Постановление ЕСПЧ от 04.12.2015 <Дело Роман Захаров (Roman Zakharov) против России> (жалоба N 47143/06) [англ.] Часть 6

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  1. As regards the judicial review complaint under the Judicial Review Act, Chapter 25 of the Code of Civil Procedure and the new Code of Administrative Procedure and a civil tort claim under Article 1069 of the Civil Code, the burden of proof is on the claimant to show that the interception has taken place and that his or her rights were thereby breached (see paragraphs 85, 95, 96 and 105 above). In the absence of notification or some form of access to official documents relating to the interceptions such a burden of proof is virtually impossible to satisfy. Indeed, the applicant’s judicial complaint was rejected by the domestic courts on the ground that he had failed to prove that his telephone communications had been intercepted (see paragraphs 11 and 13 above). The Court notes that the Government submitted several judicial decisions taken under Chapter 25 of the Code of Civil Procedure or Article 1069 of the Civil Code (see paragraphs 220 to 223 above). However, all of those decisions, with one exception, concern searches or seizures of documents or objects, that is, operational-search measures carried out with the knowledge of the person concerned. Only one judicial decision concerns interception of communications. In that case the intercept subject was able to discharge the burden of proof because she had learned about the interception of her communications in the course of criminal proceedings against her.
  2. Further, the Court takes note of the Government’s argument that Russian law provides for criminal remedies for abuse of power, unauthorised collection or dissemination of information about a person’s private and family life and breach of citizens’ right to privacy of communications. For the reasons set out in the preceding paragraphs these remedies are also available only to persons who are capable of submitting to the prosecuting authorities at least some factual information about the interception of their communications (see paragraph 24 above).
  3. The Court concludes from the above that the remedies referred to by the Government are available only to persons who are in possession of information about the interception of their communications. Their effectiveness is therefore undermined by the absence of a requirement to notify the subject of interception at any point, or an adequate possibility to request and obtain information about interceptions from the authorities. Accordingly, the Court finds that Russian law does not provide for an effective judicial remedy against secret surveillance measures in cases where no criminal proceedings were brought against the interception subject. It is not the Court’s task in the present case to decide whether these remedies will be effective in cases where an individual learns about the interception of his or her communications in the course of criminal proceedings against him or her (see, however, Avanesyan, cited above, where some of these remedies were found to be ineffective to complain about an “inspection” of the applicant’s flat).
  4. Lastly, with respect to the remedies to challenge the alleged insufficiency of safeguards against abuse in Russian law before the Russian courts, the Court is not convinced by the Government’s argument that such remedies are effective (see paragraphs 156 and 225 above). As regards the possibility to challenge the OSAA before the Constitutional Court, the Court observes that the Constitutional Court has examined the constitutionality of the OSAA on many occasions and found that it was compatible with the Constitution (see paragraphs 40 to 43, 50, 82 and 85 to 87 above). In such circumstances the Court finds it unlikely that a complaint by the applicant to the Constitutional Court, raising the same issues that have already been examined by it, would have any prospects of success. Nor is the Court convinced that a challenge of Order no. 70 before the Supreme Court or the lower courts would constitute an effective remedy. Indeed, the applicant did challenge Order no. 70 in the domestic proceedings. However, both the District and City Courts found that the applicant had no standing to challenge the Order because the equipment installed pursuant to that order did not in itself interfere with the privacy of his communications (see paragraphs 10, 11 and 13 above). It is also significant that the Supreme Court found that Order no. 70 was technical rather than legal in nature (see paragraph 128 above).
  5. In view of the above considerations, the Court finds that Russian law does not provide for effective remedies to a person who suspects that he or she has been subjected to secret surveillance. By depriving the subject of interception of the effective possibility of challenging interceptions retrospectively, Russian law thus eschews an important safeguard against the improper use of secret surveillance measures.
  6. For the above reasons, the Court also rejects the Government’s objection as to non-exhaustion of domestic remedies.


  1. The Court concludes that Russian legal provisions governing interceptions of communications do not provide for adequate and effective guarantees against arbitrariness and the risk of abuse which is inherent in any system of secret surveillance, and which is particularly high in a system where the secret services and the police have direct access, by technical means, to all mobile telephone communications. In particular, the circumstances in which public authorities are empowered to resort to secret surveillance measures are not defined with sufficient clarity. Provisions on discontinuation of secret surveillance measures do not provide sufficient guarantees against arbitrary interference. The domestic law permits automatic storage of clearly irrelevant data and is not sufficiently clear as to the circumstances in which the intercept material will be stored and destroyed after the end of a trial. The authorisation procedures are not capable of ensuring that secret surveillance measures are ordered only when “necessary in a democratic society”. The supervision of interceptions, as it is currently organised, does not comply with the requirements of independence, powers and competence which are sufficient to exercise an effective and continuous control, public scrutiny and effectiveness in practice. The effectiveness of the remedies is undermined by the absence of notification at any point of interceptions, or adequate access to documents relating to interceptions.
  2. It is significant that the shortcomings in the legal framework as identified above appear to have an impact on the actual operation of the system of secret surveillance which exists in Russia. The Court is not convinced by the Government’s assertion that all interceptions in Russia are performed lawfully on the basis of a proper judicial authorisation. The examples submitted by the applicant in the domestic proceedings (see paragraph 12 above) and in the proceedings before the Court (see paragraph 197 above) indicate the existence of arbitrary and abusive surveillance practices, which appear to be due to the inadequate safeguards provided by law (see, for similar reasoning, Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 92; and, by contrast, Klass and Others, cited above, § 59, and Kennedy, cited above, §§ 168 and 169).
  3. In view of the shortcomings identified above, the Court finds that Russian law does not meet the “quality of law” requirement and is incapable of keeping the “interference” to what is “necessary in a democratic society”.
  4. There has accordingly been a violation of Article 8 of the Convention.


  1. Alleged violation of Article 13 of the Convention


  1. The applicant complained that he had no effective remedy for his complaint under Article 8. He relied on Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

  1. Having regard to the findings under Article 8 of the Convention in paragraphs 286 to 300 above, the Court considers that, although the complaint under Article 13 of the Convention is closely linked to the complaint under Article 8 and therefore has to be declared admissible, it is not necessary to examine it separately (see Liberty and Others, cited above, § 73).


III. Application of Article 41 of the Convention


  1. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”


  1. Damage


  1. The applicant claimed 9,000 euros (EUR) in respect of non-pecuniary damage.
  2. The Government submitted that the claim was excessive, taking into account that the applicant had challenged Russian law in abstracto without being in any way personally affected by it. The finding of a violation would therefore constitute sufficient just satisfaction.
  3. The Court reiterates that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which it finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned any sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. Furthermore, in ratifying the Convention, the Contracting States undertake to ensure that their domestic law is compatible with it (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 111, with further references).
  4. The Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage caused to the applicant.


  1. Costs and expenses


  1. Before the Chamber, the applicant claimed 26,579 Russian roubles (RUB, about 670 euros (EUR) on the date of submission) for postal and translation expenses. He relied on postal and fax service invoices and a translation services contract.
  2. Before the Grand Chamber, the applicant claimed 22,800 pounds sterling (GBP, about EUR 29,000 on the date of submission) and EUR 13,800 for legal fees. He relied on lawyers’ time-sheets. Relying on bills and invoices, he also claimed GBP 6,833.24 (about EUR 8,700 on the date of submission) for translation, travelling and other administrative expenses.
  3. The Government accepted the claim for costs and expenses made before the Chamber because it was supported by documentary evidence. As regards the claims for costs and expenses made before the Grand Chamber, the Government submitted that the claims had been submitted more than a month after the hearing. As regards the legal fees, the Government submitted that part of those fees covered the work performed by the representatives before the applicant had signed an authority form and that there was no authority form in the name of Ms Levine. Furthermore, the number of representatives and the number of hours spent by them on the preparation of the case had been excessive. There was moreover no evidence that the applicant had paid the legal fees in question or was under a legal or contractual obligation to pay them. As regards the translation and other administrative expenses, the Government submitted that the applicant had not submitted any documents showing that he had paid the amounts claimed. Nor had he proved that the translation expenses had been indeed necessary, given that some of the applicant’s lawyers spoke Russian. The rates claimed by the translators had been excessive. Lastly, the travelling expenses had been also excessive.
  4. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 40,000 covering costs under all heads, plus any tax that may be chargeable to the applicant.


  1. Default interest


  1. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.




  1. Joins, unanimously, to the merits the Government’s objections regarding the applicant’s lack of victim status and non-exhaustion of domestic remedies and declares the application admissible;
  2. Holds, unanimously, that there has been a violation of Article 8 of the Convention and dismisses the Government’s above-mentioned objections;
  3. Holds, unanimously, that there is no need to examine the complaint under Article 13 of the Convention;
  4. Holds, by sixteen votes to one, that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;
  5. Holds, unanimously,

(a) that the respondent State is to pay the applicant, within three months, EUR 40,000 (forty thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

  1. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.


Done in English and French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 4 December 2015.

Dean SPIELMANN President

Lawrence EARLY Jurisconsult


In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) Concurring opinion of Judge Dedov;

(b) Partly dissenting opinion of Judge Ziemele.





  1. Competence of the Court to examine the domestic law in abstracto


As pointed out by the Government, doubts may exist as to the Court’s competence to examine the quality and effectiveness of the domestic law in abstracto without the applicant’s victim status being established and without determining that there had been interference with his right to respect for his private life in practice, and not merely theoretically.

This approach has already been used by the Court in interception cases in order to prevent potential abuses of power. In two leading cases, Kennedy v. the United Kingdom (no. 26839/05, §§ 122 – 123, 18 May 2010) and Klass and Others v. Germany (6 September 1978, § 34, Series A no. 28), against two prominent democratic States, namely the United Kingdom and the Federal Republic of Germany, the Court confirmed the effectiveness of the relevant domestic systems against arbitrariness. However, and regrettably, we cannot ignore the fact that both of these States have recently been involved in major well-publicised surveillance scandals. Firstly, the mobile telephone conversations of the Federal Chancellor of Germany were unlawfully intercepted by the national secret service; and secondly, the UK authorities provided a US secret service with access to and information about the former State’s entire communication database, with the result that the US authorities were able to intercept all UK citizens without being subject to any appropriate domestic safeguards at all.

This indicates that something was wrong with the Court’s approach from the very outset. It would perhaps be more effective to deal with applications on an individual basis, so that the Court has an opportunity to establish interference and to find a violation of the Convention, as indeed it regularly finds in relation to unjustified searches of applicants’ premises. Generally speaking, the problem in those cases does not concern the authorisation powers of the domestic courts, but the manner in which the judges authorise the requests for investigative searches.

The Court’s approach can easily shift from the actual application of the law to the potential for interference. Here are examples from the Kennedy case:

“119. The Court has consistently held in its case-law 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, inter alia, Klass and Others, cited above, § 33; N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002-X; and Krone Verlag GmbH & Co. KG v. Austria (no. 4), no. 72331/01, § 26, 9 November 2006)”;

and from the Klass case:

“36. …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…, since otherwise Article 8… runs the risk of being nullified”.

However, the German and English scandals referred to above confirm that, sooner or later, the individual concerned will become aware of the interception. One may find relevant examples in the Russian context (see Shimovolos v. Russia, no. 30194/09, 21 June 2011). The applicant in the present case is not aware of any interception of his communications, and this fact cannot be ignored by the Court.

The Court has on many occasions avoided examining cases in abstracto (see Silver and Others v. the United Kingdom, 25 March 1983, Series A no. 61, § 79; Nikolova v. Bulgaria [GC], no. 31195/96, § 60, ECHR 1999-II; Nejdet  and Perihan  v. Turkey [GC], no. 13279/05, §§ 68 – 70, 20 October 2011; Sabanchiyeva and Others v. Russia, no. 38450/05, § 137, ECHR 2013; and Monnat v. Switzerland, no. 73604/01, §§ 31 – 32, ECHR 2006-X). Thus, one can presume that the interception cases are unique. We then need to know the reasons why the Court should change its general approach when examining such cases. Yet we have no idea about what those reasons might be. If the legislation creates the risk of arbitrariness, then we need to see the outcome of that arbitrariness. I am not sure that a few examples (unrelated to the applicant’s case) prove that the entire system of safeguards should be revised and strengthened. I would accept such an approach if the Court had a huge backlog of individual repetitive petitions showing that Order no. 70 (on the connection of interception equipment to operators’ networks) is not technical in nature but that it creates a structural problem in Russia. If that is the case, however, we need a pilot procedure and a pilot judgment.

Every case in which the Court has found a violation of the Convention (more than 15,000 judgments) is based on the abuse of power, even where the domestic legislation is of good quality. Every abuse of power is a question of ethics, and cannot be eliminated by legislative measures alone.

The Court has consistently held that its task is not to review domestic law and practice in abstracto or to express a view as to the compatibility of the provisions of legislation with the Convention, but to determine whether the manner in which they were applied or in which they affected the applicant gave rise to a violation of the Convention (see, among other authorities, in the Article 14 context, Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, § 90, 31 July 2008).

Article 34 of the Convention does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law in abstracto simply because they feel that it contravenes the Convention. In principle, it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment (see Klass, cited above, § 33). These principles should not be applied arbitrarily.


  1. Legislature and judiciary: the Court should respect differences


This case is very important in terms of the separation of functions between the Court and the Parliamentary Assembly of the Council of Europe, as it is necessary to separate the powers of the legislature and judiciary. The Parliamentary Assembly adopts recommendations, resolutions and opinions which serve as guidelines for the Committee of Ministers, national governments, parliaments and political parties. Ultimately, through conventions, legislation and practice, the Council of Europe promotes human rights, democracy and the rule of law. It monitors member States’ progress in these areas and makes recommendations through independent expert monitoring bodies. The European Court of Human Rights rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights. Taking account of the above separation of functions, the examination of a case in abstracto is similar to an expert report, but not to a judgment.

Morten Kjaerum, Director of European Union Agency for Human Rights (FRA), addressed a joint debate on fundamental rights at the European Parliamentary Committee on Civil Liberties, Justice and Home Affairs (LIBE) on 4 September 2014. The Director pointed out:

“The Snowden revelations of mass surveillance highlighted the fact that the protection of personal data is under threat. The protection of the right to privacy is far from sufficient when we look across Europe today. Following last year’s debates, we very much welcome the European Parliament’s request to the Fundamental Rights Agency to further investigate the fundamental rights and safeguards in place in the context of large-scale surveillance programmes. And of course you will be informed probably towards the end of this year about the findings of this particular request.

But it’s not only the big surveillance programmes. There are also misgivings about oversight mechanisms in the area of general data protection. When we give data to health authorities, to tax authorities, to other institutions, public or private. We see from the work of the Fundamental Rights Agency that the national oversight structures in the EU are currently too weak to fulfil their mission. Data protection authorities, which are established in all Member States have an important role to play in the enforcement of the overall data protection system, but the powers and resources of national data protection authorities urgently needs to be strengthened and also their independence needs to be guaranteed.

Finally, I would also highlight that those who are entrusted to store the data, whether it is private or public, that the institutions need to be accountable, at a much stronger level that we see today if the safeguards that they create are not sufficiently in place.”

These remarks were addressed to the newly elected members of the European Parliament (rather than to judges), raising issues of concern across Europe and calling for more a sophisticated system of data protection. The aim of the speech was to initiate public debate in order to find effective measures and to promote proper ethical standards in society; the courtroom is not a place for such a debate.

I would suggest that the Court more properly focus on a particular interference and the effectiveness of the measures in place to prevent that specific violation (as the Court usually does in all other categories of cases). This is the Court’s primary task: to establish that an interference has taken place and then to examine whether the interference was lawful and necessary in a democratic society. It is ethically unacceptable for judges to presume that every citizen in a particular country could be under unlawful secret surveillance without knowledge of the facts. A judgment cannot be built on the basis of allegations.

The Court has used many tools to fight against violations. One of them was to find a violation of Article 10 on account of an intelligence service’s refusal to provide information to the applicant organisation about individuals placed under electronic surveillance for a specified period (Youth Initiative for Human Rights v. Serbia, no. 48135/06, 25 June 2013). In the operative part of that judgment, the Court invited the Government to ensure that the disputed information was made available to the applicant organisation (without waiting for measures to be proposed by the Committee of Ministers). I recognize this as an effective measure and a judicial success.


  1. The “reasonable likelihood” approach should be developed


Establishment of the applicant’s victim status is an integral part of the judicial process. Article 34 of the Convention provides that “the Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto”. The notion of “victim” does not imply the existence of prejudice (see  v. Romania [GC], no. 28342/95, § 50, ECHR 1999-VII).

The Court has previously ruled that, while the existence of a surveillance regime might interfere with privacy, a claim that this created a violation of rights was justiciable only where there was a “reasonable likelihood” that a person had actually been subjected to unlawful surveillance (see Esbester v. the United Kingdom, no. 18601/91, Commission decision of 2 April 1993; Redgrave v. the United Kingdom, application no. 202711/92, Commission decision of 1 September 1993; and Matthews v. the United Kingdom, application no. 28576/95, Commission decision of 16 October 1996). These references are to inadmissibility decisions, since all of the allegations of interception were considered manifestly ill-founded.

However, the Court changed its approach completely in the Klass case: “…it could not be excluded that secret surveillance measures were applied to him or that the applicant was potentially at risk of being subjected to such measures” (Klass, cited above, §§ 125 – 129). Today we see that this change in the case-law was not effective.

The term “reasonable likelihood” implies that there are negative consequences for an applicant who is potentially subject to secret surveillance, on account of certain information that is made available to the authorities through interception, and excluding the possibility that this information could be uncovered by other means. The Court made this approach dangerously simple in order to examine the merits of these cases, presuming that persons who are subject to secret supervision by the authorities are not always subsequently informed of such measures against them, and thus it is impossible for the applicants to show that any of their rights have been interfered with. In these circumstances the Court concluded that applicants must be considered to be entitled to lodge an application even if they cannot show that they are victims. The applicants in the Klass and Liberty (Liberty and Others v. the United Kingdom, no. 58243/00, 1 July 2008) cases were lawyers and theoretically “they could [have been] subject to secret surveillance in consequence of contacts they may have with clients who might be suspected of illegal activities” (Klass, § 37).

In the Kennedy case the applicant alleged that local calls to his telephone were not being put through to him and that he was receiving a number of time-wasting hoax calls. The applicant suspected that this was because his mail, telephone and email communications were being intercepted, and the Court took this into serious consideration, rejecting the Government’s objections that the applicant had failed to show that there had been interference for the purposes of Article 8, and that he had not established a reasonable likelihood. The Court also rejected the non-exhaustion submissions, in spite of the fact that the applicant had not checked the quality of telecoms services with his operator, but had made subject access requests to MI5 and GCHQ (the United Kingdom’s intelligence agencies responsible for national security) under the Data Protection Act 1998.

Returning to the circumstances of the present case, it can reasonably be concluded that the interconnection between the telecoms equipment and the interception equipment does not necessary mean that interception of the applicant’s telephone conversations has actually taken place. Nor can the Court base its findings on the presumption of the “possibility of improper action by a dishonest, negligent or over-zealous official” (see Klass, §§ 49, 50, 59; Weber and Saravia v. Germany (dec.), no. 54934/00, § 106, ECHR 2006-XI; Kennedy, §§ 153 – 154). Equally, the Court cannot presume in general (in order to examine the case in abstracto) the existence of State violence against the opposition movements and other democratic institutions in the respondent State, even if corresponding resolutions have been adopted by the Parliamentary Assembly. The Court must maintain its impartiality and neutrality.


  1. Role of the judiciary in civil society


Nonetheless, I have voted for admissibility and for the finding of a violation of Article 8 of the Convention on account of the fact that the fundamental importance of safeguards to protect private communications against arbitrary surveillance, especially in the non-criminal context, was never addressed in the domestic proceedings. The Russian courts refused to address the applicant’s allegations on the merits, mistakenly referring to the technical nature of the impugned ministerial orders. As a national judge, I cannot ignore the fact that a widespread suspicion exists in Russian society that surveillance is exercised over political and economic figures, including human-rights activists, opposition activists and leaders, journalists, State officials, managers of State property – in other words, over all those who are involved in public affairs. Such a suspicion is based on past experience of the totalitarian regime during the Soviet era, and even on the long history of the Russian Empire.

This judgment could serve as a basis for improving the legislation in the sphere of operational and search activities and for establishing an effective system of public control over surveillance. Moreover, this judgment demonstrates that if widespread suspicion exists in society, and if there is no other possibility for society to lift this suspicion without a social contract and appropriate changes in national law and practice, then where the problem is not identified by the other branches of power, the judiciary must be active in order to facilitate those changes. This is even more obvious if there are no other means available to protect democracy and the rule of law. This is an important role which the judiciary must play in civil society.

The Court could be criticised for failing to provide more specific reasoning for its in abstracto examination within the social context, with the observation that the Court has merely followed its own Chamber case-law. However, the judgment in the present case is a difficult one, since before reaching their conclusion the judges had to take care to establish whether or not all other means were useless. In contrast, in the case of Clapper v. Amnesty International USA (568 U.S. ___ (2013), the US Supreme Court failed to take a step forward, despite the existence of a mass surveillance programme and “the widespread suspicion” of its existence (or, in other words written by Justice Breyer in dissent, “[the harm] is as likely to take place as are most future events that common-sense inference and ordinary knowledge of human nature tell us will happen”). Instead, it rejected as insufficient the argument by the plaintiffs (including human-rights, legal and media organisations) that they were likely to be subject to surveillance due to the nature of their work.

I shall stop here, leaving the discussions on judicial aggression, activism or restraint for academics. I should like merely to close my opinion by quoting Edward Snowden’s remark: “With each court victory, with every change in the law, we demonstrate facts are more convincing than fear. As a society, we rediscover that the value of the right is not in what it hides, but in what it protects”.




  1. I fully agree with the finding of a violation in this case. The Court has rendered a very important judgment on a matter of principle, since secret surveillance as carried out in the manner described in the facts of the case is, in its very essence, incompatible with the rule of law and the principles of democracy.

2. It is especially in such a context that I cannot agree with the Court’s decision not to award any compensation for the non-pecuniary damage sustained. I consider that the applicant’s claim for damages was very reasonable (see paragraph 309 of the judgment) and that the finding of a violation, while very important as a matter of principle in this case, is not appropriate satisfaction for the applicant’s specific situation. I therefore voted against operative provision no. 4.

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