ROMAN ZAKHAROV v. RUSSIA JUDGMENT
41
reason was to ensure that the secrecy of such measures did not result in the
measures being effectively unchallengeable and outside the supervision of
the national judicial authorities and the Court. In order to assess, in a
particular case, whether an individual can claim an interference as a result
of the mere existence of legislation permitting secret surveillance measures,
the Court must have regard to the availability of any remedies at the
national level and the risk of secret surveillance measures being applied to
him. Where there is no possibility of challenging the alleged application of
secret surveillance measures at domestic level, widespread suspicion and
concern among the general public that secret surveillance powers are being
abused cannot be said to be unjustified. In such cases, even where the actual
risk of surveillance is low, there is a greater need for scrutiny by this Court
(see Kennedy, cited above, § 124).
(ii) Harmonisation of the approach to be taken
170. The Court considers, against this background, that it is necessary to
clarify the conditions under which an applicant can claim to be the victim of
a violation of Article 8 without having to prove that secret surveillance
measures had in fact been applied to him, so that a uniform and foreseeable
approach may be adopted.
171. In the Court’s view the Kennedy approach is best tailored to the
need to ensure that the secrecy of surveillance measures does not result in
the measures being effectively unchallengeable and outside the supervision
of the national judicial authorities and of the Court. Accordingly, the Court
accepts that an applicant can claim to be the victim of a violation
occasioned by the mere existence of secret surveillance measures, or
legislation permitting secret surveillance measures, if the following
conditions are satisfied. Firstly, the Court will take into account the scope of
the legislation permitting secret surveillance measures by examining
whether the applicant can possibly be affected by it, either because he
belongs to a group of persons targeted by the contested legislation or
because the legislation directly affects all users of communication services
by instituting a system where any person can have his communications
intercepted. Secondly, the Court will take into account the availability of
remedies at the national level and will adjust the degree of scrutiny
depending on the effectiveness of such remedies. As the Court observed in
Kennedy, where the domestic system does not afford an effective remedy to
the person who suspects that he was subjected to secret surveillance,
widespread suspicion and concern among the general public that secret
surveillance powers are being abused cannot be said to be unjustified (see
Kennedy, cited above, § 124). In such circumstances the threat 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