TrustHLT/LaCour huggingface dataset:
GR1 (Government): Therefore, the Russian legislation does not contradict the court case law pertaining to agent provocateur, see Mueller v. Austria, Speckman v. United Kingdom.
GR1 (Government): In connection with the European Court's question regarding information that must be indicated in the interception authorization to make it sufficiently specific, we submit the following.
GR1 (Government): The judicial authorization sanctioning the control and recording of communications contains the following information.
GR1 (Government): On the agency conducting the operational search activities and the official who petitioned the court, on the grounds for recording and controlling communications and on complying with the requirements for undertaking this type of operational search activities, the justification for the need for recording and controlling of telephone communications, on the individual whose communications will be controlled and recorded, on the sign of a crime in the actions of the individual and his involvement in committing this act, on the signs that the crime is being prepared, committed, or has been committed, the telephone number or the identifier code of the device that will be intercepted, specific term of the authorization not exceed six months.
GR1 (Government): Other necessary information.
GR1 (Government): It should be added that the examples of judicial decisions mentioned by the applicant in a negative way, which allows conducting operational search measures in relation to indefinite in number of individuals and without specifying the telephone number to be tapped, do not absolutely provide for evidence of violation of law.
GR1 (Government): Thus, in exceptional cases, a petition for carrying out operational search measure limiting the constitutional rights of citizens may not exclude data on a particular person in whose respect the authorization for operational search measures is required or such authorization may be asked in respect of indefinite number of individuals.
GR1 (Government): This approach has logical explanation and corresponds to the national legislation.
GR1 (Government): In particular, such petitions are filed for authorization of taking information from technical communication channels with the purpose of discover persons involved in commission of crimes in certain time and certain place.
GR1 (Government): If there is information that unidentified persons involved in committing of a crime used mobile connection at the time it was committed.
GR1 (Government): In any case, conduct of such measures take place only on the basis of the court authorization.
GR1 (Government): The analysis of the obtained data usually identifies persons involved in the crime committed in the certain place and time.
GR1 (Government): After receipt of necessary information, the bodies conducting operational search activities apply for the authorization for operational search measures in relation to certain individuals and certain telephone numbers.
GR1 (Government): It is evident that such practice is connected with specific character of operational search activities and is aimed, first of all, at identification and search of criminals.
GR1 (Government): It is clearly evident that these provisions are fully in line with the court's case law, which has established that the warrant itself must clearly specify either by name or by description one person as the interception subject or a single set of premises or places at the premises, places in respect of which the warrant is ordered, say, Kennedy v. United
GR1 (Government): Kingdom.
GR1 (Government): In conclusion, it is worth noting that the judgment of the Russian judge concerning the control and recording of communication is motivated and contains guarantees against abuse of state officials by their powers.
GR1 (Government): With regard to the court's question of characteristics which must embody supervision interceptions process, I would like to submit the follows.
GR1 (Government): The independent body that supervises the operational search measures that includes controlling and recording communications is the Prosecutor's Office of the Russian Federation.
GR1 (Government): The Public Prosecutor's Office executes its official duties independently from the federal authorities, authorities in the Russian constituent territories, local authorities, and public organizations while strictly complying with the current Russian legislation.
GR1 (Government): The Prosecutor General of the Russian Federation and his deputies are appointed and removed from their posts by the legislative body, the Federal Council of the Federal Assembly of the Russian Federation.
GR1 (Government): It is important to note that the prosecutors do not have the right to petition the courts to authorize conduct of operational search measures including control and recording of communications.
GR1 (Government): This right is vested instead in the bodies that conduct operational search activities.
GR1 (Government): It should also be added that the prosecutors request the heads of bodies carrying out operational search activities provide them with official documents which include materials about operational search measures using surveillance equipment.
GR1 (Government): The prosecutors ensure that the information contained in these documents and materials is protected.
GR1 (Government): Furthermore, the prosecutor's supervision is possible not only in connection with materials, information, and complaints of individuals about violations of the law, but also on the own initiative of the authorized prosecutors.
GR1 (Government): Without this prosecutor's supervision over compliance with the laws in the sphere of operational search activities would be episodic and one-sided.
GR1 (Government): All of these factors ensure that the prosecutor's office is independent in its supervision of operational search activities.
GR1 (Government): Answering the court's question, whether the intercepting authorities are obliged to give identification of the interception or to give access to documents relating to the interception to the person concerned, it is important to highlight the following.
GR1 (Government): The Russian legislation does not provide for preliminary notifying the individual who is under secret surveillance.
GR1 (Government): Operational search activities cannot be objectively carried out without a significant degree of secrecy.
GR1 (Government): This primarily concerns information about the persons partaking in it or contributing to it.
GR1 (Government): The person concerned is notified of operational search measures, investigative actions conducted in his or her relation within the framework of the criminal case under investigation during the preliminary investigation, after the end of the preliminary investigation, and also during the examination of the criminal case on the merit in court proceeding.
GR1 (Government): Upon completion of a preliminary investigation, the accused has the right to examine all of the information of the criminal case, write out extracts, make copies of the case file, lodge complaints about actions or omissions and decisions of investigator, prosecutor, or courts, and to participate when they are heard by the courts.
GR1 (Government): The person whose guilt was not proved in committing of the crime, namely in whose respect the institution of a criminal case was denied, the criminal case was discontinued for lack of criminal event or corpus delicti, is entitled to claim from the authority carrying out operational search activities to provide him with information about the data collected.
GR1 (Government): If the provision of the claimed data is refused or if the said person believes that the data has not been supplied to him in full, he shall have the right to appeal against it in court.
GR1 (Government): After the case is being examined in court, the duty falls on the agency conducting operative search activities to prove their justification for refusing to provide this person with the requested information, including the reason for not providing it in full.
GR1 (Government): In the event that the agency's decision to reject the individual's request is deemed unfounded, the judge forced the agency to provide the individual with the requested information.
GR1 (Government): Relying on the aforementioned information can be briefly summarized that the Russian legislation governed the identification of an individual whose conversations were being intercepted, as well as the provisions related to assessing any obtained information fully correspond to the standards set forth by the European Court.
GR1 (Government): An obvious example is the case of Mersh and others versus Luxembourg, where the Commission emphasized that the respondent states could have a total absence of provision for notifying this affected by surveillance measures.
GR1 (Government): However, the Commission observed that ex post facto review and appealing must be available.
GR1 (Government): As regards the course question regarding the possibility for the person who suspects that his communication are being or have been intercepted to have recourse to remedies, we would like to note that the domestic remedies prescribed by the Russian legislation are accessible and effective in practice.
GR1 (Government): In particular, any person believing himself or herself to be subjected to operational searcher measures may apply to the Court of the Russian Federation.
GR1 (Government): In doing so, the individual does not have to prove or justify that his rights have been violated, because the federal law presumes that an individual's rights have been limited due to the specific character of operational searcher measures.
GR1 (Government): Thus, the burden of proving the legality and validity of the operational searcher activities in relation to a particular person has been imposed by the legislator on the agency conducting the operational searcher activity.
GR1 (Government): The detailed information in relation to domestic remedies was stated in the memorandum of the Russian Federation authorities to these hearings.
GR1 (Government): The effectiveness of the indicated domestic remedies was demonstrated earlier through examples provided in the copies of judicial judgment attached to the memorandum to oral hearing.
Dean Spielmann (JudgeP): Thank you Mr. Matyushkin. Can I give the floor to Mr. Leach?
AP4 (Applicant): Mr. President, I shall address the court as regards question one.
AP4 (Applicant): My colleague, Mr. Levine, will respond to question two.
AP4 (Applicant): Mr. Rizhikova will respond to questions three and four,
AP4 (Applicant): and Mr. Korotayev to question five.
AP4 (Applicant): In response to question one, we recall that the court accepts two types of challenge to secret surveillance.
AP4 (Applicant): Firstly, general complaints about legislation and practice permitting secret surveillance.
AP4 (Applicant): And secondly, complaints in which applicants allege actual interception of their communications.
AP4 (Applicant): And this case is the first type.
AP4 (Applicant): Mr. Zakharov is the victim of a convention violation
AP4 (Applicant): caused by the mere existence of legislation permitting secret measures.
AP4 (Applicant): This type of general complaint has been recognized by this court since the 1970s.
AP4 (Applicant): The principles were established in the class judgment and have subsequently been reiterated in a series of cases primarily brought by human rights activists, journalists, and lawyers, such as Weber and Saravia, Akimgev, Liberty, Yodachi, and Kennedy.
AP4 (Applicant): In such cases, the applicants do not have to allege that surveillance measures were, in fact, applied to them.
AP4 (Applicant): As the court explained in the Liberty judgment, the rationale is that legislation permitting secret monitoring of communications amounts to a threat of surveillance for all those to whom the legislation may be applied.
AP4 (Applicant): A number of these cases concern laws which created a system of surveillance under which everyone in the country could potentially have their communications monitored without their ever knowing it, unless there's been some indiscretion or subsequent notification.
AP4 (Applicant): And therefore, it directly affected all the users of the telecommunications services in the country.
AP4 (Applicant): According to the court in class, a mere existence type challenge is assessed in the light of three factors.
AP4 (Applicant): Firstly, the convention rights alleged to have been infringed.
AP4 (Applicant): Secondly, the secret character of the measures objected to.
AP4 (Applicant): And thirdly, the connection between the applicant and those measures.
AP4 (Applicant): In Kennedy, the court restated the class factors and stipulated two particular issues which the court would take account of in making its assessment.
AP4 (Applicant): Firstly, the availability of any remedies at the national level.
AP4 (Applicant): And secondly, the risk of secret surveillance measures being applied to the applicant.
AP4 (Applicant): So the court will take account of the connection between the applicant and the surveillance measures, or as alternatively expressed, the risk that the measures may be applied to the applicant.
AP4 (Applicant): But the court in these cases does not apply a reasonable likelihood test.
AP4 (Applicant): This was explicitly ruled out in a Kimjijev.
AP4 (Applicant): And the government's therefore wrong in its written submissions long again today to invoke the reasonable likelihood test.
AP4 (Applicant): In both Kennedy and Yodachi, the court was satisfied that the applicants did have victim status on the basis that either it could not be excluded that secret measures were applied to them, or that they were potentially at risk of being subjected to such measures.
AP4 (Applicant): Similarly, in the Liberty case, the test was met because the applicants were persons to whom the surveillance powers might have been applied.
AP4 (Applicant): I pause there to make two more general points which may assist the court in its consideration of the appropriate test.
AP4 (Applicant): Firstly, it's of course essential that the law keeps pace with rapidly changing technical environments.
AP4 (Applicant): We would emphasize that the powers of interception at issue in this case cover not only the content of telephone conversations, but also the related metadata.
AP4 (Applicant): And also, information on subscribers kept in service providers' databases.
AP4 (Applicant): Moreover, the surveillance at issue now covers all the forms of internet telephony which have been developed in recent years, including emails and texts, as well as the means of communications possible through internet-enabled smartphones, Facebook, YouTube, Twitter, instant messaging.
AP4 (Applicant): Such communications play an increasingly important role in political debate and activism.
AP4 (Applicant): Furthermore, the information recently revealed by Edward Snowden shows the extent to which governments are now capable of carrying out mass surveillance programs, often without individual warrants.
AP4 (Applicant): The second point is that as to the question of legal standing, more generally, the court's tendency is to be more expansive rather than restrictive, as evidenced by the recent grand chamber judgment in Campiano.
AP4 (Applicant): Mr. President, I would like to apply the three class
AP4 (Applicant): factors to this case.
AP4 (Applicant): And like all the other cases I've cited, it's the applicant's Article 8 rights which are an issue, the right to respect for his private life and correspondence.
AP4 (Applicant): Secondly, the secret character of the measures.
AP4 (Applicant): The regime in Russia is established by the Operational Search Activities Act, the Federal Security Service Act, and the regulations adopted by the Ministry of Communications, some of which are not published.
AP4 (Applicant): They allow the FSB to monitor phone communications remotely without any obligation to produce the decision authorizing telephone tapping to any person, including the mobile service providers.
AP4 (Applicant): The results are not communicated to the person concerned.
AP4 (Applicant): The law allows the FSB to intercept in some circumstances without judicial authorization.
AP4 (Applicant): The authorization process that does exist is woefully inadequate and is not subject to independent scrutiny, as you will hear from my colleagues.
AP4 (Applicant): As the court held in Kennedy, also relevant to this second issue is the availability of any remedies at the national level.
AP4 (Applicant): The applicant has been wholly unable to mount an effective domestic challenge to the legislation.
AP4 (Applicant): And on this point, I rely on the submissions to be made by Mr. Korotayev.
AP4 (Applicant): Thirdly, the connection between the applicant and the surveillance measures, or the risk of their being applied to him.
AP4 (Applicant): The applicant is a journalist and since 2003 has been employed as the staff correspondent of the Glasnost Defense Foundation in St. Petersburg,
AP4 (Applicant): a well-known human rights organization which monitors journalist rights and freedom of speech, provides legal advice to journalists, and mounts litigation to protect journalists' professional activities.
AP4 (Applicant): His daily work, therefore, is monitoring and publishing on the situation of journalist rights in the region and is centrally concerned with the confidentiality of journalist sources of information.
AP4 (Applicant): This court will be only too aware of the extent of the pressures now being placed on human rights organizations by the authorities in Russia, as exemplified by the so-called foreign agents law.
AP4 (Applicant): There is also a plethora of evidence as to the extent of the pressure on and intimidation of journalists in Russia.
AP4 (Applicant): The Committee to Protect Journalists report that 56 have been killed in Russia since 1992.
AP4 (Applicant): And the internet database of such deaths is in part based on the monitoring work of the Glasnost Defense Foundation.
AP4 (Applicant): Reporters Without Borders has attested to the control of the media by political authorities, as well as the state of impunity for acts of violence against journalists.
AP4 (Applicant): Accordingly, we say that there is a very real and obvious risk that Mr. Zakharov
AP4 (Applicant): may have been subject to surveillance by the authorities in Russia.
AP4 (Applicant): Therefore, he's fully entitled to claim to be a victim of his Article 8 rights.
AP4 (Applicant): Mr. President, I now hand over to Ms. Levine.
AP2 (Applicant): Mr. President, I will address the court on question two
AP2 (Applicant): regarding the procedure for authorizing secret surveillance measures and the content of authorizations.
AP2 (Applicant): As general points, in Ekimgev, amongst other cases, the court noted that national laws on surveillance must be sufficiently clear so as to give adequate indication of the conditions and circumstances in which the authorities may resort to these measures.
AP2 (Applicant): In Weber and Saravia, the court stated that the law must also indicate the scope of the discretionary power in relation to surveillance and the manner of its exercise with sufficient clarity to ensure adequate protection against arbitrary interference.
AP2 (Applicant): Also in Weber and Saravia, the court elaborated on minimum safeguards that must be set out in the law in order to avoid abuses of power.
AP2 (Applicant): These include the nature of the offense giving rise to surveillance, a definition of the categories of people who may be subject to surveillance, and a limitation on the duration of surveillance.
AP2 (Applicant): The authorization usually starts with a request for approval to conduct surveillance.
AP2 (Applicant): The court approved Bulgarian law in this regard, which above and beyond requiring requests to state reasons and identify the individuals who may be subject to surveillance, also required requests to explain the circumstances grounding the suspicion that a qualifying offense is being planned or has been committed, the steps which have already been taken and the results yielded, the duration of the measures, and the methods to be used.
AP2 (Applicant): As to the procedure for authorizing requests, we submit that the authorizing body should consider the application of the minimum standards from Weber and Saravia.
AP2 (Applicant): Firstly, the nature of the offense giving rise to surveillance must be sufficiently clear.
AP2 (Applicant): Secondly, the category of individuals who may be subject to surveillance must also be sufficiently clearly identified.
AP2 (Applicant): And thirdly, the surveillance measures must be limited in duration.
AP2 (Applicant): The court underlined in Iordaci that telephone surveillance is a very serious interference with a person's rights, and only very serious reasons based on a reasonable suspicion should be taken as a basis for authorizing it.
AP2 (Applicant): In light of this, we submit that the authorizing body must also establish whether there are indeed serious reasons for the measures requested, and if these are based on a reasonable suspicion.
AP2 (Applicant): The court has taken account of evidence on the practice of authorization.
AP2 (Applicant): For example, in Ekimgev, the court noted that more than 10,000 surveillance warrants were granted over two years out of a population of less than 8 million in Bulgaria, and concluded that this was evidence of the overuse of the system for surveillance.
AP2 (Applicant): In Iordaci, the court noted that more than 98% of requests for surveillance were granted over a three-year period, and given the general absence of safeguards in Moldovan law, concluded that this indicated that judges did not consider if there was compelling justification for authorizing surveillance.
AP2 (Applicant): In numerous cases, the court has approved the existence of a necessity and proportionality test for authorizing surveillance.
AP2 (Applicant): For example, in Kennedy, the court approved UK law requiring the authorizing body to consider if the information to be obtained by surveillance could reasonably be gathered by other means, whether the measures requested were necessary on the grounds specified under the relevant law, and proportionate to what was sought to be achieved.
AP2 (Applicant): The court has not yet addressed the question of whether it would be justified for the scope of review of the authorizing body to be limited, where the reasons for surveillance relate to, for example, national security.
AP2 (Applicant): On this point, I would like to draw an analogy with the court's principles on the restrictions of the prosecution's duty to disclose material evidence in criminal proceedings in the context of Article VI.
AP2 (Applicant): As set out in Rowan Davis, the duty to disclose evidence should only be limited where it is strictly necessary, such as where there are public interest grounds for doing so.
AP2 (Applicant): In this situation, where the prosecution makes an ex parte application to the court, the judge must conduct a substantive review, weighing up the public interest grounds against the interests of the defendant.
AP2 (Applicant): By analogy, in the Article VIII context, we submit that where public interest grounds are raised, there should be a substantive review of the reasons for and the proportionality of the measures requested.
AP2 (Applicant): As to the content of authorizations, in Kennedy, the court approved the provisions of UK law that require authorizations to specify a person or a single set of physical premises, either by name or description, and be accompanied by an annex setting out the names, telephone numbers, and other relevant information on the subjects of surveillance.
AP2 (Applicant): As regards the nature of the authorizing body, the court has approved this rule falling to a judge, or has at least required there to be judicial oversight of the body examining requests for authorization.
AP2 (Applicant): As to the application of the court's standards in the present case, Mr. President,