authorisations, the Court will examine whether the supervision arrangements existing in Russia are capable of ensuring that the statutory requirements relating to the implementation of the surveillance measures, the storage, access to, use, processing, communication and destruction of intercept material are routinely respected.
- A court which has granted authorisation for interception has no competence to supervise its implementation. It is not informed of the results of the interceptions and has no power to review whether the requirements of the decision granting authorisation were complied with. Nor do Russian courts in general have competence to carry out the overall supervision of interceptions. Judicial supervision is limited to the initial authorisation stage. Subsequent supervision is entrusted to the President, Parliament, the Government, the Prosecutor General and competent lower-level prosecutors.
- The Court has earlier found that, although it is in principle desirable to entrust supervisory control to a judge, supervision by non-judicial bodies may be considered compatible with the Convention, provided that the supervisory body is independent of the authorities carrying out the surveillance, and is vested with sufficient powers and competence to exercise an effective and continuous control (see Klass and Others, cited above, § 56).
- As far as the President, Parliament and the Government are concerned, Russian law does not set out the manner in which they may supervise interceptions. There are no publicly available regulations or instructions describing the scope of their review, the conditions under which it may be carried out, the procedures for reviewing the surveillance measures or for remedying the breaches detected (see, for similar reasoning, Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 88).
- As regards supervision of interceptions by prosecutors, the Court observes that the national law sets out the scope of, and the procedures for, prosecutors’ supervision of operational-search activities (see paragraphs 69 to 80 above). It stipulates that prosecutors may carry out routine and ad hoc inspections of agencies performing operational-search activities and are entitled to study the relevant documents, including confidential ones. They may take measures to stop or remedy the detected breaches of law and to bring those responsible to liability. They must submit semi-annual reports detailing the results of the inspections to the Prosecutor General’s Office. The Court accepts that a legal framework exists which provides, at least in theory, for some supervision by prosecutors of secret surveillance measures. It must be next examined whether the prosecutors are independent of the authorities carrying out the surveillance, and are vested with sufficient powers and competence to exercise effective and continuous control.
- As to the independence requirement, in previous cases the Court has taken into account the manner of appointment and the legal status of the members of the supervisory body. In particular, it found sufficiently independent the bodies composed of members of parliament of both the majority and the opposition, or of persons qualified to hold judicial office, appointed either by parliament or by the Prime Minister (see, for example, Klass and Others, cited above, §§ 21 and 56; Weber and Saravia, cited above, §§ 24, 25 and 117; Leander, cited above, § 65; (see L. v. Norway, no. 13564/88, Commission decision of 8 June 1990); and Kennedy, cited above, §§ 57 and 166). In contrast, a Minister of Internal Affairs — who not only was a political appointee and a member of the executive, but was directly involved in the commissioning of special means of surveillance — was found to be insufficiently independent (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, §§ 85 and 87). Similarly, a Prosecutor General and competent lower-level prosecutors were also found to be insufficiently independent (see Iordachi and Others, cited above, § 47).
- In contrast to the supervisory bodies cited above, in Russia prosecutors are appointed and dismissed by the Prosecutor General after consultation with the regional executive authorities (see paragraph 70 above). This fact may raise doubts as to their independence from the executive.
- Furthermore, it is essential that any role prosecutors have in the general protection of human rights does not give rise to any conflict of interest (see Menchinskaya v. Russia, no. 42454/02, §§ 19 and 38, 15 January 2009). The Court observes that prosecutor’s offices do not specialise in supervision of interceptions (see paragraph 71 above). Such supervision is only one part of their broad and diversified functions, which include prosecution and supervision of criminal investigations. In the framework of their prosecuting functions, prosecutors give their approval to all interception requests lodged by investigators in the framework of criminal proceedings (see paragraph 44 above). This blending of functions within one prosecutor’s office, with the same office giving approval to requests for interceptions and then supervising their implementation, may also raise doubts as to the prosecutors’ independence (see, by way of contrast, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 215, 10 January 2012, concerning supervision by prosecutors of detention facilities, where it was found that prosecutors complied with the requirement of independence the penitentiary system’s bodies).
- Turning now to the prosecutors’ powers and competences, the Court notes that it is essential that the supervisory body has access to all relevant documents, including closed materials and that all those involved in interception activities have a duty to disclose to it any material it required (see Kennedy, cited above, § 166). Russian law stipulates that prosecutors are entitled to study relevant documents, including confidential ones. It is however important to note that information about the security services’ undercover agents, and about the tactics, methods and means used by them, is outside the scope of prosecutors’ supervision (see paragraph 74 above). The scope of their supervision is therefore limited. Moreover, interceptions performed by the FSB in the sphere of counterintelligence may be inspected only following an individual complaint (see paragraph 76 above). As individuals are not notified of interceptions (see paragraph 81 above and paragraph 289 below), it is unlikely that such a complaint will ever be lodged. As a result, surveillance measures related to counter-intelligence de facto escape supervision by prosecutors.
- The supervisory body’s powers with respect to any breaches detected are also an important element for the assessment of the effectiveness of its supervision (see, for example, Klass and Others, cited above, § 53, where the intercepting agency was required to terminate the interception immediately if the G10 Commission found it illegal or unnecessary; and Kennedy, cited above, § 168, where any intercept material was to be destroyed as soon as the Interception of Communications Commissioner discovered that the interception was unlawful). The Court is satisfied that prosecutors have certain powers with respect to the breaches detected by them. Thus, they may take measures to stop or remedy the detected breaches of law and to bring those responsible to liability (see paragraph 79 above). However, there is no specific provision requiring destruction of the unlawfully obtained intercept material (see Kennedy, cited above, § 168).
- The Court must also examine whether the supervisory body’s activities are open to public scrutiny (see, for example, L. v. Norway, cited above, where the supervision was performed by the Control Committee, which reported annually to the Government and whose reports were published and discussed by Parliament; Kennedy, cited above, § 166, where the supervision of interceptions was performed by the Interception of Communications Commissioner, who reported annually to the Prime Minister, his report being a public document laid before Parliament; and, by contrast, Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 88, where the Court found fault with the system where neither the Minister of Internal Affairs nor any other official was required to report regularly to an independent body or to the general public on the overall operation of the system or on the measures applied in individual cases). In Russia, prosecutors must submit semi-annual reports detailing the results of the inspections to the Prosecutor General’s Office. However, these reports concern all types of operational-search measures, amalgamated together, without interceptions being treated separately from other measures. Moreover, the reports contain only statistical information about the number of inspections of operational-search measures carried out and the number of breaches detected, without specifying the nature of the breaches or the measures taken to remedy them. It is also significant that the reports are confidential documents. They are not published or otherwise accessible to the public (see paragraph 80 above). It follows that in Russia supervision by prosecutors is conducted in a manner which is not open to public scrutiny and knowledge.
- Lastly, the Court notes that it is for the Government to illustrate the practical effectiveness of the supervision arrangements with appropriate examples (see, mutatis mutandis, Ananyev and Others, cited above, §§ 109 and 110). However, the Russian Government did not submit any inspection reports or decisions by prosecutors ordering the taking of measures to stop or remedy a detected breach of law. It follows that the Government did not demonstrate that prosecutors’ supervision of secret surveillance measures is effective in practice. The Court also takes note in this connection of the documents submitted by the applicant illustrating prosecutors’ inability to obtain access to classified materials relating to interceptions (see paragraph 14 above). That example also raises doubts as to the effectiveness of supervision by prosecutors in practice.
- In view of the defects identified above, and taking into account the particular importance of supervision in a system where law-enforcement authorities have direct access to all communications, the Court considers that the prosecutors’ supervision of interceptions as it is currently organised is not capable of providing adequate and effective guarantees against abuse.
Notification of interception of communications and available remedies
- The Court will now turn to the issue of notification of interception of communications which is inextricably linked to the effectiveness of remedies before the courts (see case-law cited in paragraph 234 above).
- It may not be feasible in practice to require subsequent notification in all cases. The activity or danger against which a particular series of surveillance measures is directed may continue for years, even decades, after the suspension of those measures. Subsequent notification to each individual affected by a suspended measure might well jeopardise the long-term purpose that originally prompted the surveillance. Furthermore, such notification might serve to reveal the working methods and fields of operation of the intelligence services and even possibly to identify their agents. Therefore, the fact that persons concerned by secret surveillance measures are not subsequently notified once surveillance has ceased cannot by itself warrant the conclusion that the interference was not «necessary in a democratic society», as it is the very absence of knowledge of surveillance which ensures the efficacy of the interference. As soon as notification can be carried out without jeopardising the purpose of the restriction after the termination of the surveillance measure, information should, however, be provided to the persons concerned (see Klass and Others, cited above, § 58, and Weber and Saravia, cited above, § 135). The Court also takes note of the Recommendation of the Committee of Ministers regulating the use of personal data in the police sector, which provides that where data concerning an individual have been collected and stored without his or her knowledge, and unless the data are deleted, he or she should be informed, where practicable, that information is held about him or her as soon as the object of the police activities is no longer likely to be prejudiced (§ 2.2, see paragraph 143 above).
- In the cases of Klass and Others and Weber and Saravia the Court examined German legislation which provided for notification of surveillance as soon as that could be done after its termination without jeopardising its purpose. The Court took into account that it was an independent authority, the G10 Commission, which had the power to decide whether an individual being monitored was to be notified of a surveillance measure. The Court found that the provision in question ensured an effective notification mechanism which contributed to keeping the interference with the secrecy of telecommunications within the limits of what was necessary to achieve the legitimate aims pursued (see Klass and Others, cited above, § 58, and Weber and Saravia, cited above, § 136). In the cases of Association for European Integration and Human Rights and Ekimdzhiev and Dumitru Popescu (no. 2), the Court found that the absence of a requirement to notify the subject of interception at any point was incompatible with the Convention, in that it deprived the interception subject of an opportunity to seek redress for unlawful interferences with his or her Article 8 rights and rendered the remedies available under the national law theoretical and illusory rather than practical and effective. The national law thus eschewed an important safeguard against the improper use of special means of surveillance (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, §§ 90 and 91, and Dumitru Popescu (no. 2), cited above, § 77). By contrast, in the case of Kennedy the absence of a requirement to notify the subject of interception at any point in time was compatible with the Convention, because in the United Kingdom any person who suspected that his communications were being or had been intercepted could apply to the Investigatory Powers Tribunal, whose jurisdiction did not depend on notification to the interception subject that there had been an interception of his or her communications (see Kennedy, cited above, § 167).
- Turning now to the circumstances of the present case, the Court observes that in Russia persons whose communications have been intercepted are not notified of this fact at any point or under any circumstances. It follows that, unless criminal proceedings have been opened against the interception subject and the intercepted data have been used in evidence, or unless there has been a leak, the person concerned is unlikely ever to find out if his or her communications have been intercepted.
- The Court takes note of the fact that a person who has somehow learned that his or her communications have been intercepted may request information about the corresponding data (see paragraph 81 above). It is worth noting in this connection that in order to be entitled to lodge such a request the person must be in possession of the facts of the operational-search measures to which he or she was subjected. It follows that the access to information is conditional on the person’s ability to prove that his or her communications were intercepted. Furthermore, the interception subject is not entitled to obtain access to documents relating to interception of his or her communications; he or she is at best entitled to receive «information» about the collected data. Such information is provided only in very limited circumstances, namely if the person’s guilt has not been proved in accordance with the procedure prescribed by law, that is, he or she has not been charged or the charges have been dropped on the ground that the alleged offence was not committed or that one or more elements of a criminal offence were missing. It is also significant that only information that does not contain State secrets may be disclosed to the interception subject and that under Russian law information about the facilities used in operational-search activities, the methods employed, the officials involved and the data collected constitutes a State secret (see paragraph 52 above). In view of the above features of Russian law, the possibility to obtain information about interceptions appears to be ineffective.
- The Court will bear the above factors — the absence of notification and the lack of an effective possibility to request and obtain information about interceptions from the authorities — in mind when assessing the effectiveness of remedies available under Russian law.
- Russian law provides that a person claiming that his or her rights have been or are being violated by a State official performing operational-search activities may complain to the official’s superior, a prosecutor or a court (see paragraph 83 above). The Court reiterates that a hierarchical appeal to a direct supervisor of the authority whose actions are being challenged does not meet the requisite standards of independence needed to constitute sufficient protection against the abuse of authority (see, for similar reasoning, Khan v. the United Kingdom, no. 35394/97, §§ 45 — 47, ECHR 2000-V; Dumitru Popescu (no. 2), cited above, § 72; and Avanesyan, cited above, § 32). A prosecutor also lacks independence and has a limited scope of review, as demonstrated above (see paragraphs 277 to 285 above). It remains to be ascertained whether a complaint to a court may be regarded as an effective remedy.
- There are four judicial procedures which, according to the Government, may be used by a person wishing to complain about interception of his communications: an appeal, a cassation appeal or a supervisory-review complaint against the judicial decision authorising interception of communications; a judicial review complaint under Article 125 of the CCrP; a judicial review complaint under the Judicial Review Act and Chapter 25 of the Code of Civil Procedure; and a civil tort claim under Article 1069 of the Civil Code. The Court will examine them in turn.
- The first of the procedures invoked by the Government is an appeal, cassation appeal or supervisory-review complaint against the judicial decision authorising interception of communications. However, the Constitutional Court stated clearly that the interception subject had no right to appeal against the judicial decision authorising interception of his communications (see paragraph 40 above; see also Avanesyan, cited above, § 30). Domestic law is silent on the possibility of lodging a cassation appeal. Given that the Government did not submit any examples of domestic practice on examination of cassation appeals, the Court has strong doubts as to the existence of a right to lodge a cassation appeal against a judicial decision authorising interception of communications. At the same time, the interception subject is clearly entitled to lodge a supervisory review complaint (see paragraph 43 above). However, in order to lodge a supervisory review complaint against the judicial decision authorising interception of communications, the person concerned must be aware that such a decision exists. Although the Constitutional Court has held that it is not necessary to attach a copy of the contested judicial decision to the supervisory review complaint (ibid.), it is difficult to imagine how a person can lodge such a complaint without having at least the minimum information about the decision he or she is challenging, such as its date and the court which has issued it. In the absence of notification of surveillance measures under Russian law, an individual would hardly ever be able to obtain that information unless it were to be disclosed in the context of criminal proceedings against him or her or there was some indiscretion which resulted in disclosure.
- Further, a complaint under Article 125 of the CCrP may be lodged only by a participant to criminal proceedings while a pre-trial investigation is pending (see paragraphs 88 and 89 above). This remedy is therefore available only to persons who have learned about the interception of their communications in the framework of criminal proceedings against them. It cannot be used by a person against whom no criminal proceedings have been brought following the interception of his or her communications and who does not know whether his or her communications were intercepted. It is also worth noting that the Government did not submit any judicial decisions examining a complaint under Article 125 of the CCrP about the interception of communications. They therefore failed to illustrate the practical effectiveness of the remedy invoked by them with examples from the case-law of the domestic courts (see, for similar reasoning, Rotaru, cited above, § 70, and Ananyev and Others, cited above, §§ 109 and 110).