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ROMAN ZAKHAROV v. RUSSIA JUDGMENT
74. The Federal Security Service Act of 3 April 1995 (no. 40-FZ – “the
FSB Act”) provides that information about the security services’ undercover
agents, as well as about the tactics, methods and means used by them is
outside the scope of supervision by prosecutors (section 24).
75. The procedures for prosecutors’ supervision of operational-search
activities have been set out in Order no. 33, issued by the Prosecutor
General’s Office on 15 February 2011.
76. Order no. 33 provides that a prosecutor may carry out routine
inspections of agencies carrying out operational-search activities, as well as
ad hoc inspections following a complaint by an individual or receipt of
information about potential violations. Operational-search activities
performed by the FSB in the sphere of counterintelligence may be inspected
only following an individual complaint (paragraph 5 of Order no. 33).
77. During the inspection the prosecutor must verify compliance with
the following requirements:
– observance of citizens’ constitutional rights, such as the right to
respect for private and family life, home, correspondence, telephone, postal,
telegraph and other communications;
– that the measures taken in the course of operational-search activities
are lawful and justified, including those measures that have been authorised
by a court (paragraphs 4 and 6 of Order no. 33).
78. During the inspection the prosecutor must study the originals of the
relevant operational-search materials, including personal files, information
on the use of technical equipment, registration logs and internal instructions,
and may request explanations from competent officials. The prosecutors
must protect the sensitive data entrusted to them from unauthorised access
or disclosure (paragraphs 9 and 12 of Order no. 33).
79. If a prosecutor identifies a breach of the law, he must request the
official responsible for it to remedy the breach. He must also take measures
to stop and remedy violations of citizens’ rights and to bring those
responsible to liability (paragraphs 9 and 10 of Order no. 33). A State
official who refuses to comply with a prosecutor’s orders may be brought to
account in accordance with the law (paragraph 11).
80. The prosecutors responsible for supervision of operational-search
activities must submit six-monthly reports detailing the results of the
inspections to the Prosecutor General’s Office (paragraph 15 of Order
no. 33). A report form to be filled in by prosecutors is attached to Order
no. 33. The form indicates that it is confidential. It contains two sections,
both in table format. The first section concerns inspections carried out
during the reference period and contains information about the number of
inspections, number of files inspected and number of breaches detected. The
second section concerns citizens’ complaints and contains information about
the number of complaints examined and granted.