TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): we would point out that, as far as we're aware, it was only since the 1980s that a subjective test in relation to self-defence applied in this context. Secondly, but perhaps
AP1 (Applicant): equally importantly, the English law in fact does apply a mixed approach. In some cases,
AP1 (Applicant): someone can be held liable on an objective basis. The English law in relation to rape
AP1 (Applicant): was recently amended to enable people to be held. Now, the government argues in this context,
AP1 (Applicant): in any event, the reasonableness of an officer's belief will be considered, but it's only considered in order to see whether or not doubt can be cast on honesty. Ultimately, the domestic
AP1 (Applicant): law is clear. An honest but unreasonable belief is a defence, and that's the basis upon
AP1 (Applicant): which decisions were taken in this case. And the facts of this case demonstrate that does
AP1 (Applicant): mean there's a very substantial difference between the approach of this court and the approach in domestic law. There were real issues about the justification for the killing
AP1 (Applicant): in this case, but only the honesty of the officer's belief needed to be considered.
AP1 (Applicant): If they were found to have had an honest belief of threat, that was enough. That is particularly
AP1 (Applicant): troubling, we would submit, in light of one fact that we didn't mention in opening, which is that jury rejected a verdict of lawful killing. So we submit, ultimately, there is
AP1 (Applicant): no answer to our complaints. There was a failure to prosecute in circumstances where domestic
AP1 (Applicant): law had significant deficits. Thank you.
Dean Spielmann (JudgeP): I declare open the public hearing on the admissibility and merits in the case of Roman Zakharov against Russia. The application was lodged with the Court on 20 October 2006 under Article
Dean Spielmann (JudgeP): 34 of the Convention by a Russian national, Mr Roman Andreyevich Zakharov. It was allocated
Dean Spielmann (JudgeP): to the first section of the Court pursuant to Rule 52, paragraph 1 of the Rules of Court and communicated to the Government on 19 October 2009. On 11 March 2014, the Chamber decided
Dean Spielmann (JudgeP): to relinquish jurisdiction in favour of the Grand Chamber, none of the parties having objected to a relinquishment. The Government are represented by their agent, Mr Georgy Matyushkin,
Dean Spielmann (JudgeP): Head of the Office of the Representative of the Russian Federation at the European Court of Human Rights, assisted by Ms Oxana Sirotkina, Ms Irina Korieva, Ms Oksana Iurchenko, Mr Oleg Afanasyev, and Mr Aleksei Lakov, Advisors. The applicant is represented by Mr Philip
Dean Spielmann (JudgeP): Leach, Ms Kate Levine, Mr Kirill Koroteyev, Ms Anastasia Razhikova, Counsel assisted by Ms Elena Levchishina, Advisor. The applicant is also present. I welcome the representatives of the parties and the applicant in the name
Dean Spielmann (JudgeP): of the Court. I also welcome a delegation of judges and prosecutors from the European
Dean Spielmann (JudgeP): Judicial Training Network, a delegation of Russian judges, a delegation of Turkish judges from the Compensations Commission, a delegation of judges and prosecutors from the Kosovo Judicial Institute, a delegation of judges of the Constitutional Court of Belarus, of prosecutors from the Belarus Prosecutor General's Office, and of Belarus professors, a delegation from the Supreme Court of Mexico, and from the Office of the Permanent Observer of Mexico to the Council of Europe, and a delegation of the Georgian Bar Association and the High School of Justice of Georgia. Having consulted the agent of the government and the representatives
Dean Spielmann (JudgeP): of the applicant, I have determined the order of addresses as follows. Mr Matyushkin for
Dean Spielmann (JudgeP): the government will speak first, and then Mr Leach, Ms Levine, Ms Razhikova, and Mr Koroteyev for the applicant. I would explain that in addition to interpreting in the two official
Dean Spielmann (JudgeP): languages of the Court, English and French, interpreting into Russian has been authorised for the benefit of the Russian and Belarus delegations. Furthermore, interpreting into
Dean Spielmann (JudgeP): Albanian has been authorised for the benefit of the Kosovo delegation, and interpreting into Georgian has been authorised for the benefit of the Georgian delegation. That interpreting
Dean Spielmann (JudgeP): is not arranged by the Court, and no transcription of the oral translation will be included in the official record of the proceedings. I call Mr Matyushkin.
GR1 (Government): First of all, the authorities of the Russian Federation would like to draw the European Court's attention to the fact that the present application is manifestly inadmissible under Article 35 of the Convention, as the applicant has not exhausted the domestic remedies before applying to the International Court. The applicant lodged a claim with the National Courts only
GR1 (Government): against private mobile phone companies, requesting that they turn off their special equipment which allegedly allowed third parties to intercept his telephone conversations. The Ministry
GR1 (Government): of Information Technologies and Communications of the Russian Federation was involved in the proceedings on the request of the applicant only as a third party, but not as a respondent.
GR1 (Government): The applicant did not challenge any Russian legal acts that regulate the interception of telephone conversations at the National Courts. The applicant did not lodge any complaints
GR1 (Government): with the National Courts about any decisions or actions or omissions taken by the state authorities and their officials. All of the applicant's statements that he allegedly did
GR1 (Government): not have an opportunity to challenge the legislation of the Russian Federation regarding phone interception are not supported by the materials of the case file. If the applicant believed
GR1 (Government): that the mere existence of the Russian legislation on phone interception itself violated his rights and freedoms, he could have lodged an application with the National Court on the recognition of a certain regulatory legal act to be contrary to the law in full or in part. Such opportunity is prescribed by the legislation of the Russian Federation.
GR1 (Government): The Constitutional Court of the Russian Federation also made it possible to challenge state authority regulations which have not been duly registered and published. In this connection, the example
GR1 (Government): provided by the applicant's representatives allegedly evidencing the absence of opportunity to challenge the Russian legislation is significantly distorted. Thus, in particular, the supervisory
GR1 (Government): appeal submitted by company Pascal was dismissed because the dispute was not under the jurisdiction of the commercial court, as it was not of an economic nature and should therefore have been examined by the general jurisdiction courts, and not because the dispute regulation was of technical character.
GR1 (Government): The applicant's statement that he did not have an opportunity to challenge the order of the State Communication and Information Technologies Committee of the Russian Federation of 1999, since the indicated order was not published, does not correspond to reality.
GR1 (Government): The indicated departmental act, together with enclosures, was published in Svyazinform magazine in 1999, is available in the Consultant News National Database, can be freely accessed through the Internet, and was attached by the applicant to the materials of this case.
GR1 (Government): The applicant also was not deprived of the opportunity to lodge a complaint with the Constitutional Court of the Russian Federation, having pointed out which provisions of the Russian legislation do not comply with the Constitution of the Russian Federation, as, for example, in Klaus and others versus Germany.
GR1 (Government): Furthermore, if the applicant had good reason to believe his phones may be tapped, he could have lodged a complaint challenging any decisions or actions or omissions of the State authorities and their officials.
GR1 (Government): The memorandum of the oral hearings contained a number of examples from judicial practice confirming the effectiveness of this domestic remedy.
GR1 (Government): Summarizing the present arguments, it should be noted that the applicant did not rise any claim or complaint against the relevant public bodies of the respondent state at the national courts.
GR1 (Government): Correspondingly, the application is manifestly inadmissible, and the domestic remedies have not been exhausted and should be dismissed pursuant to Article 35 of the Convention.
GR1 (Government): Also the authorities of the Russian Federation believe that the applicant is not a victim of a violation of rights guaranteed by the Convention.
GR1 (Government): Based on the Court's case law, the applicant must personally be affected by a government's interference in other work.
GR1 (Government): As follows from Article 34 of the Convention, he must be a direct victim of a violation of rights guaranteed by the Convention.
GR1 (Government): Previously in the Commission's case law, it was specified that an individual may, under certain conditions, claim to be the victim of a violation accussion by the mere existence of secret measures or of legislation permitting secret measures without having to challenge that such measures were in fact applied to him.
GR1 (Government): See Klaus and others versus Jomlin.
GR1 (Government): Previously the Court departed from that position, deeming it too broad.
GR1 (Government): In the Court's opinion, as established by its case law, it would be mistaken to recognize all persons who feared that the security services may have conducted surveillance of them as victims of rights violations.
GR1 (Government): It is necessary for the applicants to demonstrate that there was a reasonable likelihood that the surveillance measures had been applied to them.
GR1 (Government): See Kennedy versus United Kingdom and Almas and 112 others versus Netherlands.
GR1 (Government): According to the Court's new standpoint, for an applicant to be considered a victim of a violation of his rights, he must be charged by the monitoring measure and the proofs are necessary that his personal data have been processed or used in a manner constituting an interference with respect for private life.
GR1 (Government): See Köpcke versus Germany.
GR1 (Government): For example, the application of Weber and Saravia versus Germany was declared inadmissible because the Court noted that the applicants, even though they were members of a group of persons who were likely to be affected by measures of interception and strategic monitoring, they were unable to demonstrate that the impugnant measures had actually been applied to them.
GR1 (Government): Thus proceeding from the standards of the Court and the circumstance of the present case, it is evident that the applicant is not a victim of violation of rights guaranteed by the Convention.
GR1 (Government): The applicants' telephone conversations were not intercepted.
GR1 (Government): The measures provided for by the federal law on operational search activities and criminal procedure legislation were never applied to the applicant.
GR1 (Government): Moreover, there was clearly no reasonable likelihood that the applicant's telephone conversation would be intercepted because he was not a person suspected or accused of commission of any crimes of medium gravity, grave or especially grave crimes, and no preliminary investigation was being carried out in his respect.
GR1 (Government): The applicant publicly referred in the national proceedings to the fact that he filed a claim not related to any specific violations committed by the defendant's private mobile phone companies, but because the defendants have special equipment which, according to the applicant's unfounded allegations, probably allowed them to intercept telephone conversations without court judgment.
GR1 (Government): In this connection, the applicant has not proven the presence of any risk that he would be subjected to secret surveillance measures.
GR1 (Government): Therefore the applicant's application is manifestly founded by virtue of Article 35, Paragraph 3A of the Convention and should be dismissed under Article 35, Paragraph 4 of the Convention.
GR1 (Government): Before answering the Court's question with respect to conditions under which an individual may claim to be a victim of a violation of rights guaranteed by the Convention, accussion by the mere existence of legislation permitting secret surveillance measures, we would like, in short, to distinguish two such conditions.
GR1 (Government): Firstly, the applicant must have exhausted the domestic remedies before applying to the Court and address his claims to the state authorities and not private respondents' mobile phone companies.
GR1 (Government): Secondly, the applicant must prove the existence of a reasonable likelihood that his phone conversations were truly being intercepted, that his personal data could have been processed and used in a manner constituting an interference with respect for private life.
GR1 (Government): The applicant has not observed none of these conditions.
GR1 (Government): With respect to the Court's question on interception authorization procedures, which must be established to provide adequate and effective guarantees against abuse, I consider it necessary to draw the Court's attention to the following.
GR1 (Government): According to the general law and as follows from the Court's case law, the legislation of the Member States of the Council of Europe must infringe minimum guarantees in order to avoid abuse of power.
GR1 (Government): Sometimes the Court also allows for these guarantees to be foreseen not in the country's legislation but in its national case law.
GR1 (Government): For example, in the case of Köpke v. Germany, the Court declared inadmissible the application
GR1 (Government): of an employee who was subjected to cover video surveillance of her workplace by her employer without any appropriate basis and conditions laid down in the German statute law.
GR1 (Government): Such provisions appeared in German legislation only seven years after the fact.
GR1 (Government): In rendering its decision as to inadmissibility, the Court noted that even though Germany did not have the appropriate legislation when the secret surveillance was being carried out, the Federal Labor Court in its case law developed important limits on the admissibility of such video surveillance, which safeguarded employees' privacy rights against arbitrary interference.
GR1 (Government): Additionally, it should be especially emphasized that the Russian legislation provides sufficient and effective guarantees, supervision, and protection against abuse in the sphere of telephone communications interception, which is evidenced inter alia by the judicial judgments of the national courts, copies of which were attached to the memorandum of Russian authorities to these hearings.
GR1 (Government): Operational search measures in the form of control and record of telephone conversations are allowed in the Russian Federation only pursuant to judicial authorization and only with the presence of information pertaining to the signs that a crime is being organized, is taking place, or has taken place, to individuals organizing, committing, or having committed a crime, and to events or actions or missions which create a threat for the state, military, economic, informational, or environmental safety of the Russian Federation.
GR1 (Government): Telephone calls may be intercepted without preliminary judicial authorization only in the following three urgent cases.
GR1 (Government): First, if there is a threat that a grave or especially grave crime will be committed.
GR1 (Government): Second, if there is information about an event or action or mission that creates a threat to the state, military, economic, or environmental safety of the Russian Federation.
GR1 (Government): Third, in case of existence of threat to a person's life, health, or property, following such person's request or with such person's consent to monitoring the telephone conversation from his or her telephone line.
GR1 (Government): In this case, the authority conducting the operational search activities notifies the court within the time limit prescribed by the law.
GR1 (Government): Therefore, the law obliged the authorities conducting the operational search activities firstly, to notify the judge about the operational search measure, and secondly, to obtain judicial authorization to apply such measure.
GR1 (Government): If at the time of applying to the court of operational search measure has been terminated, in his judgment, the judge evaluates the lawfulness of the conducted operational search measure.
GR1 (Government): If at the time of judicial recourse, the operational search measure has not been discontinued, in a single judgment, the judge evaluates the lawfulness of the operational search measure and either authorize its subsequent use or do not authorize it.
GR1 (Government): The Russian Federation interception of telephone and other communications may be used only in relation to a fairly narrow group of individuals, persons suspected or accused of committing a medium-gravity crime, serious crime, or particularly serious crime, as well as persons who may have information pertaining to these crimes.
GR1 (Government): In case of Groteur v. Netherlands, the court demonstrated an even broader position.
GR1 (Government): The court found justified the interception of telephone conversations of a person who was neither a suspect nor an accused in a criminal case, and neither did the applicant have information pertaining to a crime.
GR1 (Government): The Russian legislator has established the time limit for duration of control and record of telephone and other communications, which is equal to six months.
GR1 (Government): If the term must be extended, the judge shall render a judicial judgment on the basis of newly provided evidence.
GR1 (Government): In comparing this maximum time limit for intercepting telephone communications in Russia with the limits established by the court case law, it should be noted that the Russian Federation is not exceed the established standard in this particular aspect.
GR1 (Government): An especially illustrative case in this regard in the case of Van Pelt v. Netherlands, where
GR1 (Government): the commission deemed justified that in the course of a preliminary investigation the telephones of the applicant suspected of drug trafficking were tapped for a period of almost two years.
GR1 (Government): The investigating judge prolonged this authorization 21 times.
GR1 (Government): It is important to note that the legislation of the Russian Federation also includes safeguards to be used when transferring information to other authorities and storing information obtained while intercepting telephone and other communications.
GR1 (Government): Recording obtained in the results of intercepting telephone and other communications are stored in sealed form in a manner that excludes the possibility of them being heard or distributed by third parties.
GR1 (Government): Information pertaining to the results of operational search measures is deemed a state secret.
GR1 (Government): The court judgment allowing the conduct of operational search measure as well as materials which serve as the grounds for rendering this judgment are stored only with the agency conducting the operational search activity.
GR1 (Government): The right to declassify information obtained during the operational search activities to be provided to the inquirer, investigator, or the court is vested in the hands of the agencies conducting the operational search activities.
GR1 (Government): In doing so, the agency conducting the operational search activities files a petition to the court on declassifying their court's judgment to provide a copy of it to the investigator, inquirer, the prosecutor, or the court.
GR1 (Government): Upon examining their providing documents, evidence, and circumstances which render their further protection of the state secret unnecessary, the judge renders a judgment on declassifying this corresponding court judgment about conducting the operational search measures.
GR1 (Government): All this gives grounds to conclude that the Russian legislation provides for adequate and effective guarantees against abuse of state officials by their powers.
GR1 (Government): With regard to the court's question of whether the scope of review the authorizing authority may be limited in respect of the reasons for the surveillance measures and the supporting evidence, the authorities see it especially important to submit the following.
GR1 (Government): The basis for the court judgment authorizing operational search measure in the form of control and the record of communications is a subservient decision submitted by one of the heads of the agency conducting operational search activities.
GR1 (Government): At that, the judge is not obliged to give authorization for these measures to be conducted only because he received a corresponding petition if the judge believes that the petition is unsubstantiated or unlawful.
GR1 (Government): In this instance, the obligation to justify the necessity to control and record communications rests with the state officials who petition the court for authorization.
GR1 (Government): As examples, it is possible to refer to the same information notes of the Babayurtasky District Court of the Republic of Dagestan and the Leninsky District Court of the Tula region, seated by the applicant.
GR1 (Government): It is noted therein that in judicial practice of these courts, all petitions lodged by the heads of competent bodies for authorization of operational search measures received in the considered period of time were justified.
GR1 (Government): The mention in this information notes that the judges do not request additional materials during consideration of petitions of the heads of competent bodies for interception of telephone communications do not provide evidence of violation by this court of federal law on operational search activities.
GR1 (Government): Seen by virtue of its provisions, the judge can request additional information in case of insufficient justification of the petition, but not obliged.
GR1 (Government): In whole, to justify his position, the agency head who is seeking authorization to control and record communications provides all materials and evidence related to the basis for undertaking these measures.
GR1 (Government): The only exclusions are information about individuals who are infiltrated in organized criminal gangs, undisclosed agents, individuals who are aiding agencies in a confidential manner, as well as information about the organization and tactics of conducting operational search activities.
GR1 (Government): It should be noted that the present exclusion responds to the state's obligation to ensure the confidentiality of the individuals who are aiding the agencies conducting operational search activities, as well as protection of these individuals, their family members, and close persons from unlawful attempts to their life and any danger to their health and property.
GR1 (Government): From our point of view, these legislative provisions fully correspond to the European Court case law.
GR1 (Government): It is essential that in case Rajkumar v. United Kingdom, the European Court drew attention
GR1 (Government): to the fact that the entitlement to disclosure of relevant evidence is not, however, an absolute right.
GR1 (Government): In any criminal proceedings, there may be competing interests, such as a national security or the need to protect witnesses, undisclosed agents, informants at risk of reprisal, which must be weighed against the rights of the accused.