Last December, the European Court of Human Rights (ECtHR) sentenced Russia for the judicial Swiss cheese in its legislation on secret surveillance and tapping individuals. A Russian publisher was granted compensation of 40,000 euros.

In an era in which governments are willing to allow intelligence services more far-reaching powers to fight all sorts of threats against national security, it is essential to be continually aware of the far-reaching infringement on the fundamental rights of citizens as their result.

It is essential that such an infringement should be limited to the utmost and that each individual – in her or his private life – is protected against random interference by the authorities.

Zakharov v. Russia

The case concerned the system of secret interception of mobile telephone communications in Russia. Roman Zakharov is editor-in-chief of a publishing house and subscribed to the services of several providers of mobile communication networks.

In December 2003, Zakharov brought judicial proceedings against three providers of mobile communication networks. He complained to a Saint Petersburg court about an infringement on his rights in confidential telephone communications.

Zakharov noted that under Russian law, specifically Ministerial Order no. 70, providers of mobile telecommunication networks are obliged to install equipment that enabled security services to execute operational search activities.

He also argued that the providers of mobile communication networks had allowed unlimited access to the intelligence services without prior judicial authorization.

Zakharov demanded that the court would issue an order to remove the equipment – which was installed on the grounds of the Ministerial Order no. 70 – and to ensure that access to mobile telecommunications would exclusively be granted to authorized individuals.

In December 2005, the court of first instance in Saint Petersburg rejected Zakharov’s claim. This decision remained valid after the Saint Petersburg High Court affirmed the ruling April 2006.

On October 20, 2006, Zakharov lodged a complaint to the ECtHR, stating that the system of secret interception of mobile telephone communications in Russia violated his right to a private life, as protected by Article 8 of the European Convention on Human Rights. On March 11, 2014, the court’s First Chamber, which had been assigned the case, passed it on to the Grand Chamber.

Legal remedy

In its decision, the Grand Chamber of the ECtHR held first of all that the complainant was entitled to claim that he had been a victim of a violation of the European Convention, even though he was unable to allege that he had been the subject of a concrete measure of surveillance.

Given the secret nature of the surveillance measures, their broad scope (affecting all users of mobile telephone communications) and the lack of effective means to challenge them at a national level, the court considered that the complainant didn’t have to prove that his telephone communications risked being tapped.

As the national system didn’t offer an effective legal remedy to people suspecting they are subject to secret surveillance, the contested legislation itself amounted to an interference with the complainant’s right as protected under Article 8 of the European Convention on Human Rights.

It was not in dispute between the parties that interception of mobile telephone communications had had a basis in Russian law, namely the Operational Search Activity Act, the Criminal Code, the Communications Act and Orders issued by the Ministerial Order no. 70.

Neither was there any dispute that the interception of telephone communications pursued legitimate aims, notably the protection of national security and public safety, the prevention of crime and the protection of the economic well-being of the country.

Requirement of necessity

The ECtHR held that, in the context of the interception of the communication, the requirement of a legal framework means that there must be a domestic legal basis to meet the requirements of the rule of law.

Hence, the law must meet standards of quality. The court considered that in cases of a dispute between legislation allowing secret surveillance, the legal basis off the violation is closely related to the question whether the measure is necessary in a democratic society.

For this reason, the court simultaneously studied the requirement of a legal basis and the criteria of necessity. The requirement of the quality of the law doesn’t only imply that domestic law must be accessible and foreseeable in application, but the secret surveillance measures should also only be applied when necessary in a democratic society, especially by offering adequate and effective safeguards and guarantees against abuse.

Safeguards against abuse

The European Court for Human Rights judged that the Russian legal framework concerning interception of telephone communications didn’t offer any adequate or effective safeguards against abuse.

Specifically, the court found deficiencies in the following areas:

• the circumstances in which public authorities are empowered to resort to secret surveillance measures;
• the duration of secret surveillance measures;
• the procedures for destroying and storing intercepted data;
• the procedures for authorising interception;
• the supervision of interception and the notification of the interception;
• the effectiveness of the remedies available.

The court concluded that Russian law did not meet the "quality of law" requirement and was incapable of keeping the interception of communications to what was "necessary in a democratic society." There had accordingly been a violation of Article 8 of the Convention.