ROMAN ZAKHAROV v. RUSSIA JUDGMENT
77
above). In the absence of notification or some form of access to official
documents relating to the interceptions, such a burden of proof is virtually
impossible to satisfy. Indeed, the applicant’s judicial complaint was rejected
by the domestic courts on the ground that he had failed to prove that his
telephone communications had been intercepted (see paragraphs 11 and 13
above). The Court notes that the Government submitted several judicial
decisions taken under Chapter 25 of the CCP or Article 1069 of the Civil
Code (see paragraphs 220-23 above). However, all of those decisions, with
one exception, concern searches or seizures of documents or objects, that is,
operational-search measures carried out with the knowledge of the person
concerned. Only one judicial decision concerns interception of
communications. In that case the intercept subject was able to discharge the
burden of proof because she had learned of the interception of her
communications in the course of criminal proceedings against her.
297. Further, the Court takes note of the Government’s argument that
Russian law provides for criminal remedies for abuse of power,
unauthorised collection or dissemination of information about a person’s
private and family life and breach of citizens’ right to privacy of
communications. For the reasons set out in the preceding paragraphs these
remedies are also available only to persons who are capable of submitting to
the prosecuting authorities at least some factual information about the
interception of their communications (see paragraph 24 above).
298. The Court concludes from the above that the remedies referred to
by the Government are available only to persons who are in possession of
information about the interception of their communications. Their
effectiveness is therefore undermined by the absence of a requirement to
notify the subject of interception at any point, or an adequate possibility of
requesting and obtaining information about interceptions from the
authorities. Accordingly, the Court finds that Russian law does not provide
for an effective judicial remedy against secret surveillance measures in
cases where no criminal proceedings were brought against the interception
subject. It is not the Court’s task in the present case to decide whether these
remedies will be effective in cases where an individual learns about the
interception of his communications in the course of criminal proceedings
against him (see, however, Avanesyan, cited above, where some of these
remedies were found to be ineffective in order to complain of an
“inspection” of the applicant’s flat).
299. Lastly, with respect to the remedies to challenge the alleged
insufficiency of safeguards against abuse in Russian law before the Russian
courts, the Court is not convinced by the Government’s argument that such
remedies are effective (see paragraphs 156 and 225 above). As regards the
possibility of challenging the OSAA before the Constitutional Court, the
Court observes that the Constitutional Court has examined the
constitutionality of the OSAA on many occasions and found that it was