TrustHLT/LaCour huggingface dataset:
AP2 (Applicant): we submit that the Operational Search Activities Act does not provide for adequate or effective safeguards in relation to the authorization of requests for surveillance.
AP2 (Applicant): The act does not specify what a request for surveillance must contain.
AP2 (Applicant): It is silent on whether the request must identify the individuals who may be subject to surveillance, the nature of the suspected offenses giving rise to the request, or the duration of the proposed measures.
AP2 (Applicant): The act merely requires the judge to consider, quote, a reasoned decision, unquote, from one of the heads of the bodies conducting surveillance.
AP2 (Applicant): There is no mention of what kinds of reasons should be included, or whether there needs to be a basis of a reasonable suspicion.
AP2 (Applicant): The act does not specify the nature of the judge's examination of requests.
AP2 (Applicant): It does not require the judge to consider the breadth of the offenses giving rise to the requested measures.
AP2 (Applicant): Unlike in previous cases, the act allows telephone surveillance in respect of medium gravity crimes, as well as grave and especially grave crimes.
AP2 (Applicant): The act also permits the telephone tapping of people who simply possess some knowledge about such crimes.
AP2 (Applicant): Under the act, surveillance measures may be granted for up to six months, unless otherwise indicated by the judge.
AP2 (Applicant): However, there is no mention of when the judge may authorize surveillance for longer than this, or if indeed there is any maximum duration.
AP2 (Applicant): The act does not require the judge to establish if there are serious reasons for the requested measures, based on a reasonable suspicion.
AP2 (Applicant): The judge may seek limited information on the grounds for the request.
AP2 (Applicant): In practice, this very rarely happens.
AP2 (Applicant): For example, I refer here to annexes 14 to 16 of the applicant's submission of June 2014, which confirmed that no such requests were made in recent years by the judges of the courts referred to therein.
AP2 (Applicant): The act does not require the judge to consider whether the requested measures are necessary for the achievement of the aims listed in section 7 to 9 of the act, or proportionate to what is sought to be achieved.
AP2 (Applicant): There is nothing under Russian law regulating judicial authorization of surveillance in particularly sensitive situations, for example, where the confidentiality of journalistic sources is at stake.
AP2 (Applicant): I also wish to draw the court's attention to annexes 9 to 13 of the applicant's June 2014 submissions, which show that in 2013, for example, the Russian courts were requested to authorize surveillance measures around 610,000 times, and did so in 97% of cases.
AP2 (Applicant): We submit that this is indicative of the inadequacy of the judicial authorization process, and also underlines the overuse of the system for covert surveillance on account of its extremely weak safeguards.
AP2 (Applicant): The act does not require all secret surveillance measures to be authorized by a judge.
AP2 (Applicant): Where there is a risk to an individual's life, health, or property, surveillance may be authorized on the basis of a decision of the head of the relevant surveillance body and where the individual concerned consents.
AP2 (Applicant): The act merely requires that in these situations, a judge be notified of, as opposed to being asked to authorize, the measures taken within 48 hours of their implementation.
AP2 (Applicant): The decision of the surveillance body does not need to contain reasons.
AP2 (Applicant): There is no indication of the safeguards in these situations to ensure informed consent.
AP2 (Applicant): Further, there is no reference to the rights of the other people whose communications may well be caught by these measures.
AP2 (Applicant): Finally, the act does not indicate what information should be included in an authorization to ensure that it is sufficiently specific.
AP2 (Applicant): For example, it is silent on whether the authorization should identify the subject of the surveillance measures.
AP2 (Applicant): The government even acknowledges in its submissions of June 2014 that judges may authorize surveillance in relation to unidentified persons.
AP2 (Applicant): Mr. President, I now hand over to Ms. Rajagopal.
AP3 (Applicant): Mr. President, I will address the court in question three
AP3 (Applicant): as to the characteristics of a body supervising interception.
AP3 (Applicant): This court has consistently reiterated that whatever system of surveillance the state establishes, it must be subject to adequate and effective supervision in order to prevent abuse.
AP3 (Applicant): I will refer to the court's principles concerning supervision before applying those principles in this case.
AP3 (Applicant): In Iordace, the court said that there must be judicial control or control by an independent body over the authority issuing warrants for surveillance.
AP3 (Applicant): The supervising body's members must have certain qualifications ensuring their independence and adherence to the rule of law.
AP3 (Applicant): In Kennedy and in Elle versus Norway, this court expressed its approval that members of respective supervisory bodies hold or have held high judicial office or were qualified lawyers of several years standing.
AP3 (Applicant): The supervisory body's activities must be transparent.
AP3 (Applicant): In Ekimgiv, the court was highly critical of the fact that the supervising minister was not required to regularly report to an independent body or to the general public on the operation of the surveillance system and referred to examples to the contrary in Klass, Elle versus Norway, and Christie versus UK.
AP3 (Applicant): Supervisory body must have adequate powers.
AP3 (Applicant): This court has expressed its approval of the regime established in the UK law, as the investigatory powers tribunal has the power to quash interception orders, to order the destruction of material obtained, and to order compensation, and the right of the interception of communications commissioner and the tribunal to have access to all classified materials and of the corresponding obligation on interception authorities to disclose to them any such materials.
AP3 (Applicant): In Weber and Serevia, the court approved of the fact that G10 commission in Germany had supervising power in relation to all stages of interception, not only to authorization.
AP3 (Applicant): Under the 1995 Act, supervisory control is entrusted to prosecutors.
AP3 (Applicant): Prosecutors are neither independent nor impartial since they present a state in criminal proceedings and may rely on information obtained by means of secret surveillance.
AP3 (Applicant): Moreover, by virtue of the Prosecutor's Office Act, prosecutors have a statutory duty to coordinate the activities of law enforcement bodies, including the Ministry of the Interior, the FSB, and drug control bodies, the very bodies which it supervises under the 1995 Act.
AP3 (Applicant): Furthermore, pursuant to the Criminal Procedure Code, the prosecutor may participate in the telephone tap and authorization hearing.
AP3 (Applicant): Under the 1995 Act, the prosecutor does not have the power to review the lawfulness of judicial authorization and cannot challenge or quash it.
AP3 (Applicant): The prosecutor has no express legal power to ensure that information obtained is securely stored and processed.
AP3 (Applicant): The prosecutor cannot order the destruction of any material obtained.
AP3 (Applicant): Moreover, he reports biannually only to a superior prosecutor.
AP3 (Applicant): His reports are classified and thus inaccessible to the general public.
AP3 (Applicant): Furthermore, the prosecutor's supervisory functions are significantly limited by the FSB Act, according to which information about undercover agents, organization, tactics, methods, and means of work of FSB bodies are excluded from the scope of supervisory control.
AP3 (Applicant): The FSB Act also provides that materials related to FSB counterintelligence and counterterrorism operations, which restrict individuals' right to secrecy of correspondence, are provided to a prosecutor only upon receipt by the letter of materials, information, or petitions of individuals testifying to the fact that the FSB has acted in breach of Russian law.
AP3 (Applicant): Finally, under the 1995 Act, overall control of surveillance activities is entrusted to the president, parliament, and the government.
AP3 (Applicant): However, there are no further provisions in law which set out what functions such control entails.
AP3 (Applicant): Mr. President, I now turn to question four
AP3 (Applicant): on the issue of notifications.
AP3 (Applicant): In the case of Klaas, the court found that when surveillance is first ordered and while it is being carried out, it should be effected without the individual's knowledge, as otherwise this would jeopardize its effectiveness.
AP3 (Applicant): However, the court's position is quite different as regards subsequent notification.
AP3 (Applicant): As soon as notification can be made without jeopardizing the purpose of the surveillance after its termination, information should be provided to the persons concerned.
AP3 (Applicant): The court has also reiterated that the question of subsequent notification is inextricably linked to the effectiveness of remedies before domestic courts and to the existence of effective safeguards against abuse, since there is in principle little scope for recourse to courts unless an individual concerned is advised of the measures taken without his knowledge.
AP3 (Applicant): In Ekimchiev, the court found the Bulgarian legislation wanton, as it did not provide for any notification at any point and under any circumstances.
AP3 (Applicant): On that basis, the court not only found a violation of Article 8, but also Article 13.
AP3 (Applicant): Therefore, it is clear that this court views subsequent notification as an important safeguard against abuse.
AP3 (Applicant): In the case of Segerstedt-Wieberg, this court found that the denial of full access to a secret police register may be necessary when the state legitimately fears that the provision of such information may jeopardize the efficacy of a secret surveillance system designed to protect national security and to combat terrorism.
AP3 (Applicant): In Mesh and others, the commission accepted the government's claim that absence of subsequent notification of surveillance measures was limited only to offenses against the external security of the state of Luxembourg, and concluded that the surveillance system was appropriately designed to protect democracy from the threats to which it might be exposed.
AP3 (Applicant): Thus, we submit that a refusal to notify may only be justified in very limited circumstances, for example, when a country's national security or comparable interests are at stake.
AP3 (Applicant): I reiterate that under Russian law, a person who is under surveillance is not notified, even after it is over.
AP3 (Applicant): If a criminal case is initiated, it could be that access is obtained to the criminal case file.
AP3 (Applicant): However, even then, materials submitted by the government demonstrate that it is usually the case that neither the application for a warrant nor a warrant itself are included in the criminal case file.
AP3 (Applicant): Thus, even a defendant in criminal proceedings will not be informed about the reasons for the surveillance in the first place.
AP3 (Applicant): The domestic law provides that a person may only seek access from an intercepting body to the data collected when they possess facts as to the surveillance measures having been applied to them.
AP3 (Applicant): What is meant by facts is not set out in law, and this sets an impossibly high burden.
AP3 (Applicant): Only persons whose guilt has not been proven in a procedure established by law may seek request.
AP3 (Applicant): Even then, he may still be denied access to information or may obtain only partial access, as there is no obligation on the intercepting authorities to disclose information to him.
AP3 (Applicant): This is because the law provides that surveillance information may only be disclosed with due observance of the principle of conspiracy and excluding the disclosure of state secrets.
AP3 (Applicant): Thus, it is not a question of considering whether disclosure could jeopardize the initial purpose of surveillance.
AP3 (Applicant): Instead, what matters is that the results of surveillance are considered to be a state secret in accordance with Article 12 of the 1995 Act and will thus not be disclosed.
AP3 (Applicant): Mr. President, I now hand over to Mr. Kertil.
AP1 (Applicant): Mr. President, I will deal with the Court's fifth question relating to the right
AP1 (Applicant): to an effective remedy under Article 13 of the Convention. We will argue that, firstly,
AP1 (Applicant): an effective remedy in cases of telephone tapping usually requires some degree of adversarial proceedings, that, secondly, persons subject to surveillance must be notified of it once the measures applied are no longer warranted, and, thirdly, that the scope of review must include assessment of proportionality of the measures and the reasons must be given for the decisions. I start with the
AP1 (Applicant): procedural guarantees. What is required under Article 13 is a remedy that is as effective
AP1 (Applicant): as can be having regard to the restricted scope for address, which is inherent in the context of secret state surveillance. In Acum G, the Court ruled that even
AP1 (Applicant): when surveillance is ongoing, a limited remedy is nevertheless still possible, for example, where the proceedings are secret and where no reasons are given.
AP1 (Applicant): Alternatively, an ex parte review conducted by a body composed of judicial officers is possible. This system was found compatible with the Convention by the Belgian
AP1 (Applicant): Constitutional Court in the case of Order of Flemish Lawyers and League for Human Rights in September 2011. Even where the issue of national security is at stake,
AP1 (Applicant): Article 13 taken together with Article 8 requires some form of adversarial proceedings, although the parties may be required to be represented by lawyers who have undergone security clearance, as confirmed in Al-Nashif against Bulgaria and Sijai and others against Bulgaria. I turn now to the issues of burden of proof.
AP1 (Applicant): In this regard, it is the requirement of the Convention that the person who is subject to surveillance is notified of it once the measures are over. Failure to provide
AP1 (Applicant): such notification led to a violation of Article 13 in Acum G.
AP1 (Applicant): Accordingly, the existence of the system where the service provider or an independent monitoring body is aware of the ongoing surveillance is crucial. This would allow
AP1 (Applicant): to double-check the submissions of the surveillance agency should the latter deny any involvement in tapping. With regard to the legality of telephone tapping,
AP1 (Applicant): we submit that it falls on the body that conducts surveillance to prove that the measures were in conformity with the applicable law, including the Convention.
AP1 (Applicant): This law was entrenched in the Court's cases under Article 2, 3, and 5, as in Timutash against Turkey. It was also applied in Article 8 cases, for example, in Fadeva against
AP1 (Applicant): Russia.
AP1 (Applicant): We submit that it is applicable to the present case for the same reason as in those cases, that is, the executive alone has knowledge of all the circumstances of the case which justified surveillance and that the decision to undertake it was taken in the individual's absence. I now move to the scope of review and the
AP1 (Applicant): obligation to give reasons. In class, the Court was satisfied with the combined
AP1 (Applicant): availability of civil, administrative, and constitutional remedies, and in Kennedy, with the combination of powers of the Investigatory Powers Tribunal and the review exercised by the Interception of Communications Commission. We submit that the National
AP1 (Applicant): Court or other supervising authority must be able to take full cognizance of the merits of the case, including the review of proportionality. We rely on the Grand Chamber's
AP1 (Applicant): findings under Article 13 in Hutton and others against the United Kingdom.
AP1 (Applicant): And where the surveillance measures are no longer under way, no justification may be invoked for not giving reason judgment at the end of the proceedings.
AP1 (Applicant): The obligation to give reasons in post facto judicial review was upheld by the already mentioned judgment of the Belgian Constitutional Court. As the European Court held
AP1 (Applicant): in Alnuschief, even where domestic court or supervising authority is obliged to accord a wide margin of appreciation to the executive in matters of national security, that can by no means justify doing away with the remedies altogether whenever the executive has chosen to invoke the term national security. In C.G. and others,
AP1 (Applicant): the obligation to scrutinize whether a reference to national security is genuine and whether there is sufficient factual basis for it were important factors in assessing the effectiveness of the domestic remedy. We argue further that the remedies available
AP1 (Applicant): under Russian law fall short of the requirements of Article 13.
AP1 (Applicant): Domestic court proceedings do not offer an effective remedy in practice. We submit
AP1 (Applicant): as follows. Firstly, the government did produce a number of domestic judgments
AP1 (Applicant): in cases decided in favor of individual applicants. However, they failed to specify
AP1 (Applicant): the selection criteria. It thus cannot be said that the judgments are anyhow representative
AP1 (Applicant): of the totality of Russian cases concerning surveillance. In any event, none of the
AP1 (Applicant): noncriminal judgments concern a finding of illegality of telephone tapping or any similar measure. Instead, they all relate to assessments of the lawfulness of searches
AP1 (Applicant): or seizures, which by definition are known to persons subject to them. Secondly,
AP1 (Applicant): the government admitted in paragraph 140 of their observations of June 2014 that the Russian law does not provide for notification of persons subject to surveillance even after it is discontinued, unless criminal proceedings are opened against them.
AP1 (Applicant): Thirdly, applicable Russian regulations do not provide for notification of the decision to undertake surveillance measures to the provider of telephone or Internet services.
AP1 (Applicant): So if the authorities engaged in surveillance are denying that the measures were or are being applied, it is impossible to independently verify their submissions.
AP1 (Applicant): Fourth, in no domestic case referred to by the government did the Russian courts assess the proportionality of the operative search measures employed by the executive.
AP1 (Applicant): Such a remedy cannot be deemed effective under the Court's case law, Ekimchiev, Arnashiev, and Khatun in particular. In conclusion, we submit that the Court's
AP1 (Applicant): finding in Ligutin against Russia that the failure to conduct judicial review in the cases under the Operative Search Activities Act is a structural failure of the Russian law applicable to telephone tapping. Accordingly, we invite the Court to find
AP1 (Applicant): violation of Article 8 of the Convention taken alone and together with Article 13.
AP1 (Applicant): Mr. President, that concludes the submission on behalf of the applicant.
Dean Spielmann (JudgeP): I turn to the judges.
Dean Spielmann (JudgeP): Yes, Judge Sicilianos.
Linos-Alexandre Sicilianos (Judge): It's a question to both parties.
Linos-Alexandre Sicilianos (Judge): According to submissions by the parties, Order No. 70 on technical requirements
Linos-Alexandre Sicilianos (Judge): for the system of technical facilities enabling the conduct of operational search activities using telecommunications network, issued by the Ministry of Communications on 20 April 1999, stipulates that equipment installed by communications service providers must meet certain technical requirements which are described in the addendums to the order.
Linos-Alexandre Sicilianos (Judge): Those addendums have never been officially published.
Linos-Alexandre Sicilianos (Judge): I would like to know more about the functioning of this order in practice and its impact on the various safeguards and guarantees provided by the applicable legislation, especially the authorization procedure.
Ineta Ziemele (Judge): In view of the applicant's submissions, and since the second part of the submissions addressed the question of notification in greater detail, I would like to ask the government to explain exactly this aspect in your sort of rebuttals.
Ineta Ziemele (Judge): Because would the government really confirm that there is no obligation to notify of surveillance that had taken place and that had not led to any criminal proceedings?
Ineta Ziemele (Judge): So would the government confirm that that is indeed the case?
Ineta Ziemele (Judge): And the applicant just referred to your written submissions.
Ineta Ziemele (Judge): And if that is so, could the government explain the reasons for such approach in the Russian legislation?
Ineta Ziemele (Judge): And is the government of the view that you basically don't have to provide this opportunity to your citizens to have the information that the Surveillance Act had taken place?
Ineta Ziemele (Judge): In that context, how would you explain that in the applicant's case, the domestic courts, in fact, did not accept his submissions saying that he has failed to discharge the burden of proof?
Ineta Ziemele (Judge): He has failed to demonstrate the facts that might lead to consideration that he has been submitted to surveillance.
Ineta Ziemele (Judge): How would he be able to meet that burden of proof in domestic proceedings if there is no way for him to find out what is happening, that there is no this notification obligation?
Ineta Ziemele (Judge): So if you would really address specifically this part outside the criminal proceedings.
Paul Lemmens (Judge): It's a bit following up on the previous question also about the notification of the interception to the subject.
Paul Lemmens (Judge): Both parties have referred to the fact that according to Russian law, the major part, and now I'm quoting from the government's memorial, the major part of operational search activities requested by the relevant authorities from the court is secret in nature.
Paul Lemmens (Judge): And that may be partly an explanation or an answer to Judge Seymour's question, but I would like to know more about the notion of a state secret under Russian law.
Paul Lemmens (Judge): What is a state secret?
Paul Lemmens (Judge): Who decides that something is a state secret?
Paul Lemmens (Judge): And is it possible to challenge that qualification?
Dean Spielmann (JudgeP): Thank you, so.
Dean Spielmann (JudgeP): We will have a short break, 20 minutes.
Dean Spielmann (JudgeP): And sorry, Judge Turković, I'm sorry.
Ksenija Turković (Judge): A question for the applicants, we have heard today that the government is raising the issue of non-exhaustion of domestic remedies. And you did not refer to that. We didn't hear about that before.
Ksenija Turković (Judge): It is for the first time that the government is raising that issue. So I think it would
Ksenija Turković (Judge): be valuable for all of us that you address that. Thank you.
Dean Spielmann (JudgeP): So we will have a short break now for 20 minutes and we will resume at 10 to 11.
Dean Spielmann (JudgeP): Please be seated, Mr. Matyushkin.
GR1 (Government): Answering the first question, the question of Judge Sicilianos, I should just come back to what I told during my submission.
GR1 (Government): The order of the State Communication Information Committee of the Russian Federation of 1999, number 70, was published with all technical amendments completely.