CONCURRING OPINION OF JUDGE DEDOV

1. Competence of the Court to examine the domestic law in abstracto

As pointed out by the Government, doubts may exist as to the Court’s competence to examine the quality and effectiveness of the domestic law in abstracto without the applicant’s victim status being established and without determining that there had been an interference with his right to respect for his private life in practice, and not merely theoretically.

This approach has already been used by the Court in interception cases in order to prevent potential abuses of power. In two leading cases, Kennedy v. the United Kingdom (no. 26839/05, §§ 122-23, 18 May 2010) and Klass and Others v. Germany (6 September 1978, § 34, Series A no. 28), against two prominent democratic States, namely the United Kingdom and Germany, the Court confirmed the effectiveness of the relevant domestic systems against arbitrariness. However, and regrettably, we cannot ignore the fact that both of these States have recently been involved in major well-publicised surveillance scandals. Firstly, the mobile-telephone conversations of the Federal Chancellor of Germany were unlawfully intercepted by the national secret service, and, secondly, the UK authorities provided a secret service of the United States of America with access to and information about the former State’s entire communication database, with the result that the US authorities were able to intercept all UK citizens without being subject to any appropriate domestic safeguards at all.

This indicates that something was wrong with the Court’s approach from the very outset. It would perhaps be more effective to deal with applications on an individual basis, so that the Court has an opportunity to establish interference and to find a violation of the Convention, as indeed it regularly finds in relation to unjustified searches of applicants’ premises. Generally speaking, the problem in those cases does not concern the authorisation powers of the domestic courts, but the manner in which the judges authorise the requests for investigative searches.

The Court’s approach can easily shift from the actual application of the law to the potential for interference. Here are examples from Kennedy :

“119. The Court has consistently held in its case-law that its task is not normally to review the relevant law and practice in abstracto , but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see, inter alia , Klass and Others , cited above, § 33; N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002-X; and Krone Verlag GmbH & Co. KG v. Austria (no. 4) , no. 72331/01, § 26, 9 November 2006)”;

and from Klass and Others :

“36. ... The Court finds it unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation. A right of recourse to the Commission for persons potentially affected by secret surveillance is to be derived from Article 25, since otherwise Article 8 runs the risk of being nullified.”

However, the German and English scandals referred to above confirm that, sooner or later, the individual concerned will become aware of the interception. One may find relevant examples in the Russian context (see Shimovolos v. Russia , no. 30194/09, 21 June 2011). The applicant in the present case is not aware of any interception of his communications, and this fact cannot be ignored by the Court.

The Court has on many occasions avoided examining cases in abstracto (see Silver and Others v. the United Kingdom , 25 March 1983, § 79, Series A no. 61; Nikolova v. Bulgaria [GC], no. 31195/96, § 60, ECHR 1999 ‑ II; Nejdet Åžahin and Perihan Åžahin v. Turkey [GC], no. 13279/05, §§ 68-70, 20 October 2011; Sabanchiyeva and Others v. Russia , no. 38450/05, § 137, ECHR 2013; and Monnat v. Switzerland , no. 73604/01, §§ 31-32, ECHR 2006-X). Thus, one can presume that the interception cases are unique. We then need to know the reasons why the Court should change its general approach when examining such cases. Yet we have no idea about what those reasons might be. If the legislation creates the risk of arbitrariness, then we need to see the outcome of that arbitrariness. I am not sure that a few examples (unrelated to the applicant’s case) prove that the entire system of safeguards should be revised and strengthened. I would accept such an approach if the Court had a huge backlog of individual repetitive petitions showing that Order no. 70 (on the connection of interception equipment to operators’ networks) is not technical in nature but that it creates a structural problem in Russia. If that is the case, however, we need a pilot procedure and a pilot judgment.

Every case in which the Court has found a violation of the Convention (more than 15,000 judgments) is based on the abuse of power, even where the domestic legislation is of good quality. Every abuse of power is a question of ethics, and cannot be eliminated by legislative measures alone.

The Court has consistently held that its task is not to review domestic law and practice in abstracto or to express a view as to the compatibility of the provisions of legislation with the Convention, but to determine whether the manner in which they were applied or in which they affected the applicant gave rise to a violation of the Convention (see, among other authorities, in the Article 14 context, Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria , no. 40825/98, § 90, 31 July 2008).

Article 34 of the Convention does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain of a law in abstracto simply because they feel that it contravenes the Convention. In principle, it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment (see Klass and Others , cited above, § 33). These principles should not be applied arbitrarily.

2. Legislature and judiciary: the Court should respect differences

This case is very important in terms of the separation of functions between the Court and the Parliamentary Assembly of the Council of Europe, as it is necessary to separate the powers of the legislature and judiciary. The Parliamentary Assembly adopts recommendations, resolutions and opinions which serve as guidelines for the Committee of Ministers, national governments, parliaments and political parties. Ultimately, through conventions, legislation and practice, the Council of Europe promotes human rights, democracy and the rule of law. It monitors member States’ progress in these areas and makes recommendations through independent expert monitoring bodies. The European Court of Human Rights rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights. Taking account of the above separation of functions, the examination of a case in abstracto is similar to an expert report, but not to a judgment.

Morten Kjaerum, Director of the European Union Agency for Fundamental Human Rights, addressed a joint debate on fundamental rights at the European Parliamentary Committee on Civil Liberties, Justice and Home Affairs on 4 September 2014. The Director pointed out, inter alia , as follows.

“The Snowden revelations of mass surveillance highlighted the fact that the protection of personal data is under threat. The protection of the right to privacy is far from sufficient when we look across Europe today. Following last year’s debates, we very much welcome the European Parliament’s request to the Fundamental Rights Agency to further investigate the fundamental rights and safeguards in place in the context of large-scale surveillance programmes. And of course you will be informed probably towards the end of this year about the findings of this particular request.

But it’s not only the big surveillance programmes. There are also misgivings about oversight mechanisms in the area of general data protection. When we give data to health authorities, to tax authorities, to other institutions, public or private. We see from the work of the Fundamental Rights Agency that the national oversight structures in the EU are currently too weak to fulfil their mission. Data protection authorities, which are established in all Member States have an important role to play in the enforcement of the overall data protection system, but the powers and resources of national data protection authorities urgently needs to be strengthened and also their independence needs to be guaranteed.

Finally, I would also highlight that those who are entrusted to store the data, whether it is private or public, that the institutions need to be accountable, at a much stronger level [than] we see today if the safeguards that they create are not sufficiently in place.”

These remarks were addressed to the newly elected members of the European Parliament (rather than to judges), raising issues of concern across Europe and calling for a more sophisticated system of data protection. The aim of the speech was to initiate public debate in order to find effective measures and to promote proper ethical standards in society; the courtroom is not the place for such a debate.

I would suggest that the Court should focus on a particular interference and the effectiveness of the measures in place to prevent that specific violation (as the Court usually does in all other categories of cases). This is the Court’s primary task: to establish that an interference has taken place and then to examine whether the interference was lawful and necessary in a democratic society. It is ethically unacceptable for judges to presume that every citizen in a particular country could be under unlawful secret surveillance without knowledge of the facts. A judgment cannot be built on the basis of allegations.

The Court has used many tools to fight violations. One of them was to find a violation of Article 10 on account of an intelligence service’s refusal to provide information to the applicant organisation about individuals placed under electronic surveillance for a specified period ( Youth Initiative for Human Rights v. Serbia , no. 48135/06, 25 June 2013). In the operative part of that judgment, the Court invited the Government to ensure that the disputed information was made available to the applicant organisation (without waiting for measures to be proposed by the Committee of Ministers). I recognise this as an effective measure and a judicial success.

3. The “reasonable likelihood” approach should be developed

Establishment of the applicant’s victim status is an integral part of the judicial process. Article 34 of the Convention provides that “[t]he Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto”. The notion of “victim” does not imply the existence of prejudice (see Brumărescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999 ‑ VII).

The Court has previously ruled that, while the existence of a surveillance regime might interfere with privacy, a claim that this created a violation of rights was justiciable only where there was a “reasonable likelihood” that a person had actually been subjected to unlawful surveillance (see Esbester v. the United Kingdom , no. 18601/91, Commission decision of 2 April 1993, unreported; Redgrave v. the United Kingdom , no. 20271/92, Commission decision of 1 September 1993, unreported; and Matthews v. the United Kingdom , no. 28576/95, Commission decision of 16 October 1996, unreported). These references are to inadmissibility decisions, since all of the allegations of interception were considered manifestly ill-founded.

However, the Court changed its approach completely in Kennedy : “... it could not be excluded that secret surveillance measures were applied to him or that [the applicant] was ... potentially at risk of being subjected to such measures” (see Kennedy , cited above, §§ 125-29). Today we see that this change in the case-law was not effective.

The term “reasonable likelihood” implies that there are negative consequences for an applicant who is potentially subject to secret surveillance, on account of certain information that is made available to the authorities through interception, and excluding the possibility that this information could be uncovered by other means. The Court made this approach dangerously simple in order to examine the merits of these cases, presuming that persons who are subject to secret supervision by the authorities are not always subsequently informed of such measures against them, and thus it is impossible for the applicants to show that any of their rights have been interfered with. In these circumstances the Court concluded that applicants must be considered to be entitled to lodge an application even if they cannot show that they are victims. The applicants in Klass and Others and Liberty and Others v. the United Kingdom (no. 58243/00, 1 July 2008) were lawyers and theoretically they could have been subject to secret surveillance in consequence of contacts they may have had with clients suspected of illegal activities (see Klass and Others , § 27).

In Kennedy the applicant alleged that local calls to his telephone were not being put through to him and that he was receiving a number of time-wasting hoax calls. The applicant suspected that this was because his mail, telephone and email communications were being intercepted, and the Court took this into serious consideration, rejecting the Government’s objections that the applicant had failed to show that there had been interference for the purposes of Article 8, and that he had not established a reasonable likelihood. The Court also rejected the non-exhaustion submissions, in spite of the fact that the applicant had not checked the quality of telecommunications services with his operator, but had made subject access requests to MI5 and GCHQ (the United Kingdom’s intelligence agencies responsible for national security) under the Data Protection Act 1998.

Returning to the circumstances of the present case, it can reasonably be concluded that the interconnection between the telecommunication equipment and the interception equipment does not necessarily mean that interception of the applicant’s telephone conversations has actually taken place. Nor can the Court base its findings on the presumption of the “possibility of improper action by a dishonest, negligent or over-zealous official” (see Klass and Others , §§ 49-50 and 59; Weber and Saravia v. Germany (dec.), no. 54934/00, § 106, ECHR 2006 ‑ XI; and Kennedy , §§ 153 ‑ 54). Equally, the Court cannot presume in general (in order to examine the case in abstracto ) the existence of State violence against the opposition movements and other democratic institutions in the respondent State, even if corresponding resolutions have been adopted by the Parliamentary Assembly. The Court must maintain its impartiality and neutrality.

4. Role of the judiciary in civil society

Nonetheless, I have voted for admissibility and for the finding of a violation of Article 8 of the Convention on account of the fact that the fundamental importance of safeguards to protect private communications against arbitrary surveillance, especially in the non-criminal context, was never addressed in the domestic proceedings. The Russian courts refused to address the applicant’s allegations on the merits, mistakenly referring to the technical nature of the impugned ministerial orders. As a national judge, I cannot ignore the fact that a widespread suspicion exists in Russian society that surveillance is exercised over political and economic figures, including human rights activists, opposition activists and leaders, journalists, State officials, managers of State property – in other words, over all those who are involved in public affairs. Such a suspicion is based on past experience of the totalitarian regime during the Soviet era, and even on the long history of the Russian Empire.

This judgment could serve as a basis for improving the legislation in the sphere of operational and search activities and for establishing an effective system of public control over surveillance. Moreover, this judgment demonstrates that if widespread suspicion exists in society, and if there is no other possibility for society to lift this suspicion without a social contract and appropriate changes in national law and practice, then where the problem is not identified by the other branches of power the judiciary must be active in order to facilitate those changes. This is even more obvious if there are no other means available to protect democracy and the rule of law. This is an important role which the judiciary must play in civil society.

The Court could be criticised for failing to provide more specific reasoning for its in abstracto examination within the social context, with the observation that the Court has merely followed its own Chamber case-law. However, the judgment in the present case is a difficult one, since before reaching their conclusion the judges had to take care to establish whether or not all other means were useless. In contrast, in the case of Clapper v. Amnesty International USA (568 US 398 (2013), the US Supreme Court failed to take a step forward, despite the existence of a mass surveillance programme and “the widespread suspicion” of its existence (or, in the words of Justice Breyer in his dissenting opinion, “[the harm] is as likely to take place as are most future events that common-sense inference and ordinary knowledge of human nature tell us will happen”). Instead, it rejected as insufficient the argument by the plaintiffs (including human rights, legal and media organisations) that they were likely to be subject to surveillance due to the nature of their work.

I shall stop here, leaving the discussions on judicial aggression, activism or restraint for academics. I should like merely to close my opinion by quoting 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 a right is not in what it hides, but in what it protects.”