42
ROMAN ZAKHAROV v. RUSSIA JUDGMENT
Article 8. There is therefore a greater need for scrutiny by the Court, and an
exception to the rule denying individuals the right to challenge a law in
abstracto is justified. In such cases the individual does not need to
demonstrate the existence of any risk that secret surveillance measures were
applied to him. By contrast, if the national system provides for effective
remedies, a widespread suspicion of abuse is more difficult to justify. In
such cases, the individual may claim to be a victim of a violation occasioned
by the mere existence of secret measures or of legislation permitting secret
measures only if he is able to show that, due to his personal situation, he is
potentially at risk of being subjected to such measures.
172. The Kennedy approach therefore provides the Court with the
requisite degree of flexibility to deal with a variety of situations which
might arise in the context of secret surveillance, taking into account the
particularities of the legal systems in the member States, namely the
available remedies, as well as the different personal situations of applicants.
(iii) Application to the present case
173. It is not disputed that mobile-telephone communications are
covered by the notions of “private life” and “correspondence” in
Article 8 § 1 (see, for example, Liberty and Others, cited above, § 56).
174. The Court observes that the applicant in the present case claims that
there has been an interference with his rights as a result of the mere
existence of legislation permitting secret surveillance measures and a risk of
being subjected to such measures, rather than as a result of any specific
surveillance measures applied to him.
175. The Court notes that the contested legislation institutes a system of
secret surveillance under which any person using the mobile-telephone
services of Russian providers can have his mobile-telephone
communications intercepted, without ever being notified of the surveillance.
To that extent, the legislation in question directly affects all users of these
mobile-telephone services.
176. Furthermore, for the reasons set out below (see
paragraphs 286-300), Russian law does not provide for effective remedies
for a person who suspects that he was subjected to secret surveillance.
177. In view of the above finding, the applicant does not need to
demonstrate that, due to his personal situation, he is at risk of being
subjected to secret surveillance.
178. Having regard to the secret nature of the surveillance measures
provided for by the contested legislation, the broad scope of their
application, affecting all users of mobile-telephone communications, and the
lack of effective means to challenge the alleged application of secret
surveillance measures at domestic level, the Court considers an examination
of the relevant legislation in abstracto to be justified.