Information Note on the Court’s case-law 212

November 2017

Konstantin Moskalev v. Russia - 59589/10

Judgment 7.11.2017 [Section III]

Article 8

Article 8-1

Respect for correspondence

Respect for home

Respect for private life

Covert surveillance without adequate legal safeguards: violation

Article 35

Article 35-1

Exhaustion of domestic remedies

Six-month period

Use by applicants of domestic remedies that were not clearly ineffective: admissible

[This summary also covers the following judgments of 7 November 2017: Zubkov and Others v. Russia (29431/05 et al.), Akhlyustin v. Russia (21200/05) and Moskalev v. Russia (44045/05)]

Facts – The applicants complained, inter alia , about being subjected to covert surveillance, in particular, the interception of their telephone communications. One of the applicants complained about the covert filming of meetings with acquaintances in a rented flat and another about the audio-visual surveillance of his office. They alleged violations of their right to respect for their private life, home and correspondence.

Law – Article 8

(a) Admissibility

(i) Exhaustion of domestic remedies : The Government submitted that the applicants in the cases of Zubkov and Others , Aklyustin and Moskalev had not exhausted domestic remedies as they had not complained to a court under section 5 of the Operational-Search Activities Act (OSAA).

The Court noted that scope of a judicial review complaint under sectio n 5 of the OSAA – irrespective of whether it was lodged in proceedings under Article 125 of the Code of Criminal Procedure (where the criminal investigation was still pending) or under the Judicial Review Act and Chapter 25 of the Code of Civil Procedure – was limited to reviewing whether or not State officials performing surveillance activities had carried out the surveillance in a manner compatible with the applicable legal requirements and whether they had abided by the terms of the judicial authorisatio n. The review did not touch upon the legal and factual grounds for the underlying judicial authorisation, that is, whether there were relevant and sufficient reasons for authorising covert surveillance.

The courts were not required by law to examine the is sues of “necessity in a democratic society”, in particular whether the contested actions answered a pressing social need and were proportionate to any legitimate aims pursued, principles which lay at the heart of the Court’s analysis of complaints under Ar ticle 8 of the Convention.

In the context of Article 8, a judicial review remedy incapable of examining whether the contested interference answered a pressing social need and was proportionate to the aims pursued could not be considered an effective remedy . In view of the above considerations, a judicial review complaint under section 5 of the OSAA was not an effective remedy to be exhausted.

Conclusion : preliminary objection dismissed.

(ii) Compliance with the six-month time-limit : All but one of the app licants had introduced their applications within six months of the final judgment in the criminal proceedings against them. It was significant that they had learned about the covert surveillance during those criminal proceedings.

Setting out the position in the Zubkov and Others case, the Court observed that this was the first time it had undertaken an examination of remedies existing in the Russian legal system for complaints about covert surveillance of which the surveillance subjects had learned in the course of the criminal proceedings against them. Given the uncertainty as to the effectiveness of those remedies – and in particular given that at the material time it could not have been presumed that raising the issue of covert surveillance in the crimin al proceedings was a clearly ineffective remedy – it was not unreasonable for the applicants to have attempted to use an available remedy in order to give the domestic courts an opportunity to put matters right through the national legal system, thereby re specting the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights.

The applicants had only learned about the covert surveillance during the criminal proceedings, when the p rosecution used the intercepted material as evidence to substantiate the cases against them. It was reasonable, in such circumstances, for them to try to bring their grievances to the attention of the domestic courts through the remedies provided by the cr iminal procedural law. There was nothing in the parties’ submissions to suggest that the applicants were aware, or should have become aware, of the futility of such a course of action. Moreover, given the secret nature of surveillance, the defendants may h ave difficulties in obtaining access to documents relating to it. This in turn could prevent them from having a detailed understanding of the circumstances in which the surveillance was carried out and, most importantly, the grounds on which it was ordered . It was therefore not unreasonable for applicants to wait until they had received documents establishing the facts essential for an application to the Court before introducing such an application.

The applicants had thus complied with the six-month rule.

Conclusion : admissible (unanimously).

(b) Merits : The measures aimed at the interception of the applicants’ telephone communications amounted to an interference with the exercise of their rights set out in Article 8 of the Convention.

As to whether the i nterference was “in accordance with the law”, the Court had found in Roman Zakharov that the judicial authorisation procedures provided for by Russian law were not capable of ensuring that covert surveillance measures were not ordered haphazardly, irregula rly or without due and proper consideration. One of the issues identified in that case was that in their everyday practice the Russian courts did not verify whether there was a “reasonable suspicion” against the person concerned and did not apply the “nece ssity” and “proportionality” tests. The Government had not produced any evidence to demonstrate that the Russian courts had acted differently in the applicants’ cases. In particular, they had failed to submit copies of the surveillance authorisations in re spect of the applicants and thereby made it impossible for the Court to verify whether the authorisations were based on a reasonable suspicion or whether “relevant” and “sufficient” reasons had been adduced to justify the surveillance measures.

It was also significant that the applicants had been refused access to the surveillance authorisations. While there might be good reasons to keep all or part of a covert surveillance authorisation secret from its subject even after he or she becomes aware of its exis tence (for example, to avoid revealing working methods, fields of operation and the identity of agents), at the same time, the information contained in the authorisation decision might be critical for legal proceedings challenging the legal and factual gro unds for the surveillance. Accordingly, when dealing with a request for the disclosure of a covert surveillance authorisation, the domestic courts were required to ensure a proper balance between the subject’s interests and the public interest and the surv eillance subject should be granted access to the documents in question unless there were compelling concerns to prevent such a decision.

In the cases of Zubkov and Others , Konstantin Moskalev and Moskalev the Court found that it had not been demonstrated t hat the domestic courts which had authorised the covert surveillance against the applicants had verified whether there was a “reasonable suspicion” against them and had applied the “necessity in a democratic society” and “proportionality” tests.

In Zubkho v the domestic authorities had relied solely on the confidentiality of the authorisations for refusing access and had not carried out any balancing exercise between the applicants’ and the public interests. Moreover, they had failed to specify why disclosu re of the authorisations, after the surveillance had stopped and the recordings had been disclosed, would have jeopardised the effective administration of justice or any other legitimate public interests. That refusal, without any valid reason, to disclose the authorisations had deprived the applicants of any possibility to have the lawfulness of and necessity for the measure reviewed by an independent tribunal in the light of the relevant principles of Article 8.

In Konstantin Moskalev the Court noted that in Roman Zakharov it had found that the “urgent procedure” under section 8(3) of the OSAA did not provide sufficient safeguards to ensure that it was used sparingly and only in duly justified cases. In particular, although Russian law required that a judg e be immediately informed of each instance of urgent interception, the judge had no power to assess whether the use of the urgent procedure was justified. Those defects were also present in Mr Konstantin Moskalev’s case. The judge notified about the urgent interception of the telephone communications did not carry out any judicial review of the police’s decision to tap his telephone and no independent authority had assessed whether the use of the urgent procedure had been justified and was based on reasonab le suspicion.

In Moskalev there was no evidence that any information or documents confirming the suspicion against the applicant had been submitted to the judge. Furthermore, there was no indication that the court had assessed the proportionality of the su rveillance measures or performed a balancing exercise weighing the right to respect for private life and correspondence against the need for surveillance. The only reason advanced by the court to justify the surveillance was that the applicant was suspecte d of a serious criminal offence. Although that reason was undoubtedly relevant it was not in itself sufficient to justify the lengthy and extensive covert surveillance.

Conclusion : violations (unanimously).

The Court also found a breach of the “quality of law” requirement in the Akhlyustin case, which concerned the audio-visual surveillance of the applicant’s office.

As in the Bykov v. Russia case, which concerned the interception of the applicant’s conversation through a hidden radio transmitter, Mr Akhly ustin had enjoyed very few, if any, safeguards in the procedure by which the surveillance measures against him were ordered and implemented. In particular, the legal discretion of the authorities to order the “surveillance” was not subject to any condition s, and its scope and the manner in which it was exercised were not defined; no other specific safeguards were provided for. Given the absence of specific regulations providing safeguards, the Court was not satisfied that the possibility provided by Russian law for the applicant to bring court proceedings for an order declaring the surveillance unlawful or to request the exclusion of its results as unlawfully obtained evidence met the “quality of law” requirements.

Conclusion : violation (unanimously).

The Co urt also found, unanimously, a violation of Article 13 in conjunction with Article 8 in the Konstantin Moskalev case as the applicant did not have at his disposal an effective remedy which would allow the assessment of whether the surveillance measures aga inst him had been in “accordance with the law” and “necessary in a democratic society” and a violation of Article 5 § 4 in respect of one of the applicants in the Zubkov and Others case, finding that his appeal against his detention order had not been exam ined speedily.

(See Roman Zakharov [GC], 47143/06, 4 December 2015, Information Note 191 ); and Bykov v. Russia [GC], 4378/02, 10 March 2009, Information Note 117 ; see also the Factsheet on Mass surveillance )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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