ROMAN ZAKHAROV v. RUSSIA JUDGMENT
59
Article 8 § 2, are not to be exceeded. In a field where abuse is potentially so
easy in individual cases and could have such harmful consequences for
democratic society as a whole, it is in principle desirable to entrust
supervisory control to a judge, judicial control offering the best guarantees
of independence, impartiality and a proper procedure (see Klass and Others,
cited above, §§ 55-56).
234. As regards the third stage, after the surveillance has been
terminated, the question of subsequent notification of surveillance measures
is inextricably linked to the effectiveness of remedies before the courts and
hence to the existence of effective safeguards against the abuse of
monitoring powers. There is in principle little scope for recourse to the
courts by the individual concerned unless the latter is advised of the
measures taken without his knowledge and thus able to challenge their
legality retrospectively (see Klass and Others, cited above, § 57, and Weber
and Saravia, cited above, § 135) or, in the alternative, unless any person
who suspects that his communications are being or have been intercepted
can apply to courts, so that the courts’ jurisdiction does not depend on
notification to the interception subject that there has been an interception of
his communications (see Kennedy, cited above, § 167).
(ii) Application of the general principles to the present case
235. The Court notes that it has found there to be an interference under
Article 8 § 1 in respect of the applicant’s general complaint regarding the
Russian legislation governing covert interception of mobile-telephone
communications. Accordingly, in its examination of the justification for the
interference under Article 8 § 2, the Court is required to examine whether
the contested legislation itself is in conformity with the Convention.
236. In cases where the legislation permitting secret surveillance is
contested before the Court, the lawfulness of the interference is closely
related to the question whether the “necessity” test has been complied with
and it is therefore appropriate for the Court to address jointly the “in
accordance with the law” and “necessity” requirements (see Kennedy, cited
above, § 155; see also Kvasnica, cited above, § 84). The “quality of law” in
this sense implies that the domestic law must not only be accessible and
foreseeable in its application, it must also ensure that secret surveillance
measures are applied only when “necessary in a democratic society”, in
particular by providing for adequate and effective safeguards and guarantees
against abuse.
237. It has not been disputed by the parties that interceptions of mobiletelephone communications have a basis in domestic law. They are governed,
in particular, by the CCrP and the OSAA, as well as by the Communications
Act and the Orders issued by the Ministry of Communications.
Furthermore, the Court considers it clear that the surveillance measures
permitted by Russian law pursue the legitimate aims of the protection of