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ECHR, Russian Federation: Breaches of Human Rights in Surveillance Legislation

(Mar. 2, 2016) The European Court of Human Rights (ECHR), in a decision issued on December 4, 2015, in the case of Roman Zakharov v. Russia, ruled on the legality of Russia’s regulations on administering the System for Ensuring Investigative Activities (SORM legislation) under article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms. (Case of Roman Zakharov v. Russia, App. No. 47143/06 (Eur. Ct. H. Rts., Dec. 4, 2015), HUDOC; Convention for the Protection of Human Rights and Fundamental Freedoms (1950, as amended to June 1, 2010), ECHR website.) The ECHR held that the legislation “institutes a system which cannot protect individuals from secret surveillance” and “any person using mobile telephone services of Russian providers can have his or her mobile telephone communications intercepted, without ever being notified of the surveillance.” (Case of Roman Zakharov v. Russia, ¶ 175.)

Russian SORM Legislation

Russian SORM legislation consists of a set of regulations issued over the years by the Federal Council of Ministers and the Ministry of Communications and Information Technologies requiring telecommunications service providers to purchase and maintain communications interception equipment on their own as a requirement to stay in business and to conclude a nondisclosure agreement with the Federal Security Service (FSB) guaranteeing access by intelligence and other special services to communications conducted over the operated network. SORM legislation originated in 1997 with the Order of the Russian Federation Communications Ministry No. 25 of February 18, 1997, on Cooperation Between Communications Organizations and the Federal Security Service in Conducting Investigative Activities over Electronic Communications Networks (available at LAWMIX.RU (in Russian)) and subsequent regulations specifying technical requirements for surveillance equipment.

Neither telecom operators nor individuals whose conversations were intercepted were supposed to know about the fact of interception. (Order of the Russian Federation Ministry of Communications, No. 130 of July 25, 2000, on Procedures to Implement Technical Means for Conducting Investigative Activities on Telephone, Mobile, Wireless, and Radio Communications Networks, ALPP.RU (in Russian).)

The Order also stated that, even though obtaining a court warrant is mandatory in order to monitor communications, in exceptional situations interception will be allowed without permission from a court. (Id. § 2.) The Russian Criminal Procedural Code requires that in order to request a judicial decision to permit surveillance, the investigating authority must prove that sufficient evidence exists that telephone or other conversations of a suspect or others may contain information significant for the investigation of a criminal case. (Criminal Procedure Code, art. 186(1), SZ RF 2001, No. 52(I), Item 4921, UPKOD.RU (in Russian).)

Russian Courts’ Review of SORM Legislation

In 1999, the Constitutional Court of the Russian Federation evaluated the constitutionality of the Law on Operational and Investigative Activities, a legal act that defines how police surveillance operations and the collection of information by law enforcement agencies are to be conducted. With regard to the legality of provisions regulating the right of law enforcement authorities to eavesdrop on personal telephone conversations before bringing formal criminal charges against an individual, the Court said that such activities are in accordance with major constitutional principles if conducted for the purpose of the public good and performed after obtaining judicial approval. The Court further stated that such surveillance can be conducted secretly and that the person subject to surveillance, if not yet indicted, need not be informed about the monitoring of his/her communications. According to the Court, there is no need to inform the targeted individual, because at the time of judicial approval of surveillance the person is not yet a party to a court case. (Constitutional Court of the Russian Federation, Ruling No. 18-O/1999 (Feb. 4, 1999), SUDBIBLIOTEKA.RU (in Russian).)

In September 2000, the Supreme Court of the Russian Federation reviewed SORM practices and found that SORM regulations were silent about the FSB’s requirement to inform communications operators about who was being monitored and on what basis. The Supreme Court ordered the security services to obtain court warrants for surveillance activities and to inform service providers about the client subject to interception, but avoided addressing the issue of the requirement to inform the subject of communications monitoring about ongoing surveillance. (Supreme Court of the Russian Federation, Ruling No. GKPI-1064 of Sept. 25, 2000, ROSIISKAIA GAZETA (ROS. GAZ.) [OFFICIAL GAZETTE] (Nov. 24, 2000) (in Russian).)

However, based on subsequent laws and regulations, investigators have refused to show court orders authorizing surveillance and interception to Internet providers and continue to collect all information by themselves, despite the requirement to inform the Internet provider concernedof the existence of the governing court order. (Government Regulation No. 538 of August 27, 2005 on Cooperation Between Internet Operators and Government Authorities Conducting Investigative Activities, ROS.GAZ. (Sept. 2, 2005), GARANT.RU (in Russian).)

ECHR Decision

In 2003, Roman Zakharov, head of a non-government organization that monitors media freedom in the city of Saint Petersburg, brought judicial proceedings against mobile network operators to whose services he subscribed, accusing them of providing information about his telephone conversations to unauthorized government agents and requesting that the telecom companies remove surveillance equipment installed under SORM legislation. All of his claims and appeals were dismissed by Russian courts. (Case of Roman Zakharov v. Russia, ¶¶ 7-12.)

The ECHR accepted the case and noted that, although “domestic law required prior judicial authorization for interceptions, the authorization procedure did not provide for sufficient safeguards against abuse. Firstly, in urgent cases communications could be intercepted without judicial authorization for up to forty-eight hours.” Secondly, in contrast to the Code of Criminal Procedure, documents issued by the Ministry of Communications, in the opinion of the Court, “do not provide for any requirements concerning the content of the interception authorization.” (Id. ¶ 145.) Also, the Court established that domestic law does not require that the authorization specify which communications, or types of communications, should be recorded in order to limit the law-enforcement authorities’ discretion to determine the scope of surveillance measures. Russian law did not establish any special rules for surveillance in sensitive situations—for example, where the confidentiality of journalists’ sources was at stake, or where surveillance concerned privileged lawyer-client communications. (Id. ¶ 191.)

Similarly, “the domestic law did not impose any requirement on the judge to verify the existence of a ‘reasonable suspicion’ against the person concerned or to apply the ‘necessity’ and ‘proportionality’ test. The requesting authorities had no obligation to attach any supporting materials to the interception requests.” (Id. ¶ 192.) Finally, the Court concluded that current Russian legislation does not provide for effective remedies for, or contain effective safeguards against, the abuse of monitoring powers. (Id. ¶ 234.)

Reaction to the Decision

Russian commentators believe that the ruling will have very important legal consequences, because it makes clear to the Russian government the urgent necessity of reforming its monitoring legislation. (Anastasiia Kornia, ECHR Recognized that SORM Is Not in Line with European Convention, VEDOMOSTI (Dec. 4, 2015) (in Russian).)