European Court of Human Rights
On December 4, 2015, the Grand Chamber of the European Court of Human Rights (ECtHR) issued its judgment in the case of Zakharov v. Russia, concerning the compatibility of Russia’s secret surveillance of mobile phone communications with Article 8 of the European Convention on Human Rights (Convention). See ECtHR, Zakharov v. Russia [GC], no. 47143/06, Judgment of 4 December 2015. The case was brought by Roman Zakharov, who complained that the Russian law did not have sufficient safeguards against arbitrariness and abuse by authorities and this violated his right to respect for private life. The Court agreed, stressing that while Russia’s interception of communications pursued the legitimate aims of protecting national security and public safety, the prevention of crime and the protection of the economic well-being of the country, it needed to have adequate and effective guarantees against abuse. The Court held that there was high risk in a system such as Russia’s where the law enforcement bodies had direct access to all mobile telephone communications. Finding several shortcomings in the legal framework, the Court held that Russian law did not meet the “quality of law” requirement and was not “necessary in a democratic society.” The Court accordingly recognized a violation of Article 8 of the Convention. [ECtHR Press Release] The case was relinquished to the Grand Chamber March 2014, and had not previously been decided by another chamber of the European Court.
Facts and Domestic Procedure
The applicant is the editor-in-chief of a publishing company, the chairperson of a non-governmental organization focused on media freedom in the Russian regions, and a subscriber of several mobile network operators. In December 2003, he brought judicial proceeding against three mobile network operators, the Ministry of Communications, and the Department of the Federal Security Service for Saint Petersburg and the Leningrad Region, alleging that his right to the privacy in his telephone communications was being violated. He claimed that the Ministry of Communications’ Order no. 70, which allegedly had never been published, required mobile network operators to install equipment that permitted the Federal Security Service (“the FSB”) to intercept all telephone communications without prior judicial authorization. Claiming that the order unduly restricted his right to privacy, the applicant asked the district court to issue an injunction to remove the equipment installed pursuant to the order, and to ensure that access to telecommunications was given to authorized persons only. See ECtHR, Zakharov v. Russia [GC], no. 47143/06, Judgment of 4 December 2015, at paras. 8-10.
The district court dismissed the applicant’s claim on the ground that he failed to prove that the mobile network operators had transmitted any protected information to unauthorized persons or permitted the unrestricted or unauthorized interception of communications. Thus, the court stated that the installation of the equipment did not infringe the privacy of his communications. The applicant’s appeal was rejected. See id. at paras. 11-12.
In October 2006, the applicant lodged an application with the European Court of Human Rights and claimed that the system of covert interception of mobile telephone communications in Russia did not comply with the requirements of Article 8 (right to respect for private and family life) of the European Convention on Human Rights (Convention). See id. at para. 148. In March 2014, the chamber to which the case had been allocated relinquished jurisdiction in favor of the Grand Chamber. [ECtHR Press Release]
The Court’s Discussion
The European Court first analyzed whether the applicant had standing to pursue his claim. Although the applicant did not show that his own communications had been intercepted by the State, the Court nonetheless found that he could claim to be a “victim” because the Russian surveillance scheme could be applied to any person using a mobile phone and, therefore, affects all such users. Moreover, because the Russian legislation did not provide any relief for individuals who suspected their communications were being intercepted, the Court did not require the applicant to prove an individualized risk of surveillance. See ECtHR, Zakharov v. Russia, no. 47143/06, Judgment of 4 December 2015, at paras. 175-79.
In beginning its analysis of the surveillance scheme’s compatibility with Article 8, the Court stressed that the parties did not dispute the existence of Russian laws – namely the Operational-Search Activities Act of 12 August 1995 (hereafter “the OSAA”), the Code of Criminal Procedure of 18 December 2001 (hereafter “the CCrP”), the Communications Act, and Orders issued by the Ministry of Communications – that allowed for unrestricted government surveillance. The European Court found that these laws had legitimate aims, including the protection of national security and public safety, the prevention of crime and the protection of the economic well-being in the country. However, the Court concluded that these laws and policies did not provide adequate and effective guarantees to prevent arbitrariness and the risk of abuse. Based on its assessments, the Court found that the national law was too broad in scope, did not adequately regulate the duration of surveillance, did not properly provide for the retention or destruction of data, did not allow for meaningful judicial review of interception requests, allowed widespread interception of communications without public or judicial scrutiny, and did not appropriately notify or provide redress to those whose communications were intercepted. See id. at paras. 237-38.
The Court stressed that national law must define the scope of application of secret surveillance measures by identifying the circumstances in which authorities can use these measures. However, according to the Court, Russian law was uncertain in terms of who may access communications information and for what reasons. As such, it gave the authorities an almost unlimited degree of discretion, which created possibilities for abuse. See id. at paras. 243-48.
The Court noted that the legal provisions governing the circumstances in which secret surveillance measures must be discontinued did not sufficiently guarantee that there would not be arbitrary interference, because the requirement to discontinue interception when it was no longer necessary was mentioned in the CCrP only but the OSAA did not contain such a requirement. See id. at paras. 251-52.
The Court stated its satisfaction with the fact that Russian law contained clear rules on storage and use and communication of intercepted data. However, the Court also stressed its concern that Russian law gave unlimited discretion to the trial judge to store or to destroy the data used in evidence after end of trial and on this point the law was unclear. See id. at paras. 253-56.
The Court observed that Russian law contains an essential safeguard against arbitrary or indiscriminate secret surveillance because it gives courts the power to approve or deny interception of communications and the law enforcement agency seeking authorization must submit a reasoned request to the court. The European Court, however, noted that this judicial scrutiny is limited in scope because materials containing information on undercover agents or police informers may not be submitted to the judge, depriving the courts of the ability to make a comprehensive and fair assessment. The Court also mentioned that interception requests are not accompanied by any supporting materials in most cases; Russian courts generally do not request the interception agency to submit such materials and they do not verify whether there is a “reasonable suspicion” against the person concerned or verify that the requested surveillance is necessary and proportional. See id. at paras. 258-63.
The Court further observed that the OSAA did not contain requirements concerning the content of the request for interception or of the interception authorization and, as a result, Russian courts sometimes approved surveillance without identifying a specific person or telephone number to be tapped. Rather, they authorized interception of all telephone communications in the area where a criminal act was allegedly committed and did not limit the duration of the interception. The Court also expressed its concern that the OSAA permits the interception of communications without prior judicial authorization for up to 48 hours, and does not include sufficient safeguards to ensure that it was used sparingly and only in duly justified cases. See id. at paras. 264-67.
The Court observed that Russian secret surveillance scheme contradicted the European Convention, which requires that supervisory bodies shall be independent, open to public scrutiny, and vested with sufficient powers and competence to exercise effective and continuous control over the surveillance. The Court found that Russian security services and police had the technical means to intercept any communications without obtaining prior judicial authorization, creating ample opportunity for abuse of power. Moreover, the supervising authority had no opportunity to discover interception carried out without judicial authorization, because Order 70 prohibits logging or recording such interception. Further, judicial oversight is limited to the initial authorization of interceptions and subsequent supervision is entrusted to law enforcement and executive branch authorities. This was particularly troubling given prosecutors’ potential lack of independence from the executive, their lack of access to information about security services’ operations, and failure to publicly disclose information on surveillance measures. Lastly, the Court noted that the State did not submit any inspection reports or decisions by prosecutors to stop or remedy a detected breach of law, indicating that prosecutors’ supervision of secret surveillance measures is not effective in practice. Accordingly, the Court held that the prosecutors’ supervision of surveillance did not provide adequate and effective guarantees against abuse. See id. at paras. 269-85.
Assessing the issue of notification and access to effective remedies before national courts, the European Court observed that a person whose communications had been intercepted in Russia was not notified and would not learn about the surveillance unless that information was used in evidence in criminal proceedings or was the subject of an unauthorized government leak. According to the Court, this limited individuals’ ability to dispute the interception. Therefore, the Court found that the Russian law did not provide an effective remedy to a person who suspects that he or she has been subjected to secret surveillance. See id. at paras. 286-300.
Thus, the Court concluded that the Russian legal framework on interceptions of communications did not provide for adequate and effective guarantees against arbitrariness and the risk of abuse, and did not meet the “quality of law” requirement, and was incapable of limiting the “interference” to what is “necessary in a democratic society.” The Court held that this constituted a violation of Article 8 of the Convention. See id. at paras. 302-04.
The applicant also complained that he did not have an effective remedy for his complaint, as required by Article 13 of the European Convention. The Court considered that it was not necessary to examine this allegation separately because it was closely linked with the Article 8 violation. See id. at paras. 306-07.
Under Article 41, the Court held that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by Roman Zakharov, and found Russia obliged to pay him 40,000 euros to cover his costs and expenses. See id. at paras. 309-16.
The European Court has addressed the impact of surveillance on individuals’ right to privacy in previous cases. For example, in another case concerning Russia, the Court found that the inclusion of the applicant’s name in the “surveillance database” amounted to an interference with his private life because the database was governed by a ministerial order that had never been published or made accessible to the public. The Court held that the law lacked clarity concerning the scope and exercise of domestic authorities’ discretion to collect and store information on individuals’ private lives and did not contain minimum safeguards against abuse. See ECtHR, Shimovolos v. Russia, no. 30194/09, Judgment of 21 June 2011. To learn more about the jurisprudence of the European Court on protection of personal data, new technologies, and Russia, see the relevant factsheets.
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