ROMAN ZAKHAROV v. RUSSIA JUDGMENT
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H. Access by individuals to data collected about them in the course
of interception of communications
81. Russian law does not provide that a person whose communications
are intercepted must be notified at any point. However, a person who is in
possession of the facts of the operational-search measures to which he was
subjected and whose guilt has not been proved in accordance with the
procedure prescribed by law, that is, he has not been charged or the charges
have been dropped on the ground that the alleged offence was not
committed or that one or more elements of a criminal offence were missing,
is entitled to receive information about the data collected in the course of
the operational-search activities, to the extent compatible with the
requirements of operational confidentiality (конспирации) and excluding
data which could enable State secrets to be disclosed (section 5(4), (5) and
(6) of the OSAA).
82. In its decision of 14 July 1998 (cited in paragraph 40 above), the
Constitutional Court noted that any person who was in possession of the
facts of the operational-search measures to which he had been subjected was
entitled to receive information about the data collected in the course of those
activities, unless those data contained State secrets. Under section 12 of the
OSAA, data collected in the course of operational-search activities – such as
information about criminal offences and the persons involved in their
commission – were a State secret. However, information about breaches of
citizens’ rights or unlawful acts on the part of the authorities could not be
classified as a State secret and should be disclosed. Section 12 could not
therefore serve as a basis for refusing access to information affecting a
person’s rights, provided that such information did not concern the aims of,
or the grounds for, the operational-search activities. In view of the above,
the fact that, pursuant to the contested Act, a person was not entitled to be
granted access to the entirety of the data collected about him did not
constitute a violation of that person’s constitutional rights.
I. Judicial review
1. General provisions on judicial review
communications as established by the OSAA
of
interception
of
83. A person claiming that his rights have been or are being violated by
a State official performing operational-search activities may complain to the
official’s superior, a prosecutor or a court. If a citizen’s rights were violated
in the course of operational-search activities by a State official, the official’s
superior, a prosecutor or a court must take measures to remedy the violation
and compensate the damage (section 5(3) and (9) of the OSAA).
84. If a person was refused access to information about the data
collected about him in the course of operational-search activities, he is