60
ROMAN ZAKHAROV v. RUSSIA JUDGMENT
national security and public safety, the prevention of crime and the
protection of the economic well-being of the country (see paragraph 26
above). It therefore remains to be ascertained whether the domestic law is
accessible and contains adequate and effective safeguards and guarantees to
meet the requirements of “foreseeability” and “necessity in a democratic
society”.
238. The Court will therefore assess in turn the accessibility of the
domestic law, the scope and duration of the secret surveillance measures,
the procedures to be followed for storing, accessing, examining, using,
communicating and destroying the intercepted data, the authorisation
procedures, the arrangements for supervising the implementation of secret
surveillance measures, any notification mechanisms and the remedies
provided for by national law.
(α) Accessibility of the domestic law
239. It is common ground between the parties that almost all legal
provisions governing secret surveillance – including the CCrP, the OSAA,
the Communications Act and the majority of the Orders issued by the
Ministry of Communications – have been officially published and are
accessible to the public. The parties disputed, however, whether the
addendums to Order no. 70 by the Ministry of Communications met the
requirements of accessibility.
240. The Court observes that the addendums to Order no. 70 have never
been published in a generally accessible official publication, as they were
considered to be technical in nature (see paragraph 128 above).
241. The Court accepts that the addendums to Order no. 70 mainly
describe the technical requirements for the interception equipment to be
installed by communications service providers. At the same time, by
requiring that the equipment in issue must ensure that the law-enforcement
authorities have direct access to all mobile-telephone communications of all
users and must not log or record information about interceptions initiated by
the law-enforcement authorities (see paragraphs 115-22 above), the
addendums to Order no. 70 are capable of affecting the users’ right to
respect for their private life and correspondence. The Court therefore
considers that they must be accessible to the public.
242. The publication of the Order in the Ministry of Communications’
official magazine SvyazInform, distributed through subscription, made it
available only to communications specialists rather than to the public at
large. At the same time, the Court notes that the text of the Order, with the
addendums, can be accessed through a privately maintained online legal
database, which reproduced it from the publication in SvyazInform (see
paragraph 115 above). The Court finds the lack of a generally accessible
official publication of Order no. 70 regrettable. However, taking into
account the fact that it has been published in an official ministerial