Secret surveillance in Russia violates the right to privacy

Zakharov v Russia (European Court of Human Rights, Grand Chamber, Application no. 47143/06, 4 December 2015)

The Grand Chamber of the European Court of Human Rights has unanimously held that the Russian system of secret interception of mobile telephone communications was a violation of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Article 8 guarantees, among other things, the right to respect for private life and correspondence. In addition, the Court accepted that if certain conditions are satisfied an applicant can claim to be the victim of a violation of article 8 due to the mere existence of a secret surveillance measure. The conditions were met in this case, therefore the applicant did not have to demonstrate that he was at risk of being subject to secret surveillance. Instead, the legislation was examined in the abstract.

Facts

The applicant is the editor-in-chief of a publishing company and a magazine. He is also the chairperson of the Glasnost Defence Foundation, an NGO monitoring the state of media freedom in Russia.

The legislation at issue is the Operational Search Activities Act of 12 August 1995 (‘OSAA’) and the Code of Criminal Procedure, which govern the interception of communications. Section 8(2) of the OSAA provides for operational search measures, including of telegraphic communications, which require prior judicial authorisation. However, in urgent cases the operational search measures may be conducted without prior judicial authorisation, especially where a serious offence may be committed or where there is information about events or activities endangering national, military, economic or ecological security. Judicial authorisation must be obtained within forty-eight hours. However, the Court noted that law-enforcement authorities have the technical ability to directly intercept all communications and could in practice side step judicial oversight. The Court noted that Russian law does not provide that a person whose communications are intercepted must be notified, although persons may be notified in limited circumstances.

The Vasileostrovskiy District Court of St Petersburg dismissed the applicant’s claims on the basis that the applicant had failed to demonstrate that the mobile network operators had transmitted any protected information to unauthorised persons or permitted the unrestricted or unauthorised interception of communications. Therefore, the Court found that the applicant had failed to demonstrate any facts which would warrant a finding that his right to privacy had been violated. The St Petersburg City Court upheld the judgement.

Decision

The Court held that the applicant was entitled to challenge the legislation and found that it violated article 8.

The Court held that the applicant was able to show that he was a victim of interference with his article 8 right.

The Court noted that it was not disputed that mobile telephone communications are within the notion of ‘private life’ and correspondence within article 8. The Court accepted the approach in Kennedy v the United Kingdom [2010] ECHR 682 (18 May 2010) that an applicant must show a reasonable likelihood that they had been subject to surveillance, unless there are special reasons.

The Court held that the following factors should be used to determine whether there were special reasons in relation to secret surveillance measures:

• the scope of the legislation permitting secret surveillance and whether the applicant can possibly be affected by it;
• the availability of remedies at the national level.

The Court held that in this case there were special reasons, having regard to the secret nature of the surveillances measures, broad scope of their application and the lack of effective means to challenge the alleged application of secret surveillance measures at domestic level. Therefore, the applicant was not required to show that it was reasonably likely that he was subject to surveillance. 

The Court further concluded, on the basis of the above factors, that the legislation interfered with the applicant’s article 8 rights.

The Court held that the interference with the applicant’s article 8(1) rights was not justified under article 8(2) and therefore there had been a violation of article 8.

The Court reiterated that any interference can only be justified if it is in accordance with the law, pursues one or more legitimate aims to which article 8(2) refers and is necessary in a democratic society in order to achieve any such aim. The Court explained that ‘in accordance with the law’ required the measures to have some basis in domestic law and that the law meets ‘quality requirements’. It was not disputed that the interception of mobile phone communications had a basis in domestic law. Therefore, the issue was whether the law was accessible and contained adequate and effective safeguards and guarantees in order to meet the quality requirements of ‘foreseeability’ and ‘necessity in a democratic society’.

The Court considered the following factors to determine whether the legislation met the quality requirements:

• lack of adequate and effective guarantees against arbitrariness and risk of abuse, in particular because the police have direct access, by technical means, to all mobile phone communications;
• insufficient clarity regarding the circumstances in which public authorities are empowered to resort to secret surveillance;
• automatic storage of clearly irrelevant data;
• authorisation procedures not capable of ensuring that secrete surveillance measures are ordered only when ‘necessary in a democratic society’;
• inadequate judicial supervision of the surveillance; and
• lack of confidence that interceptions are performed lawfully on the basis of proper judicial authorisation.

The Court concluded that the legislation did not meet the quality requirements, and therefore the interference with article 8(1) was not justified under article 8(2).

The Court held, 16:1, that the finding of a violation constituted sufficient satisfaction for any non-pecuniary damages. Justice Ziemele disagreed on this point and would have awarded the 9,000 (EUR) claimed by the applicant in respect of non-pecuniary damage.

Justice Dedov concurred with the majority. However, his Honour noted the danger of examining legislation in abstractum, without the applicant demonstrating a specific violation. His Honour voted for admissibility on account of the fundamental importance of safeguards to protect private communications against arbitrary surveillance. His Honour concluded his judgement with a quote from Edward Snowden: ‘With each court victory, with every change in the law, we demonstrate facts are more convincing than fear. As a society, we rediscover that the value of the right is not what it hides, but in what it protects’.

Commentary

The Court clarified their approach to examining legislation in the abstract, in the context of secret surveillance measures. The Court’s approach, to consider the scope of the scheme and the availability of domestic remedies, recognises the difficulty of demonstrating that an applicant has been subject to surveillance under a secret surveillance regime.

The decision illustrates the Court’s willingness to consider the practical operation of secret surveillance measures, in particular safeguards against abuse, in order to determine whether interference with article 8 rights are justified.

The full text of the decision can be found here.

Kalia Laycock-Walsh is a Summer Clerk at King & Wood Mallesons