ROMAN ZAKHAROV v. RUSSIA JUDGMENT
65
(ε) Authorisation of interceptions
Authorisation procedures
257. The Court will take into account a number of factors in assessing
whether the authorisation procedures are capable of ensuring that secret
surveillance is not ordered haphazardly, irregularly or without due and
proper consideration. These factors include, in particular, the authority
competent to authorise the surveillance, its scope of review and the content
of the interception authorisation.
258. As regards the authority competent to authorise the surveillance,
authorising of telephone tapping by a non-judicial authority may be
compatible with the Convention (see, for example, Klass and Others, cited
above, § 51; Weber and Saravia, cited above, § 115; and Kennedy, cited
above, § 31), provided that that authority is sufficiently independent from
the executive (see Dumitru Popescu v. Romania (no. 2), no. 71525/01, § 71,
26 April 2007).
259. Russian law contains an important safeguard against arbitrary or
indiscriminate secret surveillance. It dictates that any interception of
telephone or other communications must be authorised by a court (see
paragraphs 34 and 44 above). The law-enforcement agency seeking
authorisation for interception must submit a reasoned request to that effect
to a judge, who may require the agency to produce supporting materials (see
paragraphs 37 and 46 above). The judge must give reasons for the decision
to authorise interceptions (see paragraphs 38 and 44 above).
260. Turning now to the authorisation authority’s scope of review, the
Court reiterates that it must be capable of verifying the existence of a
reasonable suspicion against the person concerned, in particular, whether
there are factual indications for suspecting that person of planning,
committing or having committed criminal acts or other acts that may give
rise to secret surveillance measures, such as, for example, acts endangering
national security. It must also ascertain whether the requested interception
meets the requirement of “necessity in a democratic society”, as provided by
Article 8 § 2 of the Convention, including whether it is proportionate to the
legitimate aims pursued, by verifying, for example, whether it is possible to
achieve the aims by less restrictive means (see Klass and Others, cited
above, § 51; Association for European Integration and Human Rights and
Ekimdzhiev, cited above, §§ 79-80; Iordachi and Others, cited above, § 51;
and Kennedy, cited above, §§ 31-32).
261. The Court notes that in Russia judicial scrutiny is limited in scope.
Thus, materials containing information about undercover agents or police
informers or about the organisation and tactics of operational-search
measures may not be submitted to the judge and are therefore excluded from
the court’s scope of review (see paragraph 37 above). The Court considers
that the failure to disclose the relevant information to the courts deprives