ROMAN ZAKHAROV v. RUSSIA JUDGMENT
61
magazine, combined with the fact that it can be accessed by the general
public through an online legal database, the Court does not find it necessary
to pursue further the issue of the accessibility of the domestic law. It will
concentrate instead on the requirements of “foreseeability” and “necessity”.
(β) Scope of application of secret surveillance measures
243. The Court reiterates that national law must define the scope of
application of secret surveillance measures by giving citizens an adequate
indication as to the circumstances in which public authorities are
empowered to resort to such measures – in particular by clearly setting out
the nature of the offences which may give rise to an interception order and a
definition of the categories of people liable to have their telephones tapped
(see paragraph 231 above).
244. As regards the nature of the offences, the Court emphasises that the
condition of foreseeability does not require States to set out exhaustively, by
name, the specific offences which may give rise to interception. However,
sufficient detail should be provided on the nature of the offences in question
(see Kennedy, cited above, § 159). Both the OSAA and the CCrP provide
that telephone and other communications may be intercepted in connection
with an offence of medium severity, a serious offence or an especially
serious criminal offence – that is, an offence for which the Criminal Code
prescribes a maximum penalty of more than three years’ imprisonment –
which has been already committed, is being committed or being plotted (see
paragraphs 31-33 above). The Court considers that the nature of the
offences which may give rise to an interception order is sufficiently clear.
At the same time it notes with concern that Russian law allows secret
interception of communications in respect of a very wide range of criminal
offences, including for example, as pointed out by the applicant,
pickpocketing (see paragraph 182 above; see also, for similar reasoning,
Iordachi and Others, cited above, §§ 43-44).
245. The Court further notes that interceptions may be ordered not only
in respect of a suspect or an accused, but also in respect of a person who
may have information about an offence or may have other information
relevant to the criminal case (see paragraph 32 above). The Court has earlier
found that interception measures in respect of a person who was not
suspected of any offence but could possess information about such an
offence might be justified under Article 8 of the Convention (see Greuter,
cited above). At the same time, the Court notes the absence of any
clarifications in Russian legislation or established case-law as to how the
terms “a person who may have information about a criminal offence” and “a
person who may have information relevant to the criminal case” are to be
applied in practice (see, for similar reasoning, Iordachi and Others, cited
above, § 44).