ROMAN ZAKHAROV v. RUSSIA – SEPARATE OPINIONS
85
applied to his detriment (see Klass and Others, cited above, § 33). These
principles should not be applied arbitrarily.
2. Legislature and judiciary: the Court should respect differences
This case is very important in terms of the separation of functions
between the Court and the Parliamentary Assembly of the Council of
Europe, as it is necessary to separate the powers of the legislature and
judiciary. The Parliamentary Assembly adopts recommendations,
resolutions and opinions which serve as guidelines for the Committee of
Ministers, national governments, parliaments and political parties.
Ultimately, through conventions, legislation and practice, the Council of
Europe promotes human rights, democracy and the rule of law. It monitors
member States’ progress in these areas and makes recommendations
through independent expert monitoring bodies. The European Court of
Human Rights rules on individual or State applications alleging violations
of the civil and political rights set out in the European Convention on
Human Rights. Taking account of the above separation of functions, the
examination of a case in abstracto is similar to an expert report, but not to a
judgment.
Morten Kjaerum, Director of the European Union Agency for
Fundamental Human Rights, addressed a joint debate on fundamental rights
at the European Parliamentary Committee on Civil Liberties, Justice and
Home Affairs on 4 September 2014. The Director pointed out, inter alia, as
follows.
“The Snowden revelations of mass surveillance highlighted the fact that the
protection of personal data is under threat. The protection of the right to privacy is far
from sufficient when we look across Europe today. Following last year’s debates, we
very much welcome the European Parliament’s request to the Fundamental Rights
Agency to further investigate the fundamental rights and safeguards in place in the
context of large-scale surveillance programmes. And of course you will be informed
probably towards the end of this year about the findings of this particular request.
But it’s not only the big surveillance programmes. There are also misgivings about
oversight mechanisms in the area of general data protection. When we give data to
health authorities, to tax authorities, to other institutions, public or private. We see
from the work of the Fundamental Rights Agency that the national oversight
structures in the EU are currently too weak to fulfil their mission. Data protection
authorities, which are established in all Member States have an important role to play
in the enforcement of the overall data protection system, but the powers and resources
of national data protection authorities urgently needs to be strengthened and also their
independence needs to be guaranteed.
Finally, I would also highlight that those who are entrusted to store the data, whether
it is private or public, that the institutions need to be accountable, at a much stronger
level [than] we see today if the safeguards that they create are not sufficiently in
place.”