68
ROMAN ZAKHAROV v. RUSSIA JUDGMENT
ensure that it is used sparingly and only in duly justified cases. Thus,
although in the criminal sphere the OSAA limits recourse to the urgency
procedure to cases where there exists an immediate danger that a serious or
especially serious offence may be committed, it does not contain any such
limitations in respect of secret surveillance in connection with events or
activities endangering national, military, economic or ecological security.
Domestic law does not limit the use of the urgency procedure to cases
involving an immediate serious danger to national, military, economic or
ecological security. It leaves the authorities an unlimited degree of
discretion in determining in which situations it is justified to use the nonjudicial urgent procedure, thereby creating possibilities for abusive recourse
to it (ibid.). Furthermore, although Russian law requires that a judge be
immediately informed of each instance of urgent interception, his power is
limited to authorising the extension of the interception measure beyond
forty-eight hours. He has no power to assess whether the use of the urgent
procedure was justified or to decide whether the material obtained during
the previous forty-eight hours is to be kept or destroyed (see, by contrast,
Association for European Integration and Human Rights and Ekimdzhiev,
cited above, § 16). Russian law does not therefore provide for an effective
judicial review of the urgency procedure.
267. In view of the above considerations the Court considers that the
authorisation procedures provided for by Russian law are not capable of
ensuring that secret surveillance measures are not ordered haphazardly,
irregularly or without due and proper consideration.
The authorities’ access to communications
268. The Court takes note of the applicant’s argument that the security
services and the police have the technical means to intercept mobiletelephone communications without obtaining judicial authorisation, as they
have direct access to all communications and as their ability to intercept the
communications of a particular individual or individuals is not conditional
on providing an interception authorisation to the communications service
provider.
269. The Court considers that the requirement to show an interception
authorisation to the communications service provider before obtaining
access to a person’s communications is one of the important safeguards
against abuse by the law-enforcement authorities, ensuring that proper
authorisation is obtained in all cases of interception. In Russia the
law-enforcement authorities are not required under domestic law to show
the judicial authorisation to the communications service provider before
obtaining access to a person’s communications (see, by contrast, the EU
Council Resolution, paragraph 145 above), except in connection with the
monitoring of communications-related data under the CCrP (see
paragraph 48 above). Indeed, pursuant to Orders issued by the Ministry of