ROMAN ZAKHAROV v. RUSSIA JUDGMENT
69
Communications, in particular the addendums to Order no. 70,
communications service providers must install equipment giving the
law-enforcement authorities direct access to all mobile-telephone
communications of all users (see paragraphs 115-22 above). The
communications service providers also have an obligation under Order
no. 538 to create databases storing information about all subscribers, and the
services provided to them, for three years; the secret services have direct
remote access to those databases (see paragraphs 132-33 above). The lawenforcement authorities thus have direct access to all mobile-telephone
communications and related communications data.
270. The Court considers that the manner in which the system of secret
surveillance operates in Russia gives the security services and the police
technical means to circumvent the authorisation procedure and to intercept
any communications without obtaining prior judicial authorisation.
Although the possibility of improper action by a dishonest, negligent or
overzealous official can never be completely ruled out whatever the system
(see Klass and Others, cited above, § 59), the Court considers that a system,
such as the Russian one, which enables the secret services and the police to
intercept directly the communications of each and every citizen without
requiring them to show an interception authorisation to the communications
service provider, or to anyone else, is particularly prone to abuse. The need
for safeguards against arbitrariness and abuse appears therefore to be
particularly great.
271. The Court will therefore examine with particular attention whether
the supervision arrangements provided by Russian law are capable of
ensuring that all interceptions are performed lawfully on the basis of proper
judicial authorisation.
(ζ) Supervision of the implementation of secret surveillance measures
272. The Court notes at the outset that Order no. 70 requires that the
equipment installed by the communications service providers not record or
log information about interceptions (see paragraph 120 above). The Court
has found that an obligation on the intercepting agencies to keep records of
interceptions is particularly important to ensure that the supervisory body
has effective access to details of surveillance activities undertaken (see
Kennedy, cited above, § 165). The prohibition on logging or recording
interceptions set out in Russian law makes it impossible for the supervising
authority to discover interceptions carried out without proper judicial
authorisation. Combined with the law-enforcement authorities’ technical
ability, pursuant to the same Order, to intercept directly all communications,
this provision renders any supervision arrangements incapable of detecting
unlawful interceptions and therefore ineffective.
273. As regards supervision of interceptions carried out on the basis of
proper judicial authorisations, the Court will examine whether the