84
ROMAN ZAKHAROV v. RUSSIA – SEPARATE OPINIONS
person concerned is kept unaware of its violation. A right of recourse to the
Commission for persons potentially affected by secret surveillance is to be derived
from Article 25, since otherwise Article 8 runs the risk of being nullified.”
However, the German and English scandals referred to above confirm
that, sooner or later, the individual concerned will become aware of the
interception. One may find relevant examples in the Russian context (see
Shimovolos v. Russia, no. 30194/09, 21 June 2011). The applicant in the
present case is not aware of any interception of his communications, and
this fact cannot be ignored by the Court.
The Court has on many occasions avoided examining cases in abstracto
(see Silver and Others v. the United Kingdom, 25 March 1983, § 79,
Series A no. 61; Nikolova v. Bulgaria [GC], no. 31195/96, § 60, ECHR
1999-II; Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05,
§§ 68-70, 20 October 2011; Sabanchiyeva and Others v. Russia,
no. 38450/05, § 137, ECHR 2013; and Monnat v. Switzerland,
no. 73604/01, §§ 31-32, ECHR 2006-X). Thus, one can presume that the
interception cases are unique. We then need to know the reasons why the
Court should change its general approach when examining such cases. Yet
we have no idea about what those reasons might be. If the legislation creates
the risk of arbitrariness, then we need to see the outcome of that
arbitrariness. I am not sure that a few examples (unrelated to the applicant’s
case) prove that the entire system of safeguards should be revised and
strengthened. I would accept such an approach if the Court had a huge
backlog of individual repetitive petitions showing that Order no. 70 (on the
connection of interception equipment to operators’ networks) is not
technical in nature but that it creates a structural problem in Russia. If that is
the case, however, we need a pilot procedure and a pilot judgment.
Every case in which the Court has found a violation of the Convention
(more than 15,000 judgments) is based on the abuse of power, even where
the domestic legislation is of good quality. Every abuse of power is a
question of ethics, and cannot be eliminated by legislative measures alone.
The Court has consistently held that its task is not to review domestic law
and practice in abstracto or to express a view as to the compatibility of the
provisions of legislation with the Convention, but to determine whether the
manner in which they were applied or in which they affected the applicant
gave rise to a violation of the Convention (see, among other authorities, in
the Article 14 context, Religionsgemeinschaft der Zeugen Jehovas and
Others v. Austria, no. 40825/98, § 90, 31 July 2008).
Article 34 of the Convention does not institute for individuals a kind of
actio popularis for the interpretation of the Convention; it does not permit
individuals to complain of a law in abstracto simply because they feel that it
contravenes the Convention. In principle, it does not suffice for an
individual applicant to claim that the mere existence of a law violates his
rights under the Convention; it is necessary that the law should have been