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Russia: No Warrant Needed for Chat and Email Eavesdropping

(Mar. 29, 2018) In a recently issued ruling, the Constitutional Court of the Russian Federation confirmed the constitutionality of the current criminal procedural order under which investigators do not need to obtain a court warrant to access the content of electronic communications found on telephones, tablets, and personal computers of persons investigated at the scene of a crime or at the place where investigative activities are conducted. (Ruling No. 189/O2018 of the Russian Federation Constitutional Court on Refusing to Consider Dmitry Prozorovsky’s Petition Concerning the Violation of His Constitutional Rights by Select Provisions of the Criminal Procedural Code, Jan. 25, 2018 (in Russian).) The Court ruling says that “the review and analysis of information located in the electronic memory of devices seized during the course of investigative activities do not justify the issuance of a special judicial decision.” (Id. ¶ 2.3 (translation by author).) However, investigators’ actions can be challenged in a court separately if an individual who is the subject of the investigation disagrees with their validity. (Id.)

The petitioner, who is serving a prison sentence, argued the constitutionality of the existing procedure, which allows police during preliminary investigations to freely examine seized electronic devices and obtain information about communications made by the users of these devices, including users’ contacts, texts of messages exchanged, and other information. He claimed that provisions of the Russian Criminal Procedural Code granting these powers to the investigators violated his constitutional rights to privacy and secrecy of mail and other forms of communications. During his trial, the petitioner requested that content of the messages found by investigators on his electronic devices and used as evidence to prove his guilt be recognized as inadmissible; however, the trial and appeal courts declined to do so, citing the existing law. (Id. ¶ 1.2.)

The Constitutional Court confirmed the position of lower courts and did not find any constitutional violations in the existing procedure, which it described as follows:

Investigators shall review all relevant items and examine other circumstances that are important for the criminal case. This review can be conducted at the place of investigative activities before the criminal case is formally initiated. If the review requires more time or cannot be conducted at the crime scene, the items subject to review should be seized, sealed, and used for retrieval of crime-related information later. Such items may be subject to forensic analysis. (Id. ¶ 2.2 (translation by author).)

Russian legal analysts believe that this court decision opens the opportunity for investigators to access personal communications of suspects without restrictions. (Alisa Foks, Investigators Can Read Messages on Phones and Tablets Without Judicial Permission, RAPSINEWS.RU (Feb. 14, 2018) (in Russian).)