ECHR: Illegal Surveillance
17-12-2015, 14:13  / ნანახია: 3287

Strasbourg Observer


Case of Roman Zakharov v. Russia: The Strasbourg follow up to the Luxembourg Court’s Schrems judgment.


By Paul De Hert and Pedro Cristobal Bocos (Vrije Universiteit Brussels)



Combining Zakharov and Schrems

The Zakharov case guarantees the rights to the citizens of Europe. First, Europeans have the rights to defend their rights when they consider that they have been violated by the state and the state should always guarantee a way to lodge this complaint.

Second, the Zakharov case is very relevant as the Court has shown its willingness not only in defence of Article 8, but also because the Court has raised questions about the validity of a whole surveillance system. Indeed, the four principles created by the court referring to the circumstances in which authorities are empowered to resort to secret surveillance measures, the duration of such measures, the procedures for authorising interception as well as for storing and destroying the intercepted data and the supervision of the interception, could be used as a blueprint to analyse if other systems respect fundamental values.

In the framework of a connected world with data flows going in and out of Europe, and with European legislation making difficult data transfers to third parties that do not respect the European Charter of Fundamental Rights, this case could become another problem for companies based in China, Russia and the USA after the invalidation of the Safe Harbour decision. Indeed, combining the principles of the Zakharov and Schrems cases, it seems difficult to find a third party that could enjoy the advantages of being chosen as a partner by the European Commission through a decision for data transfers. Even more relevant for European citizens, we may argue that the Court will start to scrutinize the surveillance practices and legislation of European states, as cases against them come before it. Moreover, it will be necessary to see how the Court will evaluate systems of bulk collection and mass surveillance conducted by the involvement of third states.

The timing of the case is also significant as it comes amid recent significant actions in the legal world. Indeed, Zakharov was ruled as the British draft Investigatory Powers Bill was published. It follows the ECJ’s ruling in Schrems, with Davis (along with the Swedish Tele2 reference) now pending before it. Moreover, the ECtHR noted the Digital Rights Ireland case in its summary of applicable law. We will need to wait for the Court’s decisions to get answers to our questions."

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