Russia’s Response in the Telegram Case: Decrypting Messengers and Privacy Rights
Russian authorities have responded to questions from the European Court of Human Rights (ECHR) regarding the Telegram case. To recap, in 2018, “Roskomsvoboda” filed a class action lawsuit against the government’s blocking of Telegram, which eventually reached the ECHR (“Podchasov v. Russia”). In April 2020, Roskomnadzor lifted the ban on the messenger. However, the legal proceedings continue, as the organization seeks a judicial stance on the crucial issue of messenger encryption as the most reliable way to protect privacy.
Questions from the ECHR
- Was there a violation of the applicant’s right to respect for private life and correspondence, as guaranteed by Article 8 of the European Convention on Human Rights?
- Did the applicant have access to effective legal remedies?
Russian Authorities’ Position
In response to the first question, Russian authorities referred to the “Countering Terrorism” law, stating that the intervention was based on legal grounds. According to their response, this intervention was “based on provisions of national legislation that are sufficiently clear and predictable in their wording and interpretation.”
“As expected, the Russian authorities cited a decision by the Supreme Court of Russia, which concluded that information required to decode encrypted messages from a messenger does not constitute restricted-access information or correspondence privacy. Therefore, a court order is not required to request it, and there is no violation of Article 8 of the Convention. We categorically disagree with this legal interpretation of decryption keys,” explained Ekaterina Abashina, media lawyer and attorney for Roskomsvoboda.
On the Availability of Legal Remedies
In response to the second question, the state claimed that effective remedies were available to the applicants. They also argued that “Article 13 of the Convention does not require remedies under national law for every alleged violation of the Convention,” unless there is a “reasoned complaint” of a violation. In the state’s view, there was no such complaint, as the applicant “did not provide evidence of a ‘reasonable likelihood’ that he was of interest to security agencies.”
However, “the applicants’ administrative claim was simply not considered on its merits, so there was no effective remedy for protecting their rights,” Abashina countered.
She also added that “after receiving the Russian authorities’ memorandum on the complaint, the applicant has the right to submit written objections.”
International Organizations Join the Case
Earlier, the leading British privacy organization Privacy International requested to join the ECHR proceedings as amicus curiae (“friend of the court”). The European Institute of Information Society had also joined the lawsuit. These organizations independently submit requests to participate in the process. If the ECHR grants permission, they act as experts, explaining the context of the case, how technologies are used, and the challenges users face. Their positions become part of the case materials. The Court then reviews these materials and the positions of both parties before making its legal conclusions.
Read more about why Roskomsvoboda defends the right to privacy here. For information on whether it makes sense to appeal to the ECHR after constitutional amendments, see here.
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