54
ROMAN ZAKHAROV v. RUSSIA JUDGMENT
(viii) Available remedies
(α) The applicant
216. The applicant submitted that the questions of notification of
surveillance measures and of the effectiveness of remedies before the courts
were inextricably linked, since there was in principle little scope for
recourse to the courts by the individual concerned unless the latter was
advised of the measures taken without his knowledge and was thus able to
challenge their legality retrospectively (he referred to Weber and Saravia,
cited above).
217. The applicant argued that the remedies available under Russian law
were ineffective. As regards the possibility for the surveillance subject to
apply for judicial review of the measures applied, the burden of proof was
on the claimant to demonstrate that his telephone had been tapped.
However, since those being monitored were not informed of the
surveillance measures unless charged with a criminal offence, the burden of
proof was impossible to satisfy. The copies of domestic judgments
submitted by the Government concerned searches and seizures, that is,
operational-search measures which were known to the person concerned
(see paragraphs 220, 221 and 223 below). The applicant knew of no
publicly available judicial decisions where an interception subject’s
complaint concerning unlawful interception had been allowed. It was also
significant that in none of the judgments produced by the Government had
the domestic courts assessed the proportionality of the contested
operational-search measures. The domestic proceedings brought by the
applicant had also clearly demonstrated that remedies available under
Russian law were ineffective. Moreover, in Avanesyan v. Russia
(no. 41152/06, 18 September 2014) the Court had already found that there
were no effective remedies under Russian law to challenge operationalsearch measures.
218. Lastly, the applicant submitted that an interception subject or the
communications service providers could not challenge the ministerial orders
governing secret interceptions of communications, because those orders
were considered to be technical rather than legal in nature and were
therefore not subject to judicial review, as demonstrated by the decisions
mentioned in paragraph 161 above.
(β) The Government
219. The Government argued that in Russia a person claiming that his
rights had been or were being violated by a State official performing
operational-search activities was entitled to complain to the official’s
superior, the prosecutor or a court, in accordance with section 5 of the
OSAA (see paragraph 83 above).