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ROMAN ZAKHAROV v. RUSSIA JUDGMENT
judges with the necessary level of security clearance could examine
authorisation requests. Further, relying on the need to keep the surveillance
measures secret, the Constitutional Court held that the principles of a public
hearing and adversarial proceedings were not applicable to the authorisation
proceedings. The fact that the person concerned was not entitled to
participate in the authorisation proceedings, to be informed of the decision
taken or to appeal to a higher court did not therefore violate that person’s
constitutional rights.
41. On 2 October 2003 the Constitutional Court, in its decision
no. 345-O, held that the judge had an obligation to examine the materials
submitted to him in support of a request for interception thoroughly and
carefully. If the request was insufficiently substantiated, the judge could
request additional information.
42. Further, on 8 February 2007 the Constitutional Court, in its decision
no. 1-O, dismissed as inadmissible a request for a review of the
constitutionality of section 9 of the OSAA. It found that before granting
authorisation to perform operational-search measures the judge had an
obligation to verify the grounds for that measure. The judicial decision
authorising operational-search measures was to contain reasons and to refer
to specific grounds for suspecting that a criminal offence had been
committed, was being committed, or was being plotted or that activities
endangering national, military, economic or ecological security were being
carried out, and that the person in respect of whom operational-search
measures were requested was involved in those criminal or otherwise
dangerous activities.
43. On 15 July 2008 the Constitutional Court, in its decision
no. 460-O-O, dismissed as inadmissible a request for a review of the
constitutionality of sections 5, 11 and 12 of the OSAA. The Constitutional
Court found that a person whose communications had been intercepted was
entitled to lodge a supervisory-review complaint against the judicial
decision authorising the interception. The fact that he had no copy of that
decision did not prevent him from lodging the supervisory-review
complaint, because the relevant court could request it from the competent
authorities.
2. Code of Criminal Procedure
44. Investigative measures involving a search in a person’s home or
interception of his telephone calls and other communications are subject to
prior judicial authorisation. A request to search a person’s home or intercept
his communications must be submitted by an investigator with a
prosecutor’s approval and must be examined by a single judge within
twenty-four hours. The prosecutor and the investigator are entitled to attend.
The judge examining the request shall decide whether to authorise the