Europos Žmogaus Teisių Teismas
2015 m. gruodžio 4 d.
Facts
The applicant, who was the editor-in-chief of a publishing company, brought judicial proceedings against 3 mobile network operators, complaining of interference with his right to privacy of his telephone communications. He claimed that under the relevant domestic law, the mobile network operators had installed equipment which permitted the Federal Security Service (FSB) to intercept all telephone communications without prior judicial authorisation. He sought an injunction ordering the removal of the equipment and ensuring that access to telecommunications was given to authorised persons only.
The domestic courts rejected the applicant’s claim, finding that he had failed to prove that his telephone conversations had been intercepted or that the mobile operators had transmitted protected information to unauthorised persons. Installation of the equipment to which he referred did not in itself infringe the privacy of his communications.
Complaint
The applicant complained that the system of covert interception of telephone communications in Russia did not comply with the requirements of Article 8 of the Convention.
Court’s ruling
The mere existence of the contested legislation amounted to an interference with the exercise of the applicant’s rights under Article 8. The interception of mobile telephone communications had a basis in domestic law and 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.
The nature of the offences which could give rise to an interception order was sufficiently clear. However, it was a matter of concern that the domestic law allowed secret interception of communications in respect of a wide range of offences. Furthermore, interception could be ordered not only in respect of a suspect or an accused but also in respect of persons who might have information about an offence. The law left the authorities almost unlimited discretion in determining which events or acts constituted a threat and whether the threat was serious enough to justify secret surveillance. This created possibilities for abuse.
Any interception of communications had to be authorised by a court. However, judicial scrutiny was limited in scope. Materials containing information about undercover agents or police informers or about the organisation and tactics of operational search measures could not be submitted to the judge and were therefore excluded from the court’s scope of review. Thus, the failure to disclose the relevant information to the courts deprived them of the power to assess whether there was a sufficient factual basis. Indeed, Russian judges were not instructed to verify the existence of “reasonable suspicion” against the person concerned or to apply the “necessity” and “proportionality” tests. Courts sometimes authorised the interception of all telephone communications in an area where a criminal offence had been committed, without mentioning a specific person or telephone number. Some authorisations did not mention the duration for which interception was authorised. Such authorisations granted wide discretion to the law-enforcement authorities as to which communications to intercept and for how long. Furthermore, in cases of urgency, it was possible to intercept communications without prior judicial authorisation for up to 48 hours. In sum, the authorisation procedures provided for by Russian law were not capable of ensuring that secret surveillance measures were not ordered haphazardly, irregularly or without due and proper consideration.
Persons whose communications were intercepted were not notified. Unless criminal proceedings were opened against the interception subject and the intercepted data was used in evidence, the person concerned was unlikely ever to find out if his or her communications had been intercepted. The judicial remedies were available only to persons in possession of information about the interception of their communications. Accordingly, Russian law did not provide an effective judicial remedy against secret surveillance measures in cases where no criminal proceedings were brought against the interception subject.
Thus, the domestic legal provisions governing the interception of communications did not provide adequate and effective guarantees against arbitrariness and the risk of abuse. The domestic law did not meet the “quality of law” requirement and was incapable of keeping the “interference” to what was “necessary in a democratic society”. The Court found a violation of Article 8.