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ECtHR / Application no. 47143/06 / Judgment

Roman Zakharov v Russia

Deciding Body type:
European Court of Human Rights
Deciding Body:
Grand Chamber
Type:
Decision
Decision date:
04/12/2015

Key facts of the case:

  1. The applicant was born in 1977 and lives in St Petersburg.
  2. The applicant is the editor-in-chief of a publishing company and of an aviation magazine. He is also the chairperson of the St Petersburg branch of the Glasnost Defence Foundation, an NGO monitoring the state of media freedom in the Russian regions, which promotes the independence of the regional mass media, freedom of speech and respect for journalists’ rights, and provides legal support, including through litigation, to journalists.
  3. He was subscribed to the services of several mobile network operators.
  4. On 23 December 2003 he brought judicial proceeding against three mobile network operators, claiming that there had been an interference with his right to the privacy of his telephone communications. He claimed that pursuant to Order no. 70 (see paragraphs 115 to 122 below) of the Ministry of Communications’ predecessor, the State Committee for Communications and Information Technologies, the mobile network operators had installed equipment which permitted the Federal Security Service (“the FSB”) to intercept all telephone communications without prior judicial authorisation. The applicant argued that Order no. 70, which had never been published, unduly restricted his right to privacy. He asked the court to issue an injunction ordering the removal of the equipment installed pursuant to Order no. 70, and to ensure that access to mobile telephone communications was given to authorised persons only. The Ministry of Communications and Information Technologies (hereafter “the Ministry of Communications”) and the St Petersburg and Leningrad Region Department of the FSB were joined as a third party to the proceedings.
  5. On 5 December 2005 the Vasileostrovskiy District Court of St Petersburg dismissed the applicant’s claims. It found that the applicant had not proved that the mobile network operators had transmitted any protected information to unauthorised persons or permitted the unrestricted or unauthorised interception of communications. The equipment to which he referred had been installed to enable law-enforcement agencies to conduct operational-search activities in accordance with the procedure prescribed by law. The installation of such equipment had not in itself interfered with the privacy of the applicant’s communications. The applicant had failed to demonstrate any facts which would warrant a finding that his right to the privacy of his telephone communications had been violated.
  6. The applicant appealed. He claimed, in particular, that the District Court had refused to accept several documents in evidence. Those documents had included two judicial orders authorising the interception of mobile telephone communications retrospectively and an addendum to the standard service provider agreement issued by one of the mobile network operators. One of the judicial orders in question, issued on 8 October 2002, authorised the interception of several people’s mobile telephone communications during the periods from 1 to 5 April, from 19 to 23 June, from 30 June to 4 July and from 16 to 20 October 2001. The other judicial order, issued on 18 July 2003, authorised the interception of a Mr E.’s mobile telephone communications during the period from 11 April to 11 October 2003. As to the addendum, it informed the subscriber that if his number were used to make terrorist threats, the mobile network operator might suspend the provision of the telephone service and transfer the collected data to the law-enforcement agencies. In the applicant’s opinion, the judicial orders and the addendum proved that the mobile network operators and law-enforcement agencies were technically capable of intercepting all telephone communications without obtaining prior judicial authorisation, and routinely resorted to unauthorised interception.
  7. On 26 April 2006 the St Petersburg City Court upheld the judgment on appeal. It confirmed the District Court’s finding that the applicant had failed to prove that his telephone communications had been intercepted. Nor had he shown that there was a danger that his right to the privacy of his telephone communications might be unlawfully infringed. To establish the existence of such a danger, the applicant would have had to prove that the respondents had acted unlawfully. However, mobile network operators were required by law to install equipment enabling law-enforcement agencies to perform operational-search activities and the existence of that equipment did not in itself interfere with the privacy of the applicant’s communications. The refusal to admit the judicial orders of 8 October 2002 and 18 July 2003 in evidence had been lawful, as the judicial orders had been issued in respect of third persons and were irrelevant to the applicant’s case. The City Court further decided to admit in evidence and examine the addendum to the service provider agreement, but found that it did not contain any information warranting reconsideration of the District Court’s judgment.
  8. It can be seen from a document submitted by the applicant that in January 2007 an NGO, “Civilian Control”, asked the Prosecutor General’s office to carry out an inspection of the Ministry of Communications’ Orders in the sphere of interception of communications in order to verify their compatibility with federal laws. In February 2007 an official from the Prosecutor General’s office telephoned “Civilian Control” and asked for copies of the unpublished attachments to Order No. 70, saying that the prosecutor’s office had been unable to obtain them from the Ministry of Communications. In April 2007 the Prosecutor General’s office refused to carry out the requested inspection.

Results (sanctions) and key consequences of the case:

FOR THESE REASONS, THE COURT

  1. Joins, unanimously, to the merits the Government’s objections regarding the applicant’s lack of victim status and non-exhaustion of domestic remedies and declares the application admissible;
  2. Holds, unanimously, that there has been a violation of Article 8 of the Convention and dismisses the Government’s above-mentioned objections;
  3. Holds, unanimously, that there is no need to examine the complaint under Article 13 of the Convention;
  4. Holds, by sixteen votes to one, that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;
  5. Holds, unanimously, (a) that the respondent State is to pay the applicant, within three months, EUR 40,000 (forty thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
  6. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.