ROMAN ZAKHAROV v. RUSSIA JUDGMENT
39
a rigid, mechanical and inflexible way throughout the proceedings (see
Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above,
§ 96).
165. Thus, the Court has permitted general challenges to the relevant
legislative regime in the sphere of secret surveillance in recognition of the
particular features of secret surveillance measures and the importance of
ensuring effective control and supervision of them. In Klass and Others the
Court held that an individual might, under certain conditions, claim to be
the victim of a violation occasioned by the mere existence of secret
measures or of legislation permitting secret measures, without having to
allege that such measures had in fact been applied to him. The relevant
conditions were to be determined in each case according to the Convention
right or rights alleged to have been infringed, the secret character of the
measures objected to, and the connection between the applicant and those
measures (see Klass and Others, cited above, § 34). The Court explained the
reasons for its approach as follows.
“36. The Court points out that where a State institutes secret surveillance the
existence of which remains unknown to the persons being controlled, with the effect
that the surveillance remains unchallengeable, Article 8 could to a large extent be
reduced to a nullity. It is possible in such a situation for an individual to be treated in a
manner contrary to Article 8, or even to be deprived of the right granted by that
Article, without his being aware of it and therefore without being able to obtain a
remedy either at the national level or before the Convention institutions.
...
The Court finds it unacceptable that the assurance of the enjoyment of a right
guaranteed by the Convention could be thus removed by the simple fact that the
person concerned is kept unaware of its violation. A right of recourse to the
Commission for persons potentially affected by secret surveillance is to be derived
from Article 25 [currently Article 34], since otherwise Article 8 runs the risk of being
nullified.
37. As to the facts of the particular case, the Court observes that the contested
legislation institutes a system of surveillance under which all persons in the Federal
Republic of Germany can potentially have their mail, post and telecommunications
monitored, without their ever knowing this unless there has been either some
indiscretion or subsequent notification in the circumstances laid down in the Federal
Constitutional Court’s judgment ... To that extent, the disputed legislation directly
affects all users or potential users of the postal and telecommunication services in the
Federal Republic of Germany. Furthermore, as the Delegates rightly pointed out, this
menace of surveillance can be claimed in itself to restrict free communication through
the postal and telecommunication services, thereby constituting for all users or
potential users a direct interference with the right guaranteed by Article 8.
...
38. Having regard to the specific circumstances of the present case, the Court
concludes that each of the applicants is entitled to ‘(claim) to be the victim of a
violation’ of the Convention, even though he is not able to allege in support of his
application that he has been subject to a concrete measure of surveillance. The
question whether the applicants were actually the victims of any violation of the