ROMAN ZAKHAROV v. RUSSIA JUDGMENT
9
35. In urgent cases where there is an immediate danger that a serious or
especially serious offence may be committed or where there is information
about events or activities endangering national, military, economic or
ecological security, the operational-search measures specified in
section 8(2) may be conducted without prior judicial authorisation. In such
cases a judge must be informed within twenty-four hours of the
commencement of the operational-search activities. If judicial authorisation
has not been obtained within forty-eight hours of the commencement of the
operational-search activities, those activities must be stopped immediately
(section 8(3) of the OSAA).
36. The examination of requests to take measures involving interference
with the constitutional right to the privacy of correspondence and telephone,
postal, telegraphic and other communications transmitted by means of
telecommunications networks or mail services, or with the right to privacy
of the home, falls within the competence of a court in the locality where the
requested measure is to be carried out or in the locality where the requesting
body is located. The request must be examined immediately by a single
judge (section 9(1) of the OSAA).
37. The judge takes a decision on the basis of a reasoned request by the
head of one of the agencies competent to perform operational-search
activities. Relevant supporting materials, except materials containing
information about undercover agents or police informers or about the
organisation and tactics of operational-search measures, may also be
produced at the judge’s request (section 9(2) and (3) of the OSAA).
38. The judge examining the request shall decide whether to authorise
measures involving interference with the above-mentioned constitutional
rights, or to refuse authorisation, giving reasons. The judge must specify the
period of time for which the authorisation is granted, which shall not
normally exceed six months. If necessary, the judge may extend the
authorised period after a fresh examination of all the relevant materials
(section 9(4) and (5) of the OSAA).
39. The judicial decision authorising operational-search activities and
the materials that served as a basis for that decision must be held in the
exclusive possession of the State agency performing the operational-search
activities (section 12(3) of the OSAA).
40. On 14 July 1998 the Constitutional Court, in its decision no. 86-O,
dismissed as inadmissible a request for a review of the constitutionality of
certain provisions of the OSAA. It held, in particular, that a judge was to
authorise investigative measures involving interference with constitutional
rights only if he was persuaded that such measures were lawful, necessary
and justified, that is, compatible with all the requirements of the OSAA. The
burden of proof was on the requesting State agency to show the necessity of
the measures. Supporting materials were to be produced to the judge at his
request. Given that some of those materials might contain State secrets, only