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ROMAN ZAKHAROV v. RUSSIA – SEPARATE OPINIONS
These remarks were addressed to the newly elected members of the
European Parliament (rather than to judges), raising issues of concern across
Europe and calling for a more sophisticated system of data protection. The
aim of the speech was to initiate public debate in order to find effective
measures and to promote proper ethical standards in society; the courtroom
is not the place for such a debate.
I would suggest that the Court should focus on a particular interference
and the effectiveness of the measures in place to prevent that specific
violation (as the Court usually does in all other categories of cases). This is
the Court’s primary task: to establish that an interference has taken place
and then to examine whether the interference was lawful and necessary in a
democratic society. It is ethically unacceptable for judges to presume that
every citizen in a particular country could be under unlawful secret
surveillance without knowledge of the facts. A judgment cannot be built on
the basis of allegations.
The Court has used many tools to fight violations. One of them was to
find a violation of Article 10 on account of an intelligence service’s refusal
to provide information to the applicant organisation about individuals
placed under electronic surveillance for a specified period (Youth Initiative
for Human Rights v. Serbia, no. 48135/06, 25 June 2013). In the operative
part of that judgment, the Court invited the Government to ensure that the
disputed information was made available to the applicant organisation
(without waiting for measures to be proposed by the Committee of
Ministers). I recognise this as an effective measure and a judicial success.
3. The “reasonable likelihood” approach should be developed
Establishment of the applicant’s victim status is an integral part of the
judicial process. Article 34 of the Convention provides that “[t]he Court
may receive applications from any person, non-governmental organisation
or group of individuals claiming to be the victim of a violation by one of the
High Contracting Parties of the rights set forth in the Convention or the
Protocols thereto”. The notion of “victim” does not imply the existence of
prejudice (see Brumărescu v. Romania [GC], no. 28342/95, § 50, ECHR
1999-VII).
The Court has previously ruled that, while the existence of a surveillance
regime might interfere with privacy, a claim that this created a violation of
rights was justiciable only where there was a “reasonable likelihood” that a
person had actually been subjected to unlawful surveillance (see Esbester v.
the United Kingdom, no. 18601/91, Commission decision of 2 April 1993,
unreported; Redgrave v. the United Kingdom, no. 20271/92, Commission
decision of 1 September 1993, unreported; and Matthews v. the United
Kingdom, no. 28576/95, Commission decision of 16 October 1996,