36
ROMAN ZAKHAROV v. RUSSIA JUDGMENT
submitted by him in the domestic proceedings had concerned third persons
and had not contained any proof that his telephone had been tapped.
156. Secondly, remedies were available at the national level to challenge
both the alleged insufficiency of safeguards against abuse in Russian law
and any specific surveillance measures applied to an individual. It was
possible to request that the Constitutional Court review the constitutionality
of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ –
“the OSAA”). It was also possible to lodge a complaint with the Supreme
Court, as had been successfully done by Mr N., who had obtained a finding
of unlawfulness in respect of a provision of the Ministry of
Communications’ Order no. 130 (see paragraph 128 above). As regards
Order no. 70, contrary to the applicant’s allegations, it had been duly
published (see paragraph 181 below) and could therefore be challenged in
the courts. A person whose communications had been intercepted
unlawfully without prior judicial authorisation could also obtain redress in a
civil court. The Government referred to the Supreme Court’s judgment of
15 July 2009, which found that the installation of a video camera in the
claimant’s office and the tapping of his office telephone had been unlawful
because those surveillance measures had been carried out without prior
judicial authorisation (see also paragraphs 219-24 below). Finally, Russian
law provided for supervision of interception of communications by an
independent body, the prosecutor’s office.
157. The Government concluded, in view of the above, that the present
case was different from Association for European Integration and Human
Rights and Ekimdzhiev v. Bulgaria (no. 62540/00, 28 June 2007) where the
Court had refused to apply the “reasonable likelihood” test because of the
absence of any safeguards against unlawful interception in Bulgaria. Given
that Russian law provided for adequate and sufficient safeguards against
abuse in the sphere of interception of communications, including available
remedies, in the Government’s opinion the applicant could not claim an
interference as a result of the mere existence of legislation permitting secret
surveillance. In the absence of a “reasonable likelihood” that his telephone
communications had been intercepted, he could not claim to be a victim of
the alleged violation of Article 8 of the Convention.
(ii) The applicant
158. The applicant submitted that he could claim to be a victim of a
violation of Article 8 due to the mere existence of legislation which allowed
a system of secret interception of communications, without having to
demonstrate that such secret measures had in fact been applied to him. The
existence of such legislation entailed a threat of surveillance for all users of
the telecommunications services and therefore amounted in itself to an
interference with the exercise of his rights under Article 8. He relied in
support of his position on Klass and Others (cited above, §§ 34 and 37),