CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 7 novembre 2017

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RUSSIA   (Applications nos. 29431/05 and 2 others – see appended list)               JUDGMENT       STRASBOURG   7 November 2017     FINAL   05/03/2018   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zubkov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Helena Jäderblom, President,   Branko Lubarda,   Helen Keller,   Dmitry Dedov,   Pere Pastor Vilanova,   Alena Poláčková,   Georgios A. Serghides, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 10 October 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in three applications (nos.   29431/05, 7070/06 and   5402/07) 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 three Russian nationals. Their names and dates of birth, as well as the dates on which they lodged their applications, are listed in the appendix. 2.     The Russian Government (“the Government”) were represented by Mr   G.   Matyushkin, Representative of the Russian Federation at the European Court of Human Rights, and then by his successor in that office, Mr   M.   Galperin. Two of the applicants were represented by lawyers whose names are listed in the appendix. 3.     The applicants alleged, in particular, that they had been subjected to covert surveillance in breach of Article 8 of the Convention. One of the applicants also complained of the excessive length of the criminal proceedings. Another complained of the inhuman conditions of detention and transport. He also alleged that his pre-trial detention had not been attended by sufficient procedural guarantees. 4.     Between 26 August 2009 and 21 December 2012 the above complaints were communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Application no. 29431/05 Zubkov v. Russia 5.     On 12 April 2002 the local police sent to the local investigations committee audio recordings of telephone conversations between the applicant and several persons, and video recordings of their meetings in a flat in Novgorod. The accompanying letter, which the Government presented to the Court, stated that the audio and video recordings had been obtained in the course of covert “operational-search” measures (“ оперативно-розыскные мероприятия ”) authorised by the President of the Novgorod Regional Court on 19 July and 31 August 2000 and 17 and 27   February 2001. 6.     On 16 April 2002 the applicant was arrested and charged with several counts of drug trafficking committed by an organised criminal group. Four more persons were arrested on the same charge. 7.     On 18 April 2002 the Novgorod Regional Prosecutor’s Office ordered the applicant’s placement in custody pending trial. He remained in custody throughout the criminal proceedings. 8.     The applicant learned about the audio and video recordings on an unspecified date while studying the criminal case file. 9.     On 26 June 2002 the investigation was completed and the case was sent for trial to the Novgorod Town Court. 10.     On 18 July 2002 counsel of one of the defendants asked that the trial be adjourned until September 2002 because he would be on annual leave until 6 September. 11.     On 20 August 2002 the Novgorod Town Court scheduled the first hearing for 16 September 2002. The hearing of 16 September 2002 was adjourned until 23 September 2002 because the applicant’s counsel was in hospital and because the prosecution witnesses did not appear. The trial eventually started on 20 November 2002. 12.     At the trial the applicant pleaded not guilty. He claimed, in particular, that the audio and video recordings were inadmissible as evidence as they had been obtained without prior judicial authorisation. 13.     His co-defendants pleaded guilty. They testified that the applicant was the leader of an organised group dealing in drugs. The applicant and another defendant, Mr K., had rented a flat where the members of the group had met to receive instructions from the applicant and to distribute the profits. They had also packaged and stored drugs in the flat. The owner of the flat testified that he had rented his flat to Mr K. and that on several occasions the rent had been paid by the applicant. 14.     On 24 November 2004 the Novgorod Town Court found the applicant and his co-defendants guilty of drug trafficking. It found it established that the applicant was the leader of an organised criminal group dealing in drugs. It relied on witness testimony, expert reports, audio recordings of telephone conversations between the defendants and video recordings of their meetings in the rented flat. It found that the recordings were admissible as evidence because they “had been obtained in the course of authorised covert operational-search measures aiming at uncovering criminal acts committed by Zubkov and the criminal group organised by him”. The applicant was sentenced to nine years and six months’ imprisonment. 15.     In his appeal submissions the applicant complained, in particular, that the audio and video recordings had been obtained without prior judicial authorisation. 16.     On 8 February 2005 the Novgorod Regional Court upheld the judgment on appeal. It repeated verbatim the Town Court’s finding that the audio and video recordings were admissible as evidence because they “had been obtained in the course of authorised covert operational-search measures aiming at uncovering criminal acts committed by Zubkov and the criminal group organised by him”. B.     Application no. 7070/06 Ippolitov v. Russia 17.     The applicant worked as an investigator at the Prosecutor General’s Office. 18.     On 6 April 2004 he was arrested and charged with aiding and abetting bribery. 19.     On 29 October 2004, while studying the criminal case file, the applicant discovered that it contained audio recordings of his telephone conversations during the period from November 2003 to March 2004. 20.     The criminal case file also contained a letter of 21 October 2004 from the Federal Security Service to the local prosecutor stating that the audio recordings had been obtained in the course of covert operational ‑ search measures authorised by the Tver Regional Court in its decisions nos.   55-21, 55-30, 55-76, 55-93 and 55-103. Given that they were classified documents, the decisions could not be shown to the prosecutor and would be shown to the trial court only at its request. 21.     During the trial the applicant pleaded not guilty. He argued, in particular, that the audio and video recordings were inadmissible as evidence because the case file did not contain a copy of the judicial authorisation. The prosecutor stated in reply that the interception of his telephone communications had been authorised by the Tver Regional Court. A copy of the authorisation had not been included in the case file because it was confidential. 22.     On 14 May 2005 the Regional Court convicted the applicant of aiding and abetting bribery and sentenced him to three years’ imprisonment. The court relied, among other things, on the audio recordings of his telephone conversations. The court rejected the applicant’s argument that the audio recordings were inadmissible as evidence, finding that “the examination of the material in the case file [had] permitted [the court] to establish that the evidence [had been] obtained in accordance with the Code of Criminal Procedure and the Operational-Search Activities Act”. 23.     The applicant appealed. He submitted that the Regional Court had not given reasons for its finding that the audio recordings were admissible as evidence. In particular, it had not examined whether the interception of his telephone conversations had been duly authorised by a court and carried out in accordance with the procedure prescribed by law. 24.     On 7 December 2005 the Supreme Court of Russia upheld the judgment on appeal. The court did not specifically address the applicant’s argument that the audio recordings were inadmissible as evidence. It held that the finding of guilt had been based on evidence which had been properly analysed and assessed by the Regional Court. The applicant received the decision on 7   March 2006. C.     Application no. 5402/07 Gorbunov v. Russia 1.     The applicant’s detention 25.     On 5 July 2006 the Frunzenskiy District Court of Vladimir ordered the applicant’s detention on charges of fraud. The applicant was absent from the hearing but his counsel attended. On 14 July 2006 the Vladimir Regional Court upheld the detention order on appeal. The applicant was absent also from the appeal hearing, which was again attended by his counsel. 26 .     On 3 November 2006 the Frunzenskiy District Court extended the applicant’s detention until 5 January 2007. On 7 November 2006 the applicant appealed. On 5 December 2006 the Vladimir Regional Court found that there were no reasons to vary the preventive measure and upheld the decision of 3 November 2006. 27.     The applicant’s detention was further extended on several more occasions. 2.     Conditions of detention in remand prisons 28.     In the period from 14 September 2006 to 12 January 2007 the applicant was detained in four remand prisons. According to the applicant, all four remand prisons were overcrowded. 29.     From 14 to 22 September 2006 the applicant was held in remand prison IZ-67/1 in Smolensk. Cell 196 measuring 15 sq. m was equipped with eight sleeping places and accommodated up to sixteen inmates. 30.     From 25 to 28 September 2006 the applicant was held in remand prison 76/1 in Yaroslavl. Cell   133 measuring 9 sq. m was equipped with seven sleeping places and accommodated up to eight inmates. 31.     From 29 September to 1 October 2006 the applicant was held in remand prison 43/1 in Kirov. His cell measuring 50 sq. m was equipped with forty sleeping places and accommodated up to twenty inmates. The cell was equipped with wooden boards instead of individual beds. 32.     From 2 October 2006 to 12 January 2007 the applicant was held in remand prison 33/1 in Vladimir. Cell   63 measuring 14 sq. m was equipped with four sleeping places and accommodated up to five inmates. 3.     Conditions of transport 33.     On 28 and 29 September 2006 the applicant was transported by rail between remand prison IZ-76/1 and remand prison IZ-43/1 from Yaroslavl to Kirov. The train compartment was equipped with seven sleeping places and accommodated up to ten inmates. 34.     On 1 and 2 October 2006 the applicant was transported by rail between remand prison IZ-43/1 and remand prison IZ-33/1 from Kirov to Vladimir. The train compartment was equipped with seven sleeping places and accommodated up to twelve inmates. 4.     Interception of the applicant’s telephone communications 35.     On 25 December 2006 the applicant started to study the criminal case file and discovered that it contained audio recordings of his telephone conversations between 22 and 25 July 2004. 36.     On 2 February 2007 the applicant asked the investigator for a copy of the judicial decision authorising the interception. On the same day the investigator refused his request. Relying on the Interior Ministry’s Order no.   336 of 13   May 1998 (see paragraph 54 below), he replied that the police were not required to send the interception authorisation to the investigator; it was to be kept in the operational search file. The Vladimir Regional Court’s decisions of 28 May and 2 June 2004 authorising interception of the applicant’s telephone communications were stored by the local police. They were classified documents and neither the applicant nor his counsel, who had no security clearance, could be granted access to them. 37.     On 6 February 2007 the applicant complained to   the Frunzenskiy District Court of Vladimir that the interception of his telephone communications had been unlawful, in particular because the case file did not contain a judicial authorisation. He submitted that the refusal to give him a copy of the interception authorisation had frustrated him in the exercise of his defence rights and deprived him of an effective remedy against an interference with his rights guaranteed by Articles 23 and 24 of the Constitution and Article 8 of the Convention. In particular, he had been unable to ascertain whether the interception authorisation had been issued by a competent court in accordance with the procedure prescribed by law, whether it had been based on relevant and sufficient reasons or whether the requirements for judicial authorisation, such as the authorised duration of interception, had been complied with at the implementation stage. 38.     On 19 February 2007 the Frunzenskiy District Court examined the complaint under Article 125 of the Code of Criminal Procedure (see paragraph 63 below) and rejected it. Relying on section 12 of the Operational-Search Activities Act (see paragraph 49 below), the court held that the judicial decision authorising operational-search measures and the material that served as a basis for that decision were to be held in the exclusive possession of the State agency performing such measures. It had therefore not been included in the criminal case file and the defendant was not entitled to have access to it. The court further referred to the Constitutional Court’s ruling of 14 July 1998, holding that the person whose communications were to be intercepted was not entitled to participate in the authorisation proceedings or to be informed about the decision taken (see paragraph 50 below). The refusal to give the applicant a copy of the judicial authorisation had therefore been lawful. The court also rejected the applicant’s complaint about the unlawfulness of the interception, without giving any reasons. 39.     On 3 April 2007 the Vladimir Regional Court upheld the decision of 19 February 2007 on appeal, finding it lawful, well reasoned and justified. II.     RELEVANT DOMESTIC LAW A.     Right to respect for private life, home and correspondence 40.     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, telephone, postal, telegraph and other communications. That right may be restricted only on the basis of a court order (Article 23 §   2). 41.     The Constitution also stipulates that it is not permissible to collect, store, use or disseminate information about a person’s private life without his or her consent. State and municipal authorities must ensure that any person has access to documents and material affecting his rights and freedoms, except where the law provides otherwise (Article 24). 42 .     The Constitution also guarantees to everyone the right to respect for his or her home. Nobody may enter a home without the consent of those living in it, except in cases established by federal law, or on the basis of a court order (Article 25). B.     Provisions on interception of communications and inspection of the home, and use of the data thereby collected in criminal proceedings 1.     Authorisation of interception of communications or inspection of the home 43.     The Operational-Search Activities Act of 12 August 1995 (Law no.   144 ‑ FZ – hereafter “the OSAA”) provides that “operational-search” measures (“ оперативно-розыскные мероприятия ”) may include, among other things, the interception of postal, telegraphic, telephone and other forms of communication; the collection of data from technical channels of communication; the inspection of premises, buildings, other installations, vehicles and areas; “surveillance” (“ наблюдение ”); and “operative experiments” (“ оперативный эксперимент ”). Audio and video recording, photography, filming and other technical means may be used during operational-search activities, provided that they are not harmful to anyone’s life or health or to the environment (section 6). 44 .     The aims of operational-search activities are: (1) to detect, prevent, suppress and investigate criminal offences and the identification of persons conspiring to commit, committing, or having committed a criminal offence; (2) to trace fugitives from justice and missing persons; and (3) to obtain information about events or activities endangering the national, military, economic or ecological security of the Russian Federation (section 2 of the OSAA, as in force at the material time). 45.     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 (“interception of communications”), or within the privacy of the home (“inspection of the home”), may be conducted following the receipt of information (1) that a criminal offence has been committed or is ongoing, or is being plotted; (2) about persons conspiring to commit, or committing, or having committed a criminal offence; or (3) about events or activities endangering the national, military, economic or ecological security of the Russian Federation (section 8(2) of the OSAA). 46.     At the material time the interception of communications or inspection of the home could be authorised only in cases where a person was suspected of, or charged with, a serious offence or an especially serious criminal offence, or might have information about such an offence (section 8(4) of the OSAA, as in force until 24 July 2007). Since 24 July 2007 the interception of communications or inspection of the home may be authorised also in cases where a person is suspected of, or charged with, a criminal offence of medium severity. 47.     Operational-search measures involving interception of communications or inspection of the home require prior judicial authorisation (section 8(2) of the OSAA). The judge must specify the period of time for which the authorisation is granted, which must not normally exceed six months. If necessary, the judge may extend the authorised period after a fresh examination of all the relevant material (section 9(4) and (5) of the Act). 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 material, except material containing information about undercover agents or police informers or about the organisation and tactics of operational-search measures, must also be produced at the judge’s request (section 9(2) and (3) of the Act). 48.     In urgent cases where there is an immediate danger that a serious or especially serious offence might 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 Act). 49 .     The judicial decision authorising operational-search activities and the material that served as a basis for that decision must be held in the exclusive possession of the State agency performing such activities (section   12(3) of the Act). 50 .     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. Relying on the need to keep 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 about the decision taken or to appeal to a higher court did not, therefore, violate his or her constitutional rights. 51 .     On 15 July 2008 the Constitutional Court, in its decision no.   460 ‑ O ‑ O, held that a person whose communications had been intercepted was entitled to apply for a supervisory review of the judicial decision authorising the interception. The fact that he had no copy of that decision did not prevent him from applying for a supervisory review, because the relevant court could request it from the competent authorities. 2.     Use in criminal proceedings of data collected as a result of operational-search activities 52.     Information about the facilities used in covert operational-search activities, the methods employed, the officials involved and the data thereby 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 the State Secrets Act (Law no. 5485-I of 21 July 1993)). 53.     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). 54 .     Interior Ministry Order no. 336 of 13   May 1998, in force until 17   April 2007, provided that if the data collected in the course of operational-search activities contained information that could serve as a basis for opening a criminal case or could be used as evidence in criminal proceedings, that information was to be sent to the competent investigating authorities or to a court (§ 2). The transmitted data should be capable of meeting the procedural requirements of admissibility of evidence. The data transmitted should permit (a) the establishment of the circumstances relevant to the criminal case; (b) the establishment of the source of the transmitted data; and (c) the verification of its admissibility at the trial (§ 7). The data were to be transmitted in accordance with the special procedure for handling classified information, unless the State agency performing operational-search activities had decided to declassify them (§ 9). 55 .     On 17   April 2007 Order no. 336 was replaced by Order no. 9407, which remained in force until 27 September 2013 and contained in substance the same provisions. However, by contrast to Order no. 336, Order no. 9407 explicitly provided that if the transmitted data had been obtained as a result of operational-search measures involving interception of communications or inspection of the home, they had be sent to the investigating or prosecuting authorities together with the judicial decision authorising those measures (§ 13). On 27 September 2013 Order no. 9407 was replaced by Order no. 30544, which reiterates the same requirements for transmitted data as those in Order no. 9407. 56.     The Code of Criminal Procedure (hereafter “the CCrP”) prohibits the use in evidence of 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 is inadmissible. Inadmissible evidence has 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 has 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). 57.     In its decision of 15 July 2008 (cited in paragraph 51 above), the Constitutional Court held that the statutory requirement contained in section   12(3) of the OSAA – that the judicial decision authorising operational-search activities had to be held in the exclusive possession of the State agency performing the operational-search activities – did not prevent the inclusion of such judicial authorisation in the criminal case file. If a copy of the judicial authorisation was not included in the case file, the data obtained as a result of operational-search measures involving interception of communications or inspection of the home could not be used as evidence in criminal proceedings. C.     Judicial review 1.     General provisions on judicial review of interception of communications, as established by the OSAA 58 .     A person claiming that his or her rights have been or are being violated by actions of a State official performing operational-search activities may complain about such actions to the official’s superior, a prosecutor or a court. If the person’s rights were violated in the course of operational-search activities by a State official, the official’s superior, a prosecutor or a court must take measures to remedy the violation and compensate for any damage caused (section 5(3) and (9) of the OSAA). 59 .     If a person was refused access to information about the data collected about him or her in the course of operational-search activities, he or she is entitled to know the reasons for the refusal of access and may appeal against the refusal to a court. The burden of proof is on the law ‑ enforcement authorities to show that the refusal of access is justified. To ensure a full and thorough judicial examination, the law-enforcement agency responsible for the operational-search activities must produce, at the judge’s request, operational-search material containing information about the data to which access was refused, with the exception of material containing information about undercover agents or police informers. If the court finds that the refusal to grant access was unjustified, it may compel the law-enforcement agency to disclose the material to the person concerned (section 5(4 to 6) of the OSAA). 60 .     In its decision of 14 July 1998 (cited in paragraph 50 above) the Constitutional Court noted that a person who had learned that he or she had been subjected to operational-search activities and believed that the actions of State officials had violated his or her rights was entitled, under section 5 of the OSAA, to challenge before a court the actions of the authorities performing the operational-search activities and the measures applied to them, including in those cases where they had been authorised by a court. 61.     At the material time a person wishing to complain of the interception of his or her communications could lodge a judicial review complaint under either Article 125 of the CCrP or Chapter 25 of the Code of Civil Procedure (hereafter “the CCP”) and the Judicial Review Act (replaced, as from 15   September 2015, by the Code of Administrative Procedure). 2.     Judicial review complaint under Article 125 of the CCrP 62 .     In its Ruling no. 1 of 10 February 2009, the Plenary Supreme Court held that decisions or actions of officials or State agencies conducting operational-search activities at the request of an investigator could be challenged in accordance with the procedure prescribed by Article 125 of the CCrP (paragraph 4 of Ruling no. 1). Complaints lodged under that Article may be examined only while the criminal investigation is pending. If the case has already been transmitted to a court for trial, the judge declares the complaint inadmissible and explains to the complainant that he or she may raise the complaints before the relevant trial court (paragraph 9 of Ruling no. 1). 63 .     Article 125 of the CCrP provides for the judicial review of decisions and acts or failures to act by an investigator or a prosecutor which are capable of adversely affecting the constitutional rights or freedoms of the participants to criminal proceedings. The lodging of a complaint does not suspend the challenged decision or act, unless the investigator, the prosecutor, or the court decides otherwise. The court must examine the complaint within five days. The complainant, his counsel, the investigator and the prosecutor are entitled to attend the hearing. The complainant must substantiate his complaint (Article 125 §§ 1-4 of the CCrP). 64.     Participants in the hearing are entitled to study all the material submitted to the court and to submit additional material relevant to the complaint. The disclosure of criminal-case material is permissible only if it is not contrary to the interests of the investigation and does not breach the rights of the participants in the criminal proceedings. The judge may request the parties to produce the material which served as a basis for the contested decision or any other relevant material (paragraph 12 of Plenary Supreme Court Ruling no. 1 of 10 February 2009). 65 .     Following the examination of the complaint, the court either declares the challenged decision, act or failure to act unlawful or insufficiently well   reasoned (“ необоснованный ”) and instructs the responsible official to rectify the indicated shortcoming, or dismisses the complaint (Article 125 §   5 of the CCrP). When instructing the official to rectify the indicated shortcoming, the court may not indicate any specific measures to be taken by the official or annul or order that the official annul the decision found to be unlawful or insufficiently well founded (paragraph 21 of Ruling no. 1 of 10 February 2009 of the Plenary Supreme Court of the Russian Federation). 3.     Judicial review complaint under Chapter 25 of the CCP and the Judicial Review Act 66 .     Plenary Supreme Court Ruling no. 2 of 10 February 2009 provides that complaints about decisions and acts of officials or agencies performing operational-search activities that may not be challenged in criminal proceedings, as well as complaints about refusal of access to information about the data collected in the course of operational-search activities, may be examined in accordance with the procedure established by Chapter 25 of the CCP (paragraph 7 of Ruling no. 2). 67.     Chapter 25 of the CCP, in force until 15 September 2015, set out the procedure for examining complaints against decisions and acts of officials violating citizens’ rights and freedoms, which was further detailed in the Judicial Review Act (Law no. 4866-1 of 27 April 1993 on the judicial review of decisions and acts violating citizens’ rights and freedoms). 68.     Chapter 25 of the CCP and the Judicial Review Act both provided that a citizen could lodge a complaint before a court about an act or decision by any State or municipal authority or official if he considered that the act or decision had violated his rights and freedoms (Article 254 of the CCP and section 1 of the Judicial Review Act). The complaint might concern any decision, act or omission which had violated the citizen’s rights or freedoms, had impeded the exercise of rights or freedoms, or had imposed a duty or liability on him (Article 255 of the CCP and section   2 of the Judicial Review Act). 69 .     The complaint had to be lodged with a court of general jurisdiction within three months of the date on which the complainant had learnt of the breach of his rights. The time-limit might be extended for valid reasons (Article 254 of the CCP and sections 4 and 5 of the Judicial Review Act). The complaint had to be examined within ten days (Article 257 of the CCP). 70 .     When examining the case the court had to ascertain: whether the complainant had complied with the time-limit for lodging a complaint and whether the contested decision, act or omission had been lawful and justified (paragraph 22 of Plenary Supreme Court Ruling no. 2). In particular, the court had to examine: (a) whether the State or municipal authority or official had had the competence to make the contested decision or to perform the contested act or omission – if the law conferred discretionary powers on the State or municipal authority or official, the court had no competence to examine the reasonableness (“ целесообразность” ) of their decisions, acts or omissions; (b) whether the procedure prescribed by law had been complied with – only serious breaches of procedure could render the contested decision, act or omission unlawful; and (c) whether the contents of the contested decision, act or omission met the requirements of law. The contested decision, act or omission was to be declared unlawful if one of the above conditions had not been complied with (paragraph 25 of Ruling no. 2). 71 .     The burden of proof as to the lawfulness of the contested decision, act or omission lay with the authority or official concerned. The complainant, however, had to prove that his rights and freedoms had been breached by the contested decision, act or omission (section 6 of the Judicial Review Act and paragraph 20 of Plenary Supreme Court Ruling no.   2). 72 .     The court allowed the complaint if it had been established that the contested decision, act or omission had breached the complainant’s rights or freedoms and had been unlawful (paragraph 28 of Plenary Supreme Court Ruling no.   2). In that case it overturned the contested decision or act and required the authority or official to remedy in full the breach of the citizen’s rights. (Article 258 § 1 of the CCP and section 7 of the Judicial Review Act). The court could determine a time-limit for remedying the violation and/or the specific steps which needed to be taken to remedy the violation in full (paragraph 28 of Plenary Supreme Court Ruling no. 2). The claimant could then claim compensation in respect of pecuniary and non-pecuniary damage in separate civil proceedings (section 7 of the Judicial Review Act). 73 .     The court rejected the complaint if it found that the challenged act or decision had been taken by a competent authority or official, had been lawful, and had not breached the complainant’s rights (Article 258 § 4 of the CCP). 74 .     A party to the proceedings could lodge an appeal with a higher court (Article 336 of the CCP as in force until 1 January 2012; Article 320 of the CCP as in force after 1 January 2012). The appeal decision entered into force on the day it was delivered (Article 367 of the CCP as in force until 1   January 2012; Article 329 § 5 as in force after 1 January 2012). 75.     The CCP provided that a judicial decision allowing a complaint and requiring the relevant authority or official to remedy the breach of the citizen’s rights had to be dispatched to the head of the authority concerned, to the official concerned or to his or her superiors, within three days of its entry into force (Article 258 § 2 of the CCP). The Judicial Review Act required that the judicial decision be dispatched within ten days of its entry into force (section 8). The court and the complainant had to be notified of the enforcement of the decision no later than one month after its receipt (Article   258 § 3 of the CCP and section 8 of the Judicial Review Act). 76.     On 15 September 2015 Chapter 25 of the CCP and the Judicial Review Act were repealed and replaced by the Code of Administrative Procedure (Law no. 21-FZ of 8 March 2015, hereafter “the CAP”), which entered into force on that date. The CAP confirmed in substance and expounded the provisions of Chapter 25 of the CCP and the Judicial Review Act. THE LAW I.     JOINDER OF THE APPLICATIONS 77.     In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their factual and legal similarities. II.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 78.     The applicants complained that the interception of their telephone communications and, for one of the applicants, the covert filming of his meetings with acquaintances in a rented flat, had violated their right to respect for their private life, correspondence and home. They relied on Article 8 of the Convention, which reads as follows: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A.     Admissibility 1.     Submissions by the parties (a)     The Government 79.     The Government submitted that the applicants had not exhausted domestic remedies. Relying on the Constitutional Court’s Ruling of 14   July 1998 (see paragraph 60 above), they submitted that a person who learned that he or she had been subjected to operational-search activities and believed that the actions of State officials ­ – including their refusal to grant access to information about the data collected – had violated his or her rights was entitled to complain to a court under section 5 of the OSAA (see paragraphs 58 and 59 above). As explained by the Plenary Supreme Court (see paragraph 66 above), such complaints were to be examined in accordance with the procedure set out in Chapter 25 of the CCP and the Judicial Review Act. 80.     The Government further submitted that the fact that the person concerned did not possess a copy of the interception authorisation did not prevent him or her from lodging such a complaint, because the relevant court could request a copy of the interception authorisation from the competent authorities (they referred to the Constitutional Court’s ruling of 15 July 2008 concerning the possibility of applying for a supervisory review of the judicial decision authorising interception of communications, cited in paragraph 51 above). In any event, the proper procedure was to lodge a complaint under section 5 of the OSAA about the actions of State officials who had carried out the interception, rather than to appeal against the interception authorisation itself. 81.     The Government further submitted that instead of using the above effective remedy, Mr Zubkov and Mr Ippolitov (applications nos. 29431/05 and 7070/06) had chosen to raise the issue of covert surveillance in the criminal proceedings against them by contesting the admissibility of the audio and video recordings as evidence. The Government considered that contesting the admissibility of evidence in the framework of criminal proceedings could not be regarded as an effective remedy in respect of a complaint under Article 8. The aim of such a remedy was to exclude unlawfully obtained evidence from the list of evidence examined during the trial. It could therefore provide appropriate redress for a complaint under Article 6, but not for a complaint under Article 8. Indeed, the purpose of the criminal proceedings was to establish whether the defendant was innocent or guilty of the criminal charges levelled against him or her, rather than to attribute responsibility for the alleged violations of his or her right to respect for private life, home or correspondence. The remedy used by Mr Gorbunov (application no.   5402/07) had also been ineffective because he had appealed against the refusal to give him a copy of the judicial authorisation, rather than against the actions of the State officials who had intercepted his communications. 82.     The Government submitted in their further observations that Mr   Gorbunov had moreover not complied with the six-month rule. The application form in which he had raised the complaint under Article 8 for the first time had been signed on 3   October 2007, the last day of the six ‑ month time-limit. There was, however, no evidence that it had been dispatched on that date. The postal receipt of 3 October 2007 produced by the applicant’s representative did not prove that it concerned precisely that application form. It could have concerned a letter sent by the representative to the Court in connection with another pending case. The Government therefore considered that the date on which the Court had received the application form should be taken as the date of introduction, with the consequence that the applicant had missed the six-month time-limit. (b)     The applicants 83.     The applicants submitted that the remedy suggested by the Government had been ineffective. Mr Zubkov and Mr Ippolitov argued that they had raised their complaints about unlawful covert surveillance in the criminal proceedings against them, both before the trial court and on appeal. They therefore considered that they had exhausted the domestic remedies. 84.     Mr Gorbunov submitted that he had complained to a court that both the refusal to give him a copy of the judicial authorisation and the interception itself had been unlawful. He conceded that his complaint about the unlawfulness of the interception had been sparsely reasoned. He had been unable, however, to advance more detailed arguments without knowing the contents of the judicial authorisation, that is without having any possibility of ascertaining whether the interception authorisation had been issued by a competent court in accordance with the procedure prescribed by law, whether it had been based on relevant and sufficient reasons or whether the requirements of the judicial authorisation, for example the authorised duration of the interception, had been complied with at the implementation stage. The applicant further argued that he had preferred the procedure under Article 125 of the CCrP to the procedure under Chapter 25 of the CCP and that the Plenary Supreme Court had explained that it was the correct avenue in cases where criminal proceedings were pending (see paragraph 62 above). Given that his complaint under Article 125 of the CCrP had been rejected, a similar complaint under Chapter 25 of the CCP had no prospects of success. 2.     The Court’s assessment (a)     Exhaustion of domestic remedies 85.     The rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13 of the Convention ‑ with which it has close affinity – that there is an effective remedy available in the domestic system in respect of the alleged breach, whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Akdivar and Others v. Turkey , 16   September 1996, § 65, Reports of Judgments and Decisions 1996 ‑ IV). 86.     Under Article 35 an applicant should normally have recourse to remedies which are available and sufficient to afford redress in respect of the breaches alleged. There is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others , cited above, §§   66 and 67). 87.     In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there exis