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ROMAN ZAKHAROV v. RUSSIA JUDGMENT
Convention involves determining whether the contested legislation is in itself
compatible with the Convention’s provisions.
...”
166. Following the judgment in Klass and Others, the case-law of the
Convention organs developed two parallel approaches to victim status in
secret-surveillance cases.
167. In several cases the Commission and the Court held that the test in
Klass and Others could not be interpreted so broadly as to encompass every
person in the respondent State who feared that the security services might
have compiled information about him. An applicant could not, however, be
reasonably expected to prove that information concerning his private life
had been compiled and retained. It was sufficient, in the area of secret
measures, that the existence of practices permitting secret surveillance be
established and that there was a reasonable likelihood that the security
services had compiled and retained information concerning his private life
(see Esbester, cited above; Redgrave, cited above; Christie v. the United
Kingdom, no. 21482/93, Commission decision of 27 June 1994, Decisions
and Reports 78-A; Matthews, cited above; Halford, cited above, §§ 47 and
55-57; and Iliya Stefanov v. Bulgaria, no. 65755/01, §§ 49-50, 22 May
2008). In all of the above cases, the applicants alleged actual interception of
their communications. In some of them they also made general complaints
concerning legislation and practice permitting secret surveillance measures
(see Esbester; Redgrave; Matthews; and Christie, all cited above).
168. In other cases the Court reiterated the Klass and Others approach
that the mere existence of laws and practices which permitted and
established a system for effecting secret surveillance of communications
entailed a threat of surveillance for all those to whom the legislation might
be applied. This threat necessarily affected freedom of communication
between users of the telecommunications services and thereby amounted in
itself to an interference with the exercise of the applicants’ rights under
Article 8, irrespective of any measures actually taken against them (see
Malone, cited above, § 64; Weber and Saravia, cited above, § 78;
Association for European Integration and Human Rights and Ekimdzhiev,
cited above, §§ 58-59 and 69; Liberty and Others, cited above, §§ 56-57;
and Iordachi and Others v. Moldova, no. 25198/02, §§ 30-35, 10 February
2009). In all of the above cases the applicants made general complaints
concerning legislation and practice permitting secret surveillance measures.
In some of them they also alleged actual interception of their
communications (see Malone, cited above, § 62, and Liberty and Others,
cited above, §§ 41-42).
169. Finally, in its most recent case on the subject, Kennedy, the Court
held that sight should not be lost of the special reasons justifying the Court’s
departure, in cases concerning secret measures, from its general approach to
deny individuals the right to challenge a law in abstracto. The principal