78
ROMAN ZAKHAROV v. RUSSIA JUDGMENT
compatible with the Constitution (see paragraphs 40-43, 50, 82 and 85-87
above). In such circumstances the Court finds it unlikely that a complaint by
the applicant to the Constitutional Court, raising the same issues that have
already been examined by it, would have any prospect of success. Nor is the
Court convinced that a challenge of Order no. 70 before the Supreme Court
or the lower courts would constitute an effective remedy. Indeed, the
applicant did challenge Order no. 70 in the domestic proceedings. However,
both the District and City Courts found that the applicant had no standing to
challenge the Order because the equipment installed pursuant to it did not in
itself interfere with the privacy of his communications (see
paragraphs 10-11 and 13 above). It is also significant that the Supreme
Court found that Order no. 70 was technical rather than legal in nature (see
paragraph 128 above).
300. In view of the above considerations, the Court finds that Russian
law does not provide for effective remedies to a person who suspects that he
has been subjected to secret surveillance. By depriving the subject of
interception of the effective possibility of challenging interceptions
retrospectively, Russian law thus eschews an important safeguard against
the improper use of secret surveillance measures.
301. For the above reasons, the Court also rejects the Government’s
objection as to non-exhaustion of domestic remedies.
(θ) Conclusion
302. The Court concludes that Russian legal provisions governing
interceptions of communications do not provide for adequate and effective
guarantees against arbitrariness and the risk of abuse which is inherent in
any system of secret surveillance, and which is particularly high in a system
where the secret services and the police have direct access, by technical
means, to all mobile-telephone communications. In particular, the
circumstances in which public authorities are empowered to resort to secret
surveillance measures are not defined with sufficient clarity. Provisions on
discontinuation of secret surveillance measures do not provide sufficient
guarantees against arbitrary interference. Domestic law permits automatic
storage of clearly irrelevant data and is not sufficiently clear as to the
circumstances in which the intercept material will be stored and destroyed
after the end of a trial. The authorisation procedures are not capable of
ensuring that secret surveillance measures are ordered only when “necessary
in a democratic society”. The supervision of interceptions, as it is currently
organised, does not comply with the requirements of independence, powers
and competence which are sufficient to exercise an effective and continuous
control, public scrutiny and effectiveness in practice. The effectiveness of
the remedies is undermined by the absence of notification at any point of
interceptions, or adequate access to documents relating to interceptions.