76
ROMAN ZAKHAROV v. RUSSIA JUDGMENT
294. The first of the procedures invoked by the Government is an
appeal, cassation appeal or supervisory-review complaint against the
judicial decision authorising interception of communications. However, the
Constitutional Court stated clearly that the interception subject had no right
to appeal against the judicial decision authorising interception of his
communications (see paragraph 40 above; see also Avanesyan, cited above,
§ 30). Domestic law is silent on the possibility of lodging a cassation
appeal. Given that the Government did not submit any examples of
domestic practice on examination of cassation appeals, the Court has serious
doubts as to the existence of a right to lodge a cassation appeal against a
judicial decision authorising interception of communications. At the same
time, the interception subject is clearly entitled to lodge a supervisoryreview complaint (see paragraph 43 above). However, in order to lodge a
supervisory-review complaint against the judicial decision authorising
interception of communications, the person concerned had to be aware that
such a decision existed. Although the Constitutional Court has held that it is
not necessary to attach a copy of the contested judicial decision to the
supervisory-review complaint (ibid.), it is difficult to imagine how a person
can lodge such a complaint without having at least the minimum
information about the decision he is challenging, such as its date and the
court which has issued it. In the absence of notification of surveillance
measures under Russian law, an individual would hardly ever be able to
obtain that information unless it were to be disclosed in the context of
criminal proceedings against him or there was some indiscretion which
resulted in disclosure.
295. Further, a complaint under Article 125 of the CCrP may be lodged
only by a participant to criminal proceedings while a pre-trial investigation
is pending (see paragraphs 88-89 above). This remedy is therefore available
only to persons who have learned of the interception of their
communications in the framework of criminal proceedings against them. It
cannot be used by a person against whom no criminal proceedings have
been brought following the interception of his communications and who
does not know whether his communications were intercepted. It is also
worth noting that the Government did not submit any judicial decisions
examining a complaint under Article 125 of the CCrP concerning the
interception of communications. They therefore failed to illustrate the
practical effectiveness of the remedy invoked by them with examples from
the case-law of the domestic courts (see, for similar reasoning, Rotaru, cited
above, § 70, and Ananyev and Others, cited above, §§ 109-10).
296. As regards the judicial-review complaint under the Judicial Review
Act, Chapter 25 of the CCP and the new Code of Administrative Procedure
and a civil tort claim under Article 1069 of the Civil Code, the burden of
proof is on the claimant to show that the interception has taken place and
that his rights were thereby breached (see paragraphs 85, 95-96 and 105