ROMAN ZAKHAROV v. RUSSIA JUDGMENT
37
Association for European Integration and Human Rights and Ekimdzhiev
(cited above, § 58) and Kennedy (cited above, § 123).
159. The applicant maintained that the test of “reasonable likelihood”
had been applied by the Court only in those cases where the applicant had
alleged actual interception, while in the cases concerning general complaints
concerning legislation and practice permitting secret surveillance measures
the “mere existence” test established in Klass and Others had been applied
(see Association for European Integration and Human Rights and
Ekimdzhiev, cited above, § 59, and Kennedy, cited above, §§ 122-23, with
further references). In Liberty and Others v. the United Kingdom
(no. 58243/00, §§ 56-57, 1 July 2008), the Court found that the existence of
powers permitting the authorities to intercept communications constituted
an interference with the Article 8 rights of the applicants, since they were
persons to whom these powers might have been applied. In Kennedy (cited
above, § 124) that test had been further elaborated upon to include the
assessment of availability of any remedies at the national level and the risk
of secret surveillance measures being applied to the applicant. Finally, in
Mersch and Others v. Luxemburg (nos. 10439/83 and 5 others, Commission
decision of 10 May 1985, Decisions and Reports 43) the Commission found
that, in those cases where the authorities had no obligation to notify the
persons concerned about the surveillance measures to which they had been
subjected, the applicants could claim to be “victims” of a violation of the
Convention on account of the mere existence of secret-surveillance
legislation, even though they could not allege in support of their
applications that they had been subjected to an actual measure of
surveillance.
160. The applicant argued that he could claim to be a victim of a
violation of Article 8 on account both of the mere existence of secretsurveillance legislation and of his personal situation. The OSAA, taken
together with the FSB Act, the Communications Act and the Orders adopted
by the Ministry of Communication, such as Order no. 70, permitted the
security services to intercept, through technical means, any person’s
communications without obtaining prior judicial authorisation for
interception. In particular, the security services had no obligation to show
the interception authorisation to anyone, including the communications
service provider. The contested legislation therefore permitted blanket
interception of communications.
161. No remedies were available under Russian law to challenge that
legislation. Thus, as regards the possibility of challenging Order no. 70, the
applicant referred to the Supreme Court’s decision of 25 September 2000 on
a complaint by a Mr N. (see paragraph 128 above) finding that that Order
was technical rather than legal in nature, and was therefore not subject to
official publication. He also submitted a copy of the decision of 24 May
2010 by the Supreme Commercial Court finding that the Orders by the