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ROMAN ZAKHAROV v. RUSSIA – SEPARATE OPINIONS
examine the case in abstracto) the existence of State violence against the
opposition movements and other democratic institutions in the respondent
State, even if corresponding resolutions have been adopted by the
Parliamentary Assembly. The Court must maintain its impartiality and
neutrality.
4. Role of the judiciary in civil society
Nonetheless, I have voted for admissibility and for the finding of a
violation of Article 8 of the Convention on account of the fact that the
fundamental importance of safeguards to protect private communications
against arbitrary surveillance, especially in the non-criminal context, was
never addressed in the domestic proceedings. The Russian courts refused to
address the applicant’s allegations on the merits, mistakenly referring to the
technical nature of the impugned ministerial orders. As a national judge, I
cannot ignore the fact that a widespread suspicion exists in Russian society
that surveillance is exercised over political and economic figures, including
human rights activists, opposition activists and leaders, journalists, State
officials, managers of State property – in other words, over all those who
are involved in public affairs. Such a suspicion is based on past experience
of the totalitarian regime during the Soviet era, and even on the long history
of the Russian Empire.
This judgment could serve as a basis for improving the legislation in the
sphere of operational and search activities and for establishing an effective
system of public control over surveillance. Moreover, this judgment
demonstrates that if widespread suspicion exists in society, and if there is no
other possibility for society to lift this suspicion without a social contract
and appropriate changes in national law and practice, then where the
problem is not identified by the other branches of power the judiciary must
be active in order to facilitate those changes. This is even more obvious if
there are no other means available to protect democracy and the rule of law.
This is an important role which the judiciary must play in civil society.
The Court could be criticised for failing to provide more specific
reasoning for its in abstracto examination within the social context, with the
observation that the Court has merely followed its own Chamber case-law.
However, the judgment in the present case is a difficult one, since before
reaching their conclusion the judges had to take care to establish whether or
not all other means were useless. In contrast, in the case of Clapper v.
Amnesty International USA (568 US 398 (2013), the US Supreme Court
failed to take a step forward, despite the existence of a mass surveillance
programme and “the widespread suspicion” of its existence (or, in the words
of Justice Breyer in his dissenting opinion, “[the harm] is as likely to take
place as are most future events that common-sense inference and ordinary
knowledge of human nature tell us will happen”). Instead, it rejected as