50
ROMAN ZAKHAROV v. RUSSIA JUDGMENT
such interception even in those cases when it had already been discontinued.
They referred to an appeal judgment of 13 December 2013 in a criminal
case, in which the Supreme Court declared inadmissible as evidence
recordings of telephone conversations obtained under the urgent procedure
without prior judicial authorisation. The Supreme Court had held that,
although a judge had been informed of the interception, no judicial decision
on its lawfulness and necessity had ever been issued.
(vi) Supervision of the implementation of secret surveillance measures
(α) The applicant
202. Regarding supervision of interceptions, the applicant argued at the
outset that in Russia the effectiveness of any supervision was undermined
by the absence of an obligation on the intercepting authorities to keep
records of interceptions carried out by them. Moreover, Order no. 70
explicitly provided that information about interceptions could not be logged
or recorded.
203. The applicant further submitted that in Russia neither the judge
who had issued the interception authorisation nor any other independent
official qualified for judicial office had the power to supervise its
implementation, and in particular to review whether the surveillance
remained within the scope determined by the interception authorisation and
complied with various requirements contained in domestic law.
204. Domestic law did not set out any procedures for the supervision of
interceptions by the President, Parliament and the government. They
certainly had no powers to supervise the implementation of interception
measures in specific cases.
205. As regards supervision by the Prosecutor General and competent
low-level prosecutors, they could not be considered independent because of
their position within the criminal justice system and their prosecuting
functions. In particular, prosecutors gave their approval to all interception
requests lodged by investigators in the framework of criminal proceedings,
and participated in the related court hearings. They could then use the data
obtained as a result of the interception in the framework of their prosecuting
functions, in particular by presenting them as evidence during a trial. There
was therefore a conflict of interest with the prosecutor performing the dual
function of a party to a criminal case and an authority supervising
interceptions.
206. The applicant further submitted that the prosecutors’ supervisory
functions were limited because certain materials, in particular those
revealing the identity of undercover agents or the tactics, methods and
means used by the security services, were outside the scope of their
supervision. The prosecutors’ supervisory powers were also limited in the
area of counter-intelligence, where inspections could be carried out only