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ROMAN ZAKHAROV v. RUSSIA JUDGMENT
entitled to know the reasons for the refusal of access and may appeal against
the refusal to a court. The burden of proof is on the law-enforcement
authorities to show that the refusal of access is justified. To ensure a full and
thorough judicial examination, the law-enforcement agency responsible for
the operational-search activities must produce, at the judge’s request,
operational-search materials containing information about the data to which
access was refused, with the exception of materials containing information
about undercover agents or police informers. If the court finds that the
refusal to grant access was unjustified, it may compel the law-enforcement
agency to disclose the materials to the person concerned (section 5(4), (5)
and (6) of the OSAA).
85. In its decision of 14 July 1998 (cited in paragraph 40 above), the
Constitutional Court noted that a person who learned that he had been
subjected to operational-search activities and believed that the actions of
State officials had violated his rights was entitled, under section 5 of the
OSAA, to challenge before a court the grounds for conducting such
activities, as well as the specific actions performed by the competent
authorities in the course of such activities, including in those cases where
they had been authorised by a court.
86. As regards procedural matters, the Constitutional Court held that in
proceedings in which the grounds for the operational-search activities or the
actions of the competent authorities conducting such activities were
challenged, as well as proceedings against the refusal to give access to the
data collected, the law-enforcement authorities were to submit to the judge,
at his request, all relevant operational-search materials, except materials
containing information about undercover agents or police informers.
87. A person wishing to complain about interception of his
communications may lodge a judicial-review complaint under Article 125
of the CCrP, a judicial-review complaint under Chapter 25 of the Code of
Civil Procedure and Law no. 4866-1 of 27 April 1993 on judicial review of
decisions and acts violating citizens’ rights and freedoms (“the Judicial
Review Act”), which were repealed and replaced on 15 September 2015 by
the Code of Administrative Procedure, or a civil tort claim under
Article 1069 of the Civil Code.
2. A judicial-review complaint under Article 125 of the CCrP
88. The Plenary Supreme Court in its Ruling no. 1 of 10 February 2009
held that actions of officials or State agencies conducting operational-search
activities at the request of an investigator could be challenged in accordance
with the procedure prescribed by Article 125 of the CCrP (paragraph 4).
Complaints lodged under that Article may be examined only while the
criminal investigation is pending. If the case has already been transmitted to
a court for trial, the judge declares the complaint inadmissible and explains