ROMAN ZAKHAROV v. RUSSIA – SEPARATE OPINIONS
87
unreported). These references are to inadmissibility decisions, since all of
the allegations of interception were considered manifestly ill-founded.
However, the Court changed its approach completely in Kennedy: “... it
could not be excluded that secret surveillance measures were applied to him
or that [the applicant] was ... potentially at risk of being subjected to such
measures” (see Kennedy, cited above, §§ 125-29). Today we see that this
change in the case-law was not effective.
The term “reasonable likelihood” implies that there are negative
consequences for an applicant who is potentially subject to secret
surveillance, on account of certain information that is made available to the
authorities through interception, and excluding the possibility that this
information could be uncovered by other means. The Court made this
approach dangerously simple in order to examine the merits of these cases,
presuming that persons who are subject to secret supervision by the
authorities are not always subsequently informed of such measures against
them, and thus it is impossible for the applicants to show that any of their
rights have been interfered with. In these circumstances the Court concluded
that applicants must be considered to be entitled to lodge an application
even if they cannot show that they are victims. The applicants in Klass and
Others and Liberty and Others v. the United Kingdom (no. 58243/00, 1 July
2008) were lawyers and theoretically they could have been subject to secret
surveillance in consequence of contacts they may have had with clients
suspected of illegal activities (see Klass and Others, § 27).
In Kennedy the applicant alleged that local calls to his telephone were not
being put through to him and that he was receiving a number of timewasting hoax calls. The applicant suspected that this was because his mail,
telephone and email communications were being intercepted, and the Court
took this into serious consideration, rejecting the Government’s objections
that the applicant had failed to show that there had been interference for the
purposes of Article 8, and that he had not established a reasonable
likelihood. The Court also rejected the non-exhaustion submissions, in spite
of the fact that the applicant had not checked the quality of
telecommunications services with his operator, but had made subject access
requests to MI5 and GCHQ (the United Kingdom’s intelligence agencies
responsible for national security) under the Data Protection Act 1998.
Returning to the circumstances of the present case, it can reasonably be
concluded that the interconnection between the telecommunication
equipment and the interception equipment does not necessarily mean that
interception of the applicant’s telephone conversations has actually taken
place. Nor can the Court base its findings on the presumption of the
“possibility of improper action by a dishonest, negligent or over-zealous
official” (see Klass and Others, §§ 49-50 and 59; Weber and Saravia v.
Germany (dec.), no. 54934/00, § 106, ECHR 2006-XI; and Kennedy,
§§ 153-54). Equally, the Court cannot presume in general (in order to