Russian phone spying rules fall foul of article 8

The Grand Chamber held unanimously there had been a violation of article 8 – the right to respect for private life and correspondence.

The case concerned the system of secret interception of mobile telephone communications in Russia. The applicant, an editor-in-chief of a publishing company, complained in particular that mobile network operators in Russia were required by law to install equipment enabling law enforcement agencies to carry out operational-search activities and that, without sufficient safeguards under Russian law, this permitted blanket interception of communications.

The court found that Roman Zakharov was entitled to claim to be a victim of a violation of the Convention, even though he was unable to allege that he had been the subject of a concrete measure of surveillance.

Given the lack of remedies available at national level, as well as the secret nature of the surveillance measures and the fact that they affected all users of mobile telephone communications, the court considered it justified to have examined the relevant legislation not from the point of view of a specific instance of surveillance of which Mr Zakharov had been the victim, but in the abstract.

Furthermore, the court considered that Mr Zakharov did not have to prove that he was even at risk of having his communications intercepted. Indeed, given that the domestic system did not provide an effective remedy to the person who suspected that he or she was subject to secret surveillance, the very existence of the contested legislation amounted in itself to an interference with Mr Zakharov’s rights under article 8.

The court noted that interception of communications pursued the legitimate aims of the protection of national security and public safety, the prevention of crime and the protection of the economic well-being of the country.

However, in view of the risk that a system of secret surveillance set up to protect national security might undermine or even destroy democracy under the cloak of defending it, the court had to be satisfied that there were adequate and effective guarantees against abuse.

It concluded that the Russian legal provisions governing interception of communications did not provide for adequate and effective guarantees against arbitrariness and the risk of abuse which was inherent in any system of secret surveillance, and which was particularly high in a system such as in Russia where the secret services and the police had direct access, by technical means, to all mobile telephone communications.

In particular, the court found shortcomings in the legal framework in the following areas: the circumstances in which public authorities in Russia are empowered to resort to secret surveillance measures; the duration of such measures, notably the circumstances in which they should be discontinued; the procedures for authorising interception as well as for storing and destroying the intercepted data; the supervision of the interception.

Moreover, the effectiveness of the remedies available to challenge interception of communications was undermined by the fact that they were available only to persons who were able to submit proof of interception and that obtaining such proof was impossible in the absence of any notification system or possibility of access to information about interception.