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ROMAN ZAKHAROV v. RUSSIA JUDGMENT
246. The Court also observes that, in addition to interceptions for the
purposes of preventing or detecting criminal offences, the OSAA also
provides that telephone or other communications may be intercepted
following the receipt of information about events or activities endangering
Russia’s national, military, economic or ecological security (see
paragraph 31 above). Which events or activities may be considered as
endangering such types of security interests is not defined anywhere in
Russian law.
247. The Court has previously found that the requirement of
“foreseeability” of the law does not go so far as to compel States to enact
legal provisions listing in detail all conduct that may prompt a decision to
subject an individual to secret surveillance on “national security” grounds.
By their very nature, threats to national security may vary in character and
may be unanticipated or difficult to define in advance (see Kennedy, cited
above, § 159). At the same time, the Court has also emphasised that in
matters affecting fundamental rights it would be contrary to the rule of law,
one of the basic principles of a democratic society enshrined in the
Convention, for a discretion granted to the executive in the sphere of
national security to be expressed in terms of unfettered power.
Consequently, the law must indicate the scope of any such discretion
conferred on the competent authorities and the manner of its exercise with
sufficient clarity, having regard to the legitimate aim of the measure in
question, to give the individual adequate protection against arbitrary
interference (see Liu v. Russia, no. 42086/05, § 56, 6 December 2007, with
further references).
248. It is significant that the OSAA does not give any indication of the
circumstances under which an individual’s communications may be
intercepted on account of events or activities endangering Russia’s national,
military, economic or ecological security. It leaves the authorities an almost
unlimited degree of discretion in determining which events or acts constitute
such a threat and whether that threat is serious enough to justify secret
surveillance, thereby creating possibilities for abuse (see, for similar
reasoning, Iordachi and Others, cited above, § 46).
249. That being said, the Court does not lose sight of the fact that prior
judicial authorisation for interceptions is required in Russia. Such judicial
authorisation may serve to limit the law-enforcement authorities’ discretion
in interpreting the broad terms of “a person who may have information
about a criminal offence”, “a person who may have information relevant to
the criminal case”, and “events or activities endangering Russia’s national,
military, economic or ecological security” by following an established
judicial interpretation of the terms or an established practice to verify
whether sufficient reasons for intercepting a specific individual’s
communications exist in each case. The Court accepts that the requirement