46
ROMAN ZAKHAROV v. RUSSIA JUDGMENT
clearly specified in the authorisation by name, telephone number or address
(see, by contrast, the United Kingdom’s and Bulgaria’s legislation
reproduced in Kennedy, cited above, §§ 41 and 160, and Association for
European Integration and Human Rights and Ekimdzhiev, cited above,
§ 13). Nor did domestic law require that the authorisation specify which
communications, or types of communications, should be recorded in order
to limit the law-enforcement authorities’ discretion to determine the scope
of surveillance measures. Russian law did not establish any special rules for
surveillance in sensitive situations, for example where the confidentiality of
journalists’ sources was at stake, or where surveillance concerned privileged
lawyer-client communications.
192. The applicant further submitted that domestic law did not impose
any requirement on the judge to verify the existence of a “reasonable
suspicion” against the person concerned or to apply the “necessity” and
“proportionality” test. The requesting authorities had no obligation to attach
any supporting materials to the interception requests. Moreover, the OSAA
expressly prohibited submission to the judge of certain materials – those
containing information about undercover agents or police informers or
about the organisation and tactics of operational-search measures – thereby
making it impossible for the judge to verify effectively the existence of a
“reasonable suspicion”. Russian law did not require that the judge should
authorise interception only when it was impossible to achieve the legitimate
aims by other less intrusive means.
193. In support of his allegation that judges did not verify the existence
of a “reasonable suspicion” against the person concerned and did not apply
the “necessity” and “proportionality” test, the applicant produced copies of
analytical notes issued by three District Courts in different Russian regions
(the Tambov region, the Tula region and the Dagestan Republic). The courts
summarised their own case-law concerning operational-search measures
involving interference with the privacy of communications or privacy of the
home for the period from 2010-13. One of the courts noted that it refused
authorisation to carry out an operational-search measure if it did not appear
on the list of operational-search measures in the OSAA, if the request for
authorisation was not signed by a competent official or was not reasoned, or
if the case fell under statutory restrictions on the use of that measure (for
example, relating to the person’s status or to the nature of the offence).
Authorisation was given if all of the above conditions were met. Another
court stated that authorisation could also be refused if the request was
insufficiently reasoned, that is, if it did not contain sufficient information
permitting the judge to ascertain that the measure was lawful and justified.
The third court stated that it granted authorisation if requested to do so by
the law-enforcement authorities. It never refused a request for authorisation.
All three courts considered that the request was sufficiently reasoned if it
referred to the existence of information listed in section 8(2) of the OSAA