CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 4 décembre 2015

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RUSSIA   (Application no. 47143/06)                     JUDGMENT     STRASBOURG   4 December 2015           This judgment is final.   In the case of Roman Zakharov v. Russia, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Dean Spielmann, President ,   Josep Casadevall,   Guido Raimondi,   Ineta Ziemele,   Mark Villiger,     Luis López Guerra,   Khanlar Hajiyev,   Angelika Nußberger,   Julia Laffranque,   Linos-Alexandre Sicilianos,   Erik Møse,   André Potocki,   Paul Lemmens,   Helena Jäderblom,   Faris Vehabović,   Ksenija Turković,   Dmitry Dedov, judges , and Lawrence Early, Jurisconsult , Having deliberated in private on 24 September 2014 and 15 October 2015, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 47143/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Roman Andreyevich Zakharov (“the applicant”), on 20 October 2006. 2.     The applicant was initially represented by Mr B. Gruzd, a lawyer practising in St Petersburg. He was subsequently represented by lawyers of the Memorial Human Rights Centre and the European Human Rights Advocacy Centre (EHRAC), non-governmental organisations based in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.     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. 4.     On 19 October 2009 notice of the application was given to the Government. 5.     On 11 March 2014 a Chamber of the First Section, to which the case had been allocated (Rule 52 § 1 of the Rules of Court), composed of Isabelle Berro, President, Khanlar Hajiyev, Julia Laffranque, Linos-Alexandre Sicilianos, Erik Møse, Ksenija Turković, Dmitry Dedov, judges, and Søren Nielsen, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). 6.     A hearing took place in public in the Human Rights Building, Strasbourg, on 24 September 2014 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government M r   G. Matyushkin , Representative of the Russian Federation at the European Court of Human Rights,   Agent ,   M s   O. Sirotkina,   M s   I. Korieva,   M s   O. Iurchenko,   M r   O. Afanasev,   M r   A. Lakov,   Advisers ;   (b)     for the applicant M r P. Leach,   M s K. Levine,     M r K. Koroteev,     M s A. Razhikova,     Counsel ,   M s E. Levchishina,   Adviser .   The Court heard addresses by Mr Matyushkin, Mr Leach, Ms Levine, Ms   Razhikova and Mr Koroteev, and also replies by Mr Matyushkin and Mr   Leach to questions put by judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     The applicant was born in 1977 and lives in St Petersburg. 8 .     The applicant is the editor-in-chief of a publishing company and of an aviation magazine. He is also the chairperson of the St Petersburg branch of the Glasnost Defence Foundation, a non-governmental organisation (NGO) monitoring the state of media freedom in the Russian regions, which promotes the independence of the regional mass media, freedom of speech and respect for journalists’ rights, and provides legal support, including through litigation, to journalists. 9.     He subscribed to the services of several mobile-network operators. 10 .     On 23 December 2003 he brought judicial proceedings against three mobile-network operators, claiming that there had been an interference with his right to the privacy of his telephone communications. He claimed that pursuant to Order no. 70 (see paragraphs 115-22 below) of the State Committee for Communications and Information Technologies (the predecessor to the Ministry of Communications and Information Technologies – “the Ministry of Communications”), the mobile-network operators had installed equipment which permitted the Federal Security Service (FSB) to intercept all telephone communications without prior judicial authorisation. The applicant argued that Order no. 70, which had never been published, unduly restricted his right to privacy. He asked the court to issue an injunction ordering the removal of the equipment installed pursuant to Order no. 70, and to ensure that access to mobile-telephone communications was given to authorised persons only. The Ministry of Communications and the St Petersburg and Leningrad Region Department of the FSB were joined as a third party to the proceedings. 11 .     On 5 December 2005 the Vasileostrovskiy District Court of St   Petersburg dismissed the applicant’s claims. It found that the applicant had not proved that the mobile-network operators had transmitted any protected information to unauthorised persons or permitted the unrestricted or unauthorised interception of communications. The equipment to which he referred had been installed to enable law-enforcement agencies to conduct operational-search activities in accordance with the procedure prescribed by law. The installation of such equipment had not in itself interfered with the privacy of the applicant’s communications. The applicant had failed to demonstrate any facts which would warrant a finding that his right to the privacy of his telephone communications had been violated. 12 .     The applicant appealed. He claimed, in particular, that the District Court had refused to accept several documents in evidence. Those documents had included two judicial orders retrospectively authorising the interception of mobile-telephone communications and an addendum to the standard service-provider agreement issued by one of the mobile-network operators. One of the judicial orders in question, issued on 8 October 2002, authorised the interception of several people’s mobile-telephone communications during the periods from 1 to 5 April, 19 to 23 June, 30   June to 4 July and 16 to 20 October 2001. The other judicial order, issued on 18 July 2003, authorised the interception of a Mr E.’s mobile-telephone communications during the period from 11 April to 11 October 2003. As to the addendum, it informed the subscriber that if his number were used to make terrorist threats, the mobile-network operator might suspend the provision of the telephone service and transfer the collected data to the law-enforcement agencies. In the applicant’s opinion, the judicial orders and the addendum proved that the mobile-network operators and law-enforcement agencies were technically capable of intercepting all telephone communications without obtaining prior judicial authorisation, and routinely resorted to unauthorised interception. 13 .     On 26 April 2006 the St Petersburg City Court upheld the judgment on appeal. It confirmed the District Court’s finding that the applicant had failed to prove that his telephone communications had been intercepted. Nor had he shown that there was a danger that his right to the privacy of his telephone communications might be unlawfully infringed. To establish the existence of such a danger, the applicant would have had to prove that the respondents had acted unlawfully. However, mobile-network operators were required by law to install equipment enabling law-enforcement agencies to perform operational-search activities and the existence of that equipment did not in itself interfere with the privacy of the applicant’s communications. The refusal to admit the judicial orders of 8 October 2002 and 18   July 2003 in evidence had been lawful, as the judicial orders had been issued in respect of third persons and were irrelevant to the applicant’s case. The City Court further decided to admit in evidence and examine the addendum to the service-provider agreement, but found that it did not contain any information warranting reconsideration of the District Court’s judgment. 14 .     It can be seen from a document submitted by the applicant that in January 2007 an NGO, Civilian Control, asked the Prosecutor General’s Office to carry out an inspection of the Ministry of Communications’ Orders in the sphere of interception of communications in order to verify their compatibility with federal laws. In February 2007 an official from the Prosecutor General’s Office telephoned Civilian Control and asked for copies of the unpublished attachments to Order no. 70, saying that it had been unable to obtain them from the Ministry of Communications. In April 2007 the Prosecutor General’s Office refused to carry out the requested inspection. II.     RELEVANT DOMESTIC LAW A.     Right to respect for private life and correspondence 15.     The Constitution guarantees to everyone the right to respect for his private life, personal and family secrets and the right to defend his honour and reputation (Article 23 § 1). 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). 16.     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. State and municipal authorities must ensure that any person has access to documents and materials affecting his rights and freedoms, except where the law provides otherwise (Article 24). 17.     The Communications Act of 7 July 2003 (no.   126 ‑ FZ) guarantees the privacy of postal, telegraphic and other forms of communication transmitted by means of telecommunications networks or mail services. Restrictions on the privacy of communications are permissible only in cases specified in federal laws (section 63(1)). The interception of communications is subject to prior judicial authorisation, except in cases specified in federal laws (section 63(3)). 18.     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 authorisation. B.     Responsibility for breach of privacy 19 .     The unauthorised collection or dissemination of information about the private or family life of a person without his consent, where it is committed out of mercenary or other personal interest and is damaging to the rights and lawful interests of citizens, is punishable by a fine, correctional labour or a custodial sentence of up to four months. The same actions committed by an official using his position are punishable by a fine, a prohibition on occupying certain positions or a custodial sentence of up to six months (Article 137 of the Criminal Code). 20.     Any breach of citizens’ right to the privacy of their postal, telegraphic, telephone or other forms of communication is punishable by a fine or correctional labour. The same act committed by an official using his position is punishable by a fine, a prohibition on occupying certain positions or a custodial sentence of up to four months (Article 138 of the Criminal Code). 21.     Abuse of power by an official, where it is committed out of mercenary or other personal interest and entails a substantial violation of an individual’s or a legal entity’s rights and lawful interests, is punishable by a fine, a prohibition on occupying certain posts or engaging in certain activities for a period of up to five years, correctional labour for a period of up to four years or imprisonment for a period ranging from four months to four years (Article 285 §   1 of the Criminal Code). 22 .     Actions by a public official which clearly exceed his authority and entail a substantial violation of an individual’s or a legal entity’s rights and lawful interests, are punishable by a fine, a prohibition on occupying certain posts or engaging in certain activities for a period of up to five years, correctional labour for a period of up to four years or imprisonment for a period ranging from four months to four years (Article 286 § 1 of the Criminal Code). 23.     Ruling no. 19 of 16 October 2009 by the Plenary Supreme Court provides that for the purposes of Articles 285 and 286 of the Criminal Code “a substantial violation of an individual’s or a legal entity’s rights and lawful interests” means a violation of the rights and freedoms guaranteed by the generally established principles and provisions of international law and the Constitution of the Russian Federation – such as the right to respect for a person’s honour and dignity, private or family life, correspondence, telephone, postal, telegraph and other communications, the inviolability of the home, etc. In assessing whether the violation was “substantial” in respect of a legal entity, it is necessary to take into account the extent of the damage sustained as a result of the unlawful act, the nature and the amount of the pecuniary damage, the number of persons affected and the gravity of the physical, pecuniary or non-pecuniary damage inflicted on them (paragraph   18 (2)). 24 .     Criminal proceedings are opened if there are sufficient facts showing that a criminal offence has been committed (Article 140 § 2 of the Code of Criminal Procedure). C.     General provisions on interception of communications 25.     The interception of communications is governed by the Operational-Search Activities Act of 12 August 1995 (no. 144 ‑ FZ – “the OSAA”), applicable to the interception of communications both in the framework of criminal proceedings and outside such framework; and the Code of Criminal Procedure of 18 December 2001 (no. 174-FZ, in force since 1 July 2002 – “the CCrP”), applicable only to the interception of communications in the framework of criminal proceedings. 26 .     The aims of operational-search activities are (a) the detection, prevention, suppression and investigation of criminal offences and the identification of persons conspiring to commit, committing, or having committed a criminal offence; (b) the tracing of fugitives from justice and missing persons; (c) obtaining information about events or activities endangering the national, military, economic or ecological security of the Russian Federation (section   2 of the OSAA). On 25 December 2008 that section was amended and a further aim, that of obtaining information about property subject to confiscation, was added. 27.     State officials and agencies performing operational-search activities must show respect for the private and family life, home and correspondence of citizens. It is prohibited to perform operational-search activities to achieve aims or objectives other than those specified in the Act (section 5(1) and (2) of the OSAA). 28.     State officials and agencies may not (a) conduct operational-search activities in the interest of political parties, non-profit or religious organisations; (b) conduct secret operational-search activities in respect of federal, regional or municipal authorities, political parties, or non-profit or religious organisations with the aim of influencing their activities or decisions; (c) disclose to anyone the data collected in the course of the operational-search activities if those data concern the private or family life of citizens or damage their reputation or good name, except in cases specified in federal laws; (d) incite, induce or entrap anyone to commit a criminal offence; (e) or falsify the results of operational-search activities (section 5(8) of the OSAA). 29.     Operational-search activities include, inter alia , the interception of postal, telegraphic, telephone and other forms of communication and the collection of data from technical channels of communication. The Act stipulates that audio and video-recording, photography, filming and other technical means may be used during operational-search activities, provided that they are not harmful to the life or health of those involved or to the environment. Operational-search activities involving the interception of postal, telegraphic, telephone and other forms of communication and collection of data from technical channels of communication using equipment installed by communications service providers is carried out by technical means by the FSB and the agencies of the Ministry of the Interior, in accordance with decisions and agreements signed between the agencies involved (section 6 of the OSAA). 30.     Presidential Decree no. 891 of 1 September 1995 provides that the interception of postal, telegraphic or other communications is to be carried out by the FSB in the interests and on behalf of all law-enforcement agencies (paragraph 1). In situations where the FSB does not have available the necessary technical equipment, interceptions may be carried out by the agencies of the Ministry of the Interior in the interests and on behalf of all law-enforcement agencies (paragraph 2). Similar provisions are contained in paragraphs 2 and 3 of Order no. 538, issued by the government on 27   August 2005. D.     Situations that may give rise to interception of communications 31 .     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, may be conducted 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). 32 .     The OSAA provides that interception of telephone and other communications may be authorised only in cases where a person is suspected of, or charged with, a criminal offence of medium severity, a serious offence or an especially serious criminal offence, or may have information about such an offence (section 8(4) of the OSAA). The CCrP also provides that interception of telephone and other communications of a suspect, an accused or other person may be authorised if there are reasons to believe that they may contain information relevant for the criminal case in respect of a criminal offence of medium severity, a serious offence or an especially serious criminal offence (Article   186 § 1 of the CCrP). 33 .     Article 15 of the Criminal Code provides that “offences of medium severity” are premeditated offences for which the Criminal Code prescribes a maximum penalty of between three and five years’ imprisonment and unpremeditated offences for which the Criminal Code prescribes a maximum penalty of more than three years’ imprisonment. “Serious offences” are premeditated offences for which the Criminal Code prescribes a maximum penalty of between five and ten years’ imprisonment. “Especially serious offences” are premeditated offences for which the Code prescribes a maximum penalty of more than ten years’ imprisonment or a harsher penalty. E.     Authorisation procedure and time-limits 1.     Operational-Search Activities Act 34 .     Operational-search measures 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 – such as an inspection of premises or buildings, an interception of postal, telegraphic, telephone and other forms of communication or a collection of data from technical channels of communication – require prior judicial authorisation (section   8(2) of the OSAA). 35 .     In urgent cases where there is an immediate danger that a serious or especially serious offence may be committed or where there is information about events or activities endangering national, military, economic or ecological security, the operational-search measures specified in section   8(2) may be conducted without prior judicial authorisation. In such cases a judge must be informed within twenty-four hours of the commencement of the operational-search activities. If judicial authorisation has not been obtained within forty-eight hours of the commencement of the operational-search activities, those activities must be stopped immediately (section 8(3) of the OSAA). 36.     The examination of requests to take measures involving interference with the constitutional right to the privacy of correspondence and telephone, postal, telegraphic and other communications transmitted by means of telecommunications networks or mail services, or with the right to privacy of the home, falls within the competence of a court in the locality where the requested measure is to be carried out or in the locality where the requesting body is located. The request must be examined immediately by a single judge (section 9(1) of the OSAA). 37 .     The judge takes a decision on the basis of a reasoned request by the head of one of the agencies competent to perform operational-search activities. Relevant supporting materials, except materials containing information about undercover agents or police informers or about the organisation and tactics of operational-search measures, may also be produced at the judge’s request (section 9(2) and (3) of the OSAA). 38 .     The judge examining the request shall decide whether to authorise measures involving interference with the above-mentioned constitutional rights, or to refuse authorisation, giving reasons. The judge must specify the period of time for which the authorisation is granted, which shall not normally exceed six months. If necessary, the judge may extend the authorised period after a fresh examination of all the relevant materials (section   9(4) and (5) of the OSAA). 39.     The judicial decision authorising operational-search activities and the materials that served as a basis for that decision must be held in the exclusive possession of the State agency performing the operational-search activities (section 12(3) of the OSAA). 40 .     On 14 July 1998 the Constitutional Court, in its decision no. 86-O, dismissed as inadmissible a request for a review of the constitutionality of certain provisions of the OSAA. It held, in particular, that a judge was to authorise investigative measures involving interference with constitutional rights only if he was persuaded that such measures were lawful, necessary and justified, that is, compatible with all the requirements of the OSAA. The burden of proof was on the requesting State agency to show the necessity of the measures. Supporting materials were to be produced to the judge at his request. Given that some of those materials might contain State secrets, only judges with the necessary level of security clearance could examine authorisation requests. Further, relying on the need to keep the surveillance measures secret, the Constitutional Court held that the principles of a public hearing and adversarial proceedings were not applicable to the authorisation proceedings. The fact that the person concerned was not entitled to participate in the authorisation proceedings, to be informed of the decision taken or to appeal to a higher court did not therefore violate that person’s constitutional rights. 41 .     On 2 October 2003 the Constitutional Court, in its decision no.   345-O, held that the judge had an obligation to examine the materials submitted to him in support of a request for interception thoroughly and carefully. If the request was insufficiently substantiated, the judge could request additional information. 42 .     Further, on 8 February 2007 the Constitutional Court, in its decision no. 1-O, dismissed as inadmissible a request for a review of the constitutionality of section 9 of the OSAA. It found that before granting authorisation to perform operational-search measures the judge had an obligation to verify the grounds for that measure. The judicial decision authorising operational-search measures was to contain reasons and to refer to specific grounds for suspecting that a criminal offence had been committed, was being committed, or was being plotted or that activities endangering national, military, economic or ecological security were being carried out, and that the person in respect of whom operational-search measures were requested was involved in those criminal or otherwise dangerous activities. 43 .     On 15 July 2008 the Constitutional Court, in its decision no.   460 ‑ O ‑ O, dismissed as inadmissible a request for a review of the constitutionality of sections 5, 11 and 12 of the OSAA. The Constitutional Court found that a person whose communications had been intercepted was entitled to lodge a supervisory-review complaint against the judicial decision authorising the interception. The fact that he had no copy of that decision did not prevent him from lodging the supervisory-review complaint, because the relevant court could request it from the competent authorities. 2.     Code of Criminal Procedure 44 .     Investigative measures involving a search in a person’s home or interception of his telephone calls and other communications are subject to prior judicial authorisation. A request to search a person’s home or intercept his communications must be submitted by an investigator with a prosecutor’s approval and must be examined by a single judge within twenty-four hours. The prosecutor and the investigator are entitled to attend. The judge examining the request shall decide whether to authorise the requested measure, or to refuse authorisation, giving reasons (Article 165 of the CCrP). 45.     A court may grant authorisation to intercept the communications of a suspect, an accused or other persons if there are reasons to believe that information relevant to the criminal case may be discussed (Article 186 § 1 of the CCrP). 46 .     A request for authorisation to intercept communications must clearly mention (a) the criminal case to which the request is related; (b) the grounds for conducting the requested measures; (c) the family name, the first name and the patronymic of the person whose communications are to be intercepted; (d) the duration of the requested measure; and (e) the State agency that will perform the interception (Article   186 § 3 of the CCrP) 47 .     The judicial decision authorising interception of communications must be forwarded by the investigator to the State agency charged with its implementation. The interception of communications may be authorised for a period not exceeding six months, and is discontinued by the investigator when it is no longer necessary. It must in any case be discontinued when the investigation has been completed (Article   186 §§ 4 and 5 of the CCrP). 48 .     A court may also authorise the monitoring of communications data relating to a person’s telephone or wireless connections if there are sufficient reasons to believe that such data may be relevant to a criminal case. A request for authorisation must contain the same elements referred to in paragraph 46 above. A copy of the judicial decision authorising the monitoring of a person’s communications-related data is forwarded by the investigator to the relevant communications service provider, which must then submit the requested data to the investigator on a regular basis, and at least once a week. The monitoring of communications data may be authorised for a period not exceeding six months, and is discontinued by the investigator when it is no longer necessary. It must in any case be discontinued when the investigation has been completed (Article 186.1 of the CCrP, added on 1 July 2010). F.     Storage, use and destruction of collected data 1.     Storage of collected data 49.     Section 10 of the OSAA stipulates that law-enforcement agencies performing operational-search activities may create and use databases or open personal files. The personal file must be closed when the aims specified in section 2 of the Act have been achieved or if it has been established that it is impossible to achieve them. 50 .     In its decision of 14 July 1998 (see paragraph 40 above), the Constitutional Court noted, as regards the possibility provided by section 10 for law-enforcement agencies conducting operational-search activities to create databases or open personal files, that only the data relating to the prevention or investigation of criminal offences could be entered into such databases or personal files. Given that criminal activities did not fall within the sphere of private life, collection of information about such criminal activities did not interfere with the right to respect for private life. If information about a person’s criminal activities entered into a file was not subsequently confirmed, the personal file had to be closed. 51 .     Records of intercepted telephone and other communications must be sealed and stored under conditions excluding any risk of their being listened to or copied by unauthorised persons (section 8(4) of the OSAA). 52 .     Information about the facilities used in operational-search activities, the methods employed, the officials involved and the data collected constitutes a State secret. It may be declassified only pursuant to a special decision of the head of the State agency performing the operational-search activities (section 12(1) of the OSAA and section 5(4) of Law no. 5485-I of 21   July 1993 – “the State Secrets Act”). 53.     Materials containing State secrets should be clearly marked with the following information: degree of secrecy, the State agency which has taken the decision to classify them, registration number, and the date or conditions for declassifying them (section 12 of the State Secrets Act). 2.     Use of collected data and conditions for their disclosure 54 .     Information containing State secrets may be disclosed to another State authority, an organisation or an individual only subject to authorisation by the State authority which took the decision to classify that information. It may be disclosed only to State authorities or organisations holding a special license or to individuals with the required level of security clearance. The State authority or organisation to which classified information is disclosed must ensure that that information is adequately protected. The head of such State authority or organisation is personally responsible for protecting the classified information against unauthorised access or disclosure (sections 16 and 17 of the State Secrets Act). 55.     A license to access State secrets may be issued to an organisation or a company only after it has been confirmed that it has specific internal departments charged with data protection, that its employees are qualified to work with classified information and that it uses approved systems of data protection (section 27 of the State Secrets Act). 56.     Security clearance is granted only to those State officials who genuinely need it for the performance of their duties. It is also granted to judges for the period of their service and to counsel participating in a criminal case if the case file contains materials involving State secrets. Anyone who has been granted security clearance must give a written undertaking not to disclose the classified information entrusted to him (paragraphs 7, 11 and 21 of Regulation no. 63 of 6 February 2010 of the government of the Russian Federation). 57 .     The head of the State authority or organisation in possession of information containing State secrets is responsible for giving State officials and other authorised persons access to that information. He must ensure that only the information that the recipient needs for the performance of his duties is disclosed (section 25 of the State Secrets Act). 58 .     If the data collected in the course of operational-search activities contain information about the commission of a criminal offence, that information, together with all the necessary supporting material such as photographs and audio or video-recordings, must be sent to the competent investigation authorities or a court. If the information was obtained as a result of operational-search measures involving interference with the right to the privacy of postal, telegraphic and other communications transmitted by means of a telecommunications network or mail services, or with the privacy of the home, it must be sent to the investigation or prosecution authorities together with the judicial decision authorising those measures.The information must be transmitted in accordance with the   special procedure for handling classified information, unless the State   agency performing operational-search activities has decided to   declassify it (paragraphs 1, 12, 14 and 16 of Order no.   776/703/509/507/1820/42/535/398/68 of 27 September 2013 by the Ministry of the Interior). 59.     If the person whose telephone or other communications were intercepted is charged with a criminal offence, the records are to be given to the investigator and attached to the criminal case file. Their further use and storage are governed by criminal procedural law (section 8(5) of the OSAA). 60.     Data collected as a result of operational-search activities may be used for the preparation and conduct of the investigation and court proceedings and used as evidence in criminal proceedings in accordance with the legal provisions governing the collection, evaluation and assessment of evidence. The decision to transfer the collected data to other law-enforcement agencies or to a court is taken by the head of the State agency performing the operational-search activities (section 11 of the OSAA). 61.     If the interception was authorised in the framework of criminal proceedings, the investigator may obtain the records from the agency conducting it at any time during the authorised period of interception. The records must be sealed and must be accompanied by a cover letter indicating the dates and time of the beginning and end of the recorded communications, as well as the technical means used to intercept them. Recordings must be listened to by the investigator in the presence of attesting witnesses, an expert (where necessary) and the persons whose communications have been intercepted. The investigator must draw up an official report containing a verbatim transcription of those parts of the recorded communications that are relevant to the criminal case (Article 186 §§ 6 and 7 of the CCrP). On 4 March 2013 Article 186 § 7 was amended and the requirement of the presence of attesting witnesses was deleted. 62.     Recordings and communications-related data that have been collected are to be attached to the criminal case file. They must be sealed and stored under conditions excluding any risk of their being listened to or copied by unauthorised persons (Article 186 § 8 of the CCrP and Article 186.1, added on 1 July 2010). 63.     The results of operational-search activities involving a restriction on the right to respect for correspondence, telephone, postal, telegraph or other communications may be used as evidence in criminal proceedings only if they have been obtained pursuant to a court order and if the operational-search activities have been carried out in accordance with the law on criminal procedure (paragraph 14 of Ruling no. 8 of 31 October 1995 by the Plenary Supreme Court of the Russian Federation). 64 .     It is prohibited to use in evidence data obtained as a result of operational-search activities that do not comply with the admissibility-of-evidence requirements of the CCrP (Article 89 of the CCrP). Evidence obtained in breach of the CCrP shall be inadmissible. Inadmissible evidence shall have no legal force and cannot be relied on as grounds for criminal charges or for proving any of the circumstances for which evidence is required in criminal proceedings. If a court decides to exclude evidence, that evidence shall have no legal force and cannot be relied on in a judgment or other judicial decision, or be examined or used during the trial (Articles   75 and 235 of the CCrP). 3.     Destruction of collected data 65 .     The data collected in the course of operational-search activities in respect of a person whose guilt has not been proved in accordance with the procedure prescribed by law must be stored for a year and then destroyed, unless those data are needed in the interests of the authority or of justice. Audio-recordings and other materials collected as a result of intercepting telephone or other communications must be stored for six months and then destroyed if the person has not been charged with a criminal offence. The judge who authorised the interception must be informed of the scheduled destruction three months in advance (section 5(7) of the OSAA). 66 .     If the person has been charged with a criminal offence, at the end of the criminal proceedings the trial court takes a decision on the further storage or destruction of the data used in evidence. The destruction must be recorded in a report to be signed by the head of the investigation authority and included in the case file (Article   81 § 3 of the CCrP and paragraph 49 of Order no. 142 of 30 September 2011 of the Investigations Committee). G.     Supervision of interception of communications 67.     The heads of the agencies conducting operational-search activities are personally responsible for the lawfulness of all operational-search activities (section 22 of the OSAA). 68.     Overall supervision of operational-search activities is exercised by the President, Parliament and the government of the Russian Federation within the limits of their competence (section 20 of the OSAA). 69 .     The Prosecutor General and competent lower-level prosecutors may also exercise supervision over operational-search activities. At the request of a competent prosecutor, the head of a State agency performing operational-search activities must produce operational-search materials, including personal files, information on the use of technical equipment, registration logs and internal instructions. Materials containing information about undercover agents or police informers may be disclosed to the prosecutor only with the agent’s or informer’s consent, except in cases of criminal proceedings against them. The head of a State agency may be held liable in accordance with the law for failure to comply with the prosecutor’s request. The prosecutor must ensure the protection of the data contained in the materials produced (section 21 of the OSAA). 70 .     The Prosecutors’ Office Act (Federal Law no. 2202-I of 17 January 1992) provides that the Prosecutor General is to be appointed or dismissed by the Federation Council (the upper house of Parliament) on proposal by the President (section 12). Lower-level prosecutors are to be appointed by the Prosecutor General after consultation with the regional executive authorities (section 13). To be appointed as a prosecutor the person must be a Russian citizen and must have a Russian law degree (section 40.1). 71 .     In addition to their prosecuting functions, prosecutors are responsible for supervising whether the administration of detention facilities, bailiffs’ activities, operational-search activities and criminal investigations are in compliance with the Russian Constitution and Russian laws (section 1). Prosecutors also coordinate the activities of all law-enforcement authorities in combatting crime (section 8). 72.     As regards supervision of operational-search activities, prosecutors may review whether measures taken in the course of operational-search activities are lawful and respectful of human rights (section 29). Prosecutors’ orders made in the context of such supervision must be complied with within the time-limit set. Failure to comply may result in liability in accordance with the law (section 6). 73.     Prosecutors may also examine complaints of breaches of the law and give a reasoned decision on each complaint. Such a decision does not prevent the complainant from bringing the same complaint before a court. If a prosecutor discovers a breach of the law, he must take measures to bring the responsible persons to account (section 10). 74 .     The Federal Security Service Act of 3 April 1995 (no.   40-FZ – “the FSB Act”) provides that information about the security services’ undercover agents, as well as about the tactics, methods and means used by them is outside the scope of supervision by prosecutors (section   24). 75 .     The procedures for prosecutors’ supervision of operational-search activities have been set out in Order no. 33, issued by the Prosecutor General’s Office on 15 February 2011. 76 .     Order no. 33 provides that a prosecutor may carry out routine inspections of agencies carrying out operational-search activities, as well as ad hoc inspections following a complaint by an individual or receipt of information about potential violations. Operational-search activities performed by the FSB in the sphere of counterintelligence may be inspected only following an individual complaint (paragraph 5 of Order no.   33). 77.     During the inspection the prosecutor must verify compliance with the following requirements: –     observance of citizens’ constitutional rights, such as the right to respect for private and family life, home, correspondence, telephone, postal, telegraph and other communications; –     that the measures taken in the course of operational-search activities are lawful and justified,   including those measures that have been authorised by a court (paragraphs 4 and 6 of Order no. 33). 78.     During the inspection the prosecutor must study the originals of the relevant operational-search materials, including personal files, information on the use of technical equipment, registration logs and internal instructions, and may request explanations from competent officials. The prosecutors must protect the sensitive data entrusted to them from unauthorised access or disclosure (paragraphs 9 and 12 of Order no. 33). 79 .     If a prosecutor identifies a breach of the law, he must request the official responsible for it to remedy the breach. He must also take measures to stop and remedy violations of citizens’ rights and to bring those responsible to liability (paragraphs 9 and 10 of Order no. 33). A State official who refuses to comply with a prosecutor’s orders may be brought to account in accordance with the law (paragraph 11). 80 .     The prosecutors responsible for supervision of operational-search activities must submit six-monthly reports detailing the results of the inspections to the Prosecutor General’s Office (paragraph 15 of Order no.   33). A report form to be filled in by prosecutors is attached to Order no.   33. The form indicates that it is confidential. It contains two sections, both in table format. The first section concerns inspections carried out during the reference period and contains information about the number of inspections, number of files inspected and number of breaches detected. The second section concerns citizens’ complaints and contains information about the number of complaints examined and granted. H. &