Roman Zakharov v. Russia: Covert Cell Phones surveillance 

by

Dimitrios Papantoniou

CyJurII Overseer

In the digital law case Roman Zakharov v. Russia,[1] in 2015, the European Court of Human Rights (ECtHR) determined that Russia's legislation permitting covert mobile phone surveillance was deficient in legal protections against arbitrariness and misuse, thereby contravening Article 8 (right to respect for private life and correspondence) of the European Convention on Human Rights. The Court determined that Russian legislation failed to satisfy the "quality of law" criterion as it allowed for indiscriminate interception without adequate notification to the surveilled individual or a viable remedy to contest it.

In Roman Zakharov v. Russia, the applicant alleged that the system of secret interception of mobile telephone communications in Russia violated his right to respect for his private life and correspondence, and that he did not have any effective remedy in that respect.

The applicant complained that the system of covert interception of mobile-telephone communications in Russia did not comply with the requirements of Article 8 of the European Convention for Human Rights.

Russian Constitution (Article 23 § 1) guarantees to everyone the right to respect for his private life, personal and family secrets and the right to defend his honour and reputation. It further guarantees the right to respect for correspondence and telephone, postal, telegraph and other communications. That right may be restricted only on the basis of a court order (Article 23 § 2). The Constitution also stipulates that it is not permissible to collect store, use or disseminate information about a person’s private life without his consent. On 2 October 2003, in its decision no. 345-O, the Constitutional Court held that the right to privacy of telephone communications covered all data transmitted, stored or discovered by means of telephone equipment including non-content-based data, such as information about the incoming and outgoing connections of a specified subscriber. The monitoring of such data was also subject to prior judicial authorization. The Russian Criminal Code also highlights the prohibition of unauthorised collection or dissemination of information about the private or family life of a person without his consent. The interception of communications is governed by the Operational Search Activities Act of 12 August 1995, which allow operational-search activities involving interference with the constitutional right to the privacy of postal, telegraphic and other communications transmitted by means of a telecommunications network or mail services, or within the privacy of the home, only under specific circumstances such as following the receipt of information (a) that a criminal offence has been committed, is being committed, or is being plotted; (b) about persons conspiring to commit, or committing, or having committed a criminal offence; or (c) about events or activities endangering the national, military economic or ecological security of the Russian Federation (section 8(2) of the OSAA). The same Act provides the details concerning the storage, use and destruction of collected data, as well as the provisions on judicial review.

The ECtHR, in its judgement, referred to the relevant international and European instruments, such as the UN Resolution no. 68/167, on The Right to Privacy in the Digital Age, adopted by the General Assembly on 18 December 2013, that upheld right to privacy, regarding the surveillance of communications, their interception and the collection of personal data, including mass surveillance, interception and collection and the Council of Europe’s Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 28 January 1981 (ETS 108), which was ratified by Russia, albeit containing a declaration pertinent to personal data falling under State secrecy. The Court based its reasoning on the test in Klass and Others[2] where it asserted that an individual might, under specific circumstances, assert victimhood due to the sheer existence of secret measures or legislation authorizing such measures, without needing to demonstrate that these measures had been directly implemented to them. It was adequate, regarding covert measures, to establish the existence of methods enabling secret surveillance and to demonstrate a reasonable probability that the security services had gathered and stored material pertaining to his private life. The Court also referred to its most recent case on the subject, Kennedy,[3] where it held that sight should not be lost of the special reasons justifying the Court’s departure, in cases concerning secret measures, from its general approach to deny individuals the right to challenge a law in abstracto. The Court noted that the contested legislation instituted a system of secret surveillance under which any person using the mobile-telephone services of Russian providers could have his mobile-telephone communications intercepted, without ever being notified of the surveillance. To that extent, the legislation in question directly affected all users of these mobile-telephone services. The Court therefore found that the applicant was entitled to claim to be the victim of a violation of the Convention, even though he was unable to allege that he has been subject to a concrete measure of surveillance in support of his application. For the same reasons, the mere existence of the contested legislation amounted in itself to an interference with the exercise of his rights under Article 8 of the ECHR. The Court determined that Russian legal regulations concerning the interception of communications lacked sufficient and effective safeguards against arbitrariness and the inherent risk of abuse present in any covert surveillance system, particularly one where secret services and police have direct technical access to all mobile telephone communications. The Court emphasized that deficiencies in the legislative framework seemed to affect the functioning of the secret surveillance system in Russia. Thus, the Court held, unanimously, that there has been a violation of Article 8 of the Convention.

The judgement in Roman Zakharov v. Russia, no. 47143/06, is considered hugely important for future surveillance of mobile communications case-law, since it was a unanimous decision by a leading authority on assessing the compliance of surveillance measures with human rights law. It underscores the necessity of enhancing monitoring and bolstering protections as digital surveillance technologies advance, thereby ensuring the protection of privacy rights in the digital era. As Milanovic highlighted in his commentary of the case, regarding the future importance of this case and its implications on digital law and society, the Court confirmed the majority of its previous jurisprudence and applied the indicated principles rigorously, especially concerning the “reasonable likelihood” test:

… the Court affirmed the relatively broad approach to standing that it had already taken in cases such as Klass and Kennedy. This approach has two strands: (1) if an individual claims that they have themselves been subjected to surveillance, they have to show only a ‘reasonable likelihood’ of being so subjected, rather than having to furnish conclusive proof, which would in most cases be impossible to obtain; (2) alternatively, and very much exceptionally in the Convention system, applicants can challenge the surveillance regulatory framework in abstracto, without alleging that they’ve been spied upon themselves. Roman Zakharov was precisely an example of the latter situation, and so will be the majority of future surveillance cases. [4] (emphasis added).

Finally, as Prudentov noted, where effective remedies pertaining to secret measures exist, applicants must meet a fairly low test of demonstrating that they are "potentially at risk of being subjected to such measures”.[5]

[1] ECtHR, Case of Roman Zakharov v. Russia, (Application no. 47143/06), JUDGMENT, GC, STRASBOURG 4 December 2015.

[2] CASE OF KLASS AND OTHERS v. GERMANY, Application no. 5029/71, JUDGMENT, STRASBOURG, 6 September 1978, https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57510%22]}

[3] CASE OF KENNEDY v. THE UNITED KINGDOM, Application no. 26839/05, JUDGMENT, STRASBOURG,

18 May 2010, FINAL, 18/08/2010, https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-98473%22]}

[4] Marko Milanovic, Blockbuster Strasbourg Judgment on Surveillance in Russia, 7 December 2015,  EJIL:Talk!, https://www.ejiltalk.org/blockbuster-strasbourg-judgment-on-surveil lance-in-russia/

[5] Roman V. Prudentov, Private Life and Surveillance in a Digital Era: Human Rights in European Perspective, https://doi.org/10.38044/2686-9136-2020-1-2-41-52, https://www.digitallawjournal.org/jour/article/view/16