52
ROMAN ZAKHAROV v. RUSSIA JUDGMENT
liable for a failure to do so. The prosecutors responsible for supervision of
operational-search activities submitted six-monthly reports to the Prosecutor
General. The reports did not, however, analyse interceptions separately from
other operational-search measures.
(vii) Notification of secret surveillance measures
(α) The applicant
210. The applicant further submitted that Russian law did not provide
that a person whose communications had been intercepted was to be
notified before, during or after the interception. He conceded that it was
acceptable not to notify the person before or during the interception, since
the secrecy of the measure was essential to its efficacy. He argued, however,
that such notification was possible after the interception had ended, “as soon
as it [could] be made without jeopardising the purpose of the restriction” (he
referred to Klass and Others, cited above). In Russia the person concerned
was not notified at any point. He could therefore learn about the interception
only if there was a leak or if criminal proceedings were opened against him,
and the intercepted data were used in evidence.
211. With regard to the possibility of obtaining access to the data
collected in the course of interception, the applicant submitted that such
access was possible only in very limited circumstances. If criminal
proceedings had never been opened or if the charges had been dropped on
other grounds than those listed in the OSAA, the person concerned was not
entitled to have access to the data. Furthermore, before obtaining access, the
claimant had to prove that his communications had been intercepted. Given
the secrecy of the surveillance measures and the lack of notification, such
burden of proof was impossible to satisfy unless the information about the
interception had been leaked. Even after satisfying all those preconditions,
the person could only receive “information about the data collected” rather
than obtain access to the data themselves. Finally, only information that did
not contain State secrets could be disclosed. Given that under the OSAA all
data collected in the course of operational-search activities constituted a
State secret and the decision to declassify them fell to the head of the
intercepting authority, access to interception-related documents depended
entirely on the intercepting authorities’ discretion.
212. A refusal to grant access to the collected data could be appealed
against to a court and the OSAA required the intercepting authorities to
produce, at the judge’s request, “operational-search materials containing
information about the data to which access [had been] refused”. It was
significant that the intercepting authorities were required to submit
“information about the data” rather than the data themselves. Materials
containing information about undercover agents or police informers could