ROMAN ZAKHAROV v. RUSSIA JUDGMENT
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179. The Court therefore finds that the applicant is entitled to claim to be
the victim of a violation of the Convention, even though he is unable to
allege that he has been subject to a concrete measure of surveillance in
support of his application. For the same reasons, the mere existence of the
contested legislation amounts in itself to an interference with the exercise of
his rights under Article 8. The Court therefore dismisses the Government’s
objection concerning the applicant’s lack of victim status.
2. The justification for the interference
(a) The parties’ submissions
(i) Accessibility of domestic law
180. The applicant submitted that the addendums to Order no. 70
describing the technical requirements for the equipment to be installed by
communications service providers had never been officially published and
were not accessible to the public. In the applicant’s opinion, in so far as they
determined the powers of the law-enforcement authorities with regard to
secret surveillance, they affected citizens’ rights and ought therefore to have
been published. The fact that the applicant had eventually had access to the
addendums in the domestic proceedings could not remedy the lack of an
official publication (he referred to Kasymakhunov and Saybatalov v. Russia,
nos. 26261/05 and 26377/06, § 92, 14 March 2013). Citizens should not be
required to engage judicial proceedings to obtain access to regulations
applicable to them. The Court had already found that it was essential to have
clear, detailed and accessible rules on the application of secret measures of
surveillance (Shimovolos v. Russia, no. 30194/09, § 68, 21 June 2011).
181. The Government submitted that Order no. 70 was technical in
nature and was not therefore subject to official publication. It had been
published in a specialised magazine, SvyazInform (issue no. 6 of 1999). It
was also available in the ConsultantPlus online legal database, and was
accessible without charge. The applicant had submitted a copy of the Order
with its addendums to the Court, which showed that he had been able to
obtain access to it. The domestic law was therefore accessible.
(ii) Scope of application of secret surveillance measures
182. The applicant submitted that the Court had already found that the
OSAA did not meet the “foreseeability” requirement because the legal
discretion of the authorities to order “an operative experiment” involving
recording of private communications through a radio-transmitting device
was not subject to any conditions, and the scope and the manner of its
exercise were not defined (see Bykov v. Russia [GC], no. 4378/02, § 80,
10 March 2009). The present case was similar to that in Bykov. In particular,
Russian law did not clearly specify the categories of persons who might be