66
ROMAN ZAKHAROV v. RUSSIA JUDGMENT
them of the power to assess whether there is a sufficient factual basis to
suspect the person in respect of whom operational-search measures are
requested of a criminal offence or of activities endangering national,
military, economic or ecological security (see, mutatis mutandis, Liu, cited
above, §§ 59-63). The Court has earlier found that there are techniques that
can be employed which both accommodate legitimate security concerns
about the nature and sources of intelligence information and yet accord the
individual a substantial measure of procedural justice (see, mutatis
mutandis, Chahal v. the United Kingdom, 15 November 1996, § 131,
Reports 1996-V).
262. Furthermore, the Court observes that in Russia the judges are not
instructed, either by the CCrP or by the OSAA, to verify the existence of a
“reasonable suspicion” against the person concerned or to apply the
“necessity” and “proportionality” test. At the same time, the Court notes
that the Constitutional Court has explained in its decisions that the burden
of proof is on the requesting agency to show that interception is necessary
and that the judge examining an interception request should verify the
grounds for that measure and grant authorisation only if he is persuaded that
interception is lawful, necessary and justified. The Constitutional Court has
also held that the judicial decision authorising interception should contain
reasons and refer to specific grounds for suspecting that a criminal offence
has been committed, is being committed, or is being plotted or that activities
endangering national, military, economic or ecological security are being
carried out, as well as that the person in respect of whom interception is
requested is involved in these criminal or otherwise dangerous activities
(see paragraphs 40-42 above). The Constitutional Court has therefore
recommended, in substance, that when examining interception authorisation
requests Russian courts should verify the existence of a reasonable
suspicion against the person concerned and should authorise interception
only if it meets the requirements of necessity and proportionality.
263. However, the Court observes that domestic law does not explicitly
require the courts of general jurisdiction to follow the Constitutional Court’s
opinion as to how a legislative provision should be interpreted if such
opinion has been expressed in a decision rather than a judgment (see
paragraph 106 above). Indeed, the materials submitted by the applicant
show that the domestic courts do not always follow the above-mentioned
recommendations of the Constitutional Court, all of which were contained
in decisions rather than in judgments. Thus, it transpires from the analytical
notes issued by District Courts that interception requests are often not
accompanied by any supporting materials, that the judges of these District
Courts never request the interception agency to submit such materials and
that a mere reference to the existence of information about a criminal
offence or activities endangering national, military, economic or ecological
security is considered to be sufficient for the authorisation to be granted. An