ROMAN ZAKHAROV v. RUSSIA JUDGMENT
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220. As explained by the Plenary Supreme Court, if the person
concerned learned of the interception, he could apply to a court of general
jurisdiction in accordance with the procedure established by Chapter 25 of
the CCP (see paragraph 92 above). According to the Government, a
claimant did not have to prove that his rights had been breached as a result
of the interception measures. The burden of proof was on the intercepting
authorities to show that the interception measures had been lawful and
justified. Russian law provided that if a breach of the claimant’s rights was
found by a court in civil proceedings, the court had to take measures to
remedy the violation and compensate the damage (see paragraph 97 above).
The Government submitted copies of two judicial decisions under Chapter
25 of the CCP, declaring searches and seizures of objects or documents
unlawful and ordering the police to take specific measures to remedy the
violations.
221. Furthermore, according to the Government, the interception subject
was also entitled to lodge a supervisory-review complaint against the
judicial decision authorising the interception, as explained by the
Constitutional Court in its decision of 15 July 2008 (see paragraph 43
above). He was likewise entitled to lodge an appeal or a cassation appeal.
222. If the interception was carried out in the framework of criminal
proceedings, the person concerned could also lodge a complaint under
Article 125 of the CCrP. The Government referred to the Supreme Court’s
decision of 26 October 2010 quashing, by way of supervisory review, the
lower courts’ decisions to declare inadmissible K.’s complaint under
Article 125 of the CCrP regarding the investigator’s refusal to give her a
copy of the judicial decision authorising the interception of her
communications. The Supreme Court held that her complaint was to be
examined under Article 125 of the CCrP, despite the fact that she had
already been convicted, and that she was entitled to receive a copy of the
interception authorisation. The Government submitted copies of ten judicial
decisions allowing complaints under Article 125 of the CCrP concerning
unlawful searches and seizures of objects or documents. They also produced
a copy of a judgment acquitting a defendant on appeal after finding that his
conviction at first instance had been based on inadmissible evidence
obtained as a result of an unlawful test purchase of drugs.
223. The Government further submitted that the person concerned could
apply for compensation under Article 1069 of the Civil Code (see
paragraph 102 above). That Article provided for compensation of pecuniary
and non-pecuniary damage caused to an individual or a legal entity by
unlawful actions by State and municipal bodies and officials, provided that
the body’s or the official’s fault had been established. Compensation for
non-pecuniary damage was determined in accordance with the rules set out
in Articles 1099 to 1101 of the Civil Code (see paragraphs 103-04 above).
The Government observed, in particular, that non-pecuniary damage caused