ROMAN ZAKHAROV v. RUSSIA – SEPARATE OPINIONS
83
CONCURRING OPINION OF JUDGE DEDOV
1. Competence of the Court to examine the domestic law in abstracto
As pointed out by the Government, doubts may exist as to the Court’s
competence to examine the quality and effectiveness of the domestic law in
abstracto without the applicant’s victim status being established and
without determining that there had been an interference with his right to
respect for his private life in practice, and not merely theoretically.
This approach has already been used by the Court in interception cases in
order to prevent potential abuses of power. In two leading cases, Kennedy v.
the United Kingdom (no. 26839/05, §§ 122-23, 18 May 2010) and Klass and
Others v. Germany (6 September 1978, § 34, Series A no. 28), against two
prominent democratic States, namely the United Kingdom and Germany,
the Court confirmed the effectiveness of the relevant domestic systems
against arbitrariness. However, and regrettably, we cannot ignore the fact
that both of these States have recently been involved in major wellpublicised surveillance scandals. Firstly, the mobile-telephone
conversations of the Federal Chancellor of Germany were unlawfully
intercepted by the national secret service, and, secondly, the UK authorities
provided a secret service of the United States of America with access to and
information about the former State’s entire communication database, with
the result that the US authorities were able to intercept all UK citizens
without being subject to any appropriate domestic safeguards at all.
This indicates that something was wrong with the Court’s approach from
the very outset. It would perhaps be more effective to deal with applications
on an individual basis, so that the Court has an opportunity to establish
interference and to find a violation of the Convention, as indeed it regularly
finds in relation to unjustified searches of applicants’ premises. Generally
speaking, the problem in those cases does not concern the authorisation
powers of the domestic courts, but the manner in which the judges authorise
the requests for investigative searches.
The Court’s approach can easily shift from the actual application of the
law to the potential for interference. Here are examples from Kennedy:
“119. The Court has consistently held in its case-law that its task is not normally to
review the relevant law and practice in abstracto, but to determine whether the
manner in which they were applied to, or affected, the applicant gave rise to a
violation of the Convention (see, inter alia, Klass and Others, cited above, § 33; N.C.
v. Italy [GC], no. 24952/94, § 56, ECHR 2002-X; and Krone Verlag GmbH & Co. KG
v. Austria (no. 4), no. 72331/01, § 26, 9 November 2006)”;
and from Klass and Others:
“36. ... The Court finds it unacceptable that the assurance of the enjoyment of a
right guaranteed by the Convention could be thus removed by the simple fact that the