European Court of Human Rights

 

 

FOURTH SECTION

 

 

 

 

 

 

 

CASE OF PREZHDAROVI v. BULGARIA

 

(Application no. 8429/05)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

30 September 2014

 

 

 

 

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case ofPrezhdarovi v. Bulgaria,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

         Ineta Ziemele, President,
         Päivi Hirvelä,
         Ledi Bianku,
         Nona Tsotsoria,
         Zdravka Kalaydjieva,
         Paul Mahoney,
         Faris Vehabović, judges,
andFatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 9 September 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 8429/05) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Rumen Trifonov Prezhdarov, a Bulgarian national, and Mrs Anna Aleksandrovna Prezhdarova, a Russian national, (“the applicants”), on 7 March 2005.

2.  The Bulgarian Government (“the Government”) were represented by their Agent, Mr V. Obretenov, of the Ministry of Justice.

3.  The Russian Government, having been informed of their right to intervene in the case (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court), did not avail themselves of that opportunity.

4.  The applicants alleged, in particular, that the search of their computer club and the seizure and retention of five computers had been unlawful and unnecessary. They also complainedof a lack of domestic remedies in this connection.

5.  On 31 May 2011the application was declared partly inadmissible and the complaints concerning the search, seizure and retention ofthe computers as well as the lack of domestic remedies werecommunicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  Background

6.  The applicants were born in 1968 and 1965 respectively and live in Pazardzhik. They are spouses.

7.  On 20 August 2002 the first applicant, as a sole trader, took out a bank loan in order to purchase computers and to set up a computer club. The computer club was situated in a garage owned by the applicants. The second applicant assisted the first applicant in running the club and replaced him when he was absent.

8.  When he started his business, the first applicant purchased five computers and several computer games, which he installed on the computers. His customers were able to use the computers for one Bulgarian lev (BGN) per hour.

9.  As the first applicant was renting the computers to his clients, he was obliged to pay the necessary licensing fees to the distributors of the companies that owned the copyright of the products. However, in 2004 the first applicant failed to renew his contracts with the distributors.

10.  On 3 April 2004 the police conducted a check on the applicants’premises and warned the first applicant to abstain from illegally reproducing and distributing software.

11.  On 9 November 2004 the director of the local sanitation department at the Ministry of Health ordered that the computer club be closed down for health reasons.

B.  The search and seizure of the computers

12.  On 31 January 2005 Mr V.E., a manager of a company that distributed computer games, lodged a complaint with the district prosecutor in Pazardzhik. Mr V.E. stated that he had visited the applicants’computer club on several occasions in the period between September and December 2004. He claimed to have noticed that despite their lack of a software license for reproduction and distribution, the applicants had installed certain types of games on the computers and were renting them to their clients. Mr V.E. mentioned specifically some of the games. He also claimed that the applicants had visited his office several times and had been aware of the requirements concerning reproduction and distribution of computer games. Lastly, he claimed that he had warned the applicants about the possible sanctions but had received only threats in response, especially from the second applicant.

13.  In an order of 2 February 2005 the district prosecutor noted that a complaint had been lodged by Mr V.E.alleging that a crime had been committed under Article 172a§ 2 of the Criminal Codeof 1968 (see paragraph 32 below). He further observed that there was insufficient information to justify the institution of criminal proceedings. Therefore, relying on section 119(1)(3) of the Judiciary Act 1994 (see paragraph 26 below), he ordered the police to conduct an inquiry into the computer club in order to collect more information as to whether a crime had been committed under Article 172a § 2 of the Criminal Code 1968. The prosecutor stated that when examining the computer club, in the event that the police officers established that software was being used illegally, they should take measures to secure the necessary evidence, including an on‑the‑spot inspection and search and seizure of the computers.

14.  In executing the prosecutor’s order, on 14 February 2005 the police authorities drew up an action plan. A police officer with technological expertise would compare the software installed on the computers with the purchased software. In the event that discrepancies were found, the police would conduct a search and seizure. The operation was planned for 21 February2005.

15.  At approximately 3.30 p.m. on 21 February 2005 the police, including a police investigator (дознател), arrived at the computer club. The applicants claimed that at that time the computer club had been closed to the public following the order of the Ministry of Health (see paragraph 11 above). They submitted that they had been at the club with some friends and that the cash till had been on because the second applicant had just finished a typewriting job and had been paid for it.

16.  The police officers noted that the computers were running and that there were people in the club. They explained the aim of the inspection. It appears that the first applicant objected to the possible search and seizure, stating that the police did not have a judicial warrant, and asked for permission to contact a lawyer. The police apparently briefly pointed to the prosecutor’s order of 2February 2005. The first applicant was allowed to contact his lawyer but, according to the applicants’ submissions, the police refused to wait for the lawyer’s arrival.

17.  The police inspected the receipts from the club’s cash till and the daily sales record and concluded that the applicants had received money that day, most probably for providing commercial services. The police then inspected the applicants’ five computers and found that a number of computer games had been installed on them. The first applicant was invited to present documents, such as purchase invoices or any other evidence of his title to the games. As he failed to do so, the police seized thecomputers. The search-and-seizure operation ended at 6 p.m.

18.  The search-and-seizure operation was carried out in the presence of two certifying witnesses. The police drew up a report containing an inventory of the seized items, namely the computers and their content, which consisted of computer programs, computer games and films. The report was signed without comment by the certifying witnesses. The first applicant refused to comment on the report or to sign it.

19.  On 22 February 2005 the police investigator sent a letter to the district prosecutor informing the prosecutor of the results of the operation. She noted that following the search-and-seizure operation,criminal proceedings (a police investigation) had been instituted against the first applicant for illegal reproduction and distribution of software.

20.  On the same day, at the request of the police investigator, a District Court judge approved the search-and-seizure operation on the basis of Article 135 §2 of the Code of Criminal Procedure 1974 (“the 1974 Code”). The judge described factually the course of the search-and-seizure operation and briefly cited the text of Article 135 § 2, stressing that there had been pressing circumstances and that an immediate search and seizure had been the only means by which the collection and preservation of the necessary evidence could be undertaken. The decision was sent to the police in order to be enclosed with the case file as an integral part of the search-and-seizure record.

21.  On 23 February 2005 the first applicantlodged an application with the District Court,requesting the court not to approve the search‑and‑seizure record andarguing that a search and seizure had not been the only means by which the preservation of evidence could have been undertaken and that there had not been pressing circumstances. The first applicant also claimed that the computers contained letters as well as personal information about friends and clients. On 2 March 2005 the application was returned to the applicant as inadmissible as the search and seizure had already been approved by a court decision, which was not subject to appeal.

C.  Retention of the computers

22.  On 25 February 2005 both applicants submitted a request to the prosecutor for the return of the computers. They maintained that the computers contained private correspondence and personal information about themselves and their clients, and were also necessary for their other professional activities, namely providing typewriting services to the public. On 14 March 2005 the district prosecutor refused to return the computers.

23.  The first applicant sought judicial review, arguing again that the computers contained personal information and correspondence with different State entities. In a decision of 15 April 2005 the Pazardzhik District Court upheld the prosecutor’s order. It held that the computers were the subject of an expert examination and were necessary for the investigation. It found irrelevant the assertion that the computers contained personal information.

24.  In June 2005 the first applicant again sought the return of the computers. His request was rejected by the prosecutor and the court on 24 June and 15 July 2005 respectively on the grounds that the computers were necessary for the investigation. The applicant’s assertions that the computers contained personal information and were necessary for his wife’s business were not discussed. In October 2005 the applicant submitted the same request to the prosecutor, who again rejected it. The applicant submitted that the prosecutor had never forwarded his ensuing appeal against the rejection to the court.

D.  The criminal proceedings against the first applicant

25.  On 8 November 2005 the first applicant was charged, inter alia, with the unlawful distribution of computer programs, computer games and films. In a final judgment of 22 December 2008 the Supreme Court of Cassation upheld the first applicant’s conviction. It held that the first applicant had lawfully acquired title to the computer games but that he had been distributing them illegally by renting the games to his clients. It also held that the first applicant had been illegally reproducing computer programs and films. The court found that the first applicant’s conduct had led to significant damage. He was sentenced to one year and six months’ imprisonment suspended for three years, and ordered to pay a fine in the amount of BGN 4,000. The computers were confiscated.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  Search and seizure

26.  At the relevant time, if there was some information that a crime had been committed but insufficient evidence to initiate a preliminary investigation, a prosecutor could conduct an inquiry and order the police to undertake certain measures,such as to request documents or objects from individuals or State entities(section 119(1)(3) of the Judiciary Act 1994). The inquiry was not part of the criminal proceedings and its aim was to find sufficient information that a crime had been committed (sections 26-31 of Instruction No. 1 of 22 March 2004 about the work of and cooperation between the investigative authorities).

27.  As for search and seizure within the framework of a preliminary investigation (as part of criminal proceedings), at the relevant time Article 134 §1 of the Code of Criminal Procedure 1974 (“the 1974 Code”) provided that if there were sufficient grounds to believe that certain premises contained objects or documents which might be relevant to the criminal investigation, the investigative authorities could carry out a search‑and-seizure operation there. Under Article 135 §1 of the 1974 Code, during the preliminary investigation a search-and-seizure operation could only be carried out pursuant to a warrant issued by a judge of the competent first-instance court. The warrant was to be issued in ex parte proceedings, without notification of or participation by the individuals concerned. An exception to the warrant requirement was only possible in pressing circumstances, in which case a record of the search had to be produced for approval before a judge within twenty-four hours (Article 135 §2 of the 1974 Code). If search and seizure concerned computer systems and programs, it had to be carried out in the presence of a person with technical expertise (Article 136 § 5 of the 1974 Code). The authorities could not undertake measures that went beyond the aim of the search-and-seizure operation (Article 137§ 4 of the 1974 Code). The seizure of computer information was its recording on paper or by other means (Article 137 § 7 of the 1974 Code).Similar provisions are contained in the Code of Criminal Procedure 2005 (Articles 159-163).

28.  Article 191 § 1 of the 1974 Codeprovided that in certain cases envisaged by the law, the police could conduct an immediate search‑and‑seizure operation if that would be the only possibility of collecting and securing evidence. In this case, the relevant prosecutor was required to be informed within twenty-four hours. Criminal proceedings were considered as instituted following the drawing up of the searchrecord (Article 191 § 2 of the 1974 Code). Similar provisions are contained in the Judiciary Act 2007 (section 145) and the Code of Criminal Procedure 2005 (Article212 § 2).

B.  Retention of physical evidence during criminal proceedings

29.  Pursuant to the relevant provisions as in force at the material time, physical evidence was kept by the authorities for the duration of the criminal proceedings (Article 108 §1 of the 1974 Code). Chattels collected as physical evidence could be returned to their owners before the termination of criminal proceedings on condition that their return would not hinder the establishment of the facts in the case. A request for their return was to be submitted to the prosecutor. In the event that the prosecutor refused to return them, the owner had a right to appeal before the court,which then examined the issue in camera (Article 108 §2 and §4 of the 1974 Code). The 2005 Code of Criminal Procedure contains almost identical provisions (Article 111§§1-4).

C.  The State and Municipalities Responsibility for Damage Act 1988 (“the 1988 Act”)

30.  Section 1(1) of the 1988 Act, as in force at the material time, provided that the State was liable for damage suffered by private individuals as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of administrative action. According to the Supreme Court of Cassation’s case‑law, the actions of the investigative and the prosecuting authorities in the context of a criminal investigation do not amount to administrative action and those authorities are therefore not liable under section 1 of the Act (тълк. реш. № 3 от 22.04.2005 г. по тълк.д. № 3/2004 г., ОСГК на ВКС). According to the Supreme Administrative Court’s case-law, a search-and-seizure record is not an administrative act and cannot be grounds for seeking damages under the 1988 Act (опр. № 1270 от 1.02.2010 г. по адм.д. №63/2010 г., ВАС).

31.  Under section 2 of the 1988 Act, as in force at the relevant time, the criminal investigation and prosecuting authorities and the courts were liable in the following circumstances: unlawful pre-trial detention; charging or conviction followed by discontinuance of the criminal proceedings or acquittal; compulsory admission to hospital or other coercive measures ordered by a court which were later set aside as unlawful; and execution of a sentence exceeding the initial length or amount. This exhaustively enumerated list did not include unlawful search and seizure by the judicial authorities.

D.  Illegal reproduction and distribution of computer programs

32.  Article 172a § 2 of the Criminal Code 1968, as in force at the material time, provided for a punishment of up to three years’ imprisonment and a fine from BGN 1,000 to BGN 3,000 for an individual who had reproduced or distributed a video record or a computer program without the legal consent of the copyright owner.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

33.  The applicants complained, relying on Article 8, that the search in their garage and the seizure of five computers had not been conducted in accordance with the law. They complained, in particular, that private documents contained in the seized computers, which were unrelated to the criminal proceedings against the first applicant, had been caught up in the search-and-seizure operation. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, they further complained that the authorities had retained the computers during the criminal proceedings against the first applicant, despite the fact that they contained personal information and that the second applicant had been using them for her business activities. They also pointed out that on one occasion the prosecutor had failed to send the applicants’ appeal in this respect to the court.

34.  The Court considers that the applicants’ complaints fall to be examined solely under Article 8, which provides as follows:

“1.  Everyone has the right to respect for his private ... life....

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

35.  The Government stated that the second applicant could not be considered a victim of the alleged violation of Article 8 because the computers belonged not to her but solely to the first applicant. The Government further submitted that the first applicant had failed to exhaust the relevant domestic remedies because he had not raised his objections to the search-and-seizure operation in the search-and-seizure record (see paragraph 18 above).

36.  The applicants responded that the second applicant was a victim of the alleged violations, and that the Government’s objection in this connection was ill-founded. As for the first applicant’s failure to write down his arguments against the measure, they stated that he had been unable to react immediately to the operation. In any event, he had tried to submit his objections to the judge who examined the record, but to no avail.

37.  The Court considers that the questions of the second applicant’s victim status and of the exhaustion of domestic remedies are closely related to the merits of the complaint, and therefore joins the Government’s objections to the merits.

38.  The Court further considers that the complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

39.  The Government submitted that the interference complained of was justified under Article 8 of the Convention. In their view, it was in accordance with the law and based on a reasonable suspicion that the first applicant had committed an offence, namely that he had been illegally distributing software. The first applicant had not been diligent in conducting his business, as was evident from the fact that he had already been warned by the police once and could have predicted the consequences of his behaviour. The Government went on to argue that the interference had the legitimate aim of prevention of crime and maintenance of fair competition. They claimed that the interference was also proportionate: the officers who had carried out the search and seizure had known where to search and what to search for, and the operation had been conducted in the presence of the applicants, a technician and two certifying witnesses. Also, the authorities had carefully listed the seized computers in the search-and-seizure record, retained the computers in accordance with the law and in connection with the ongoing criminal proceedings, and the content of the computers had not been made public. Furthermore, the approval of the record by the court had been an important safeguard and had served as a guarantee for the justification of the measure. Lastly, the Government pointed out that unlike the cases of Iliya Stefanov v. Bulgaria (no. 65755/01, 22 May 2008), Kopp v. Switzerland (25 March 1998, Reports of Judgments and Decisions 1998-II) and Heino v. Finland (no. 56720/09, 15 February 2011), the search-and-seizure operation had not touched upon any privileged material.

40.  The applicants argued that the interference had not been justified under Article 8 of the Convention. In particular, they stated that the prosecutor could have interviewed V.E. to verify his statements. They claimed that there had been no reasonable suspicion and therefore no basis for the search-and-seizure operation. In response to the Government’s assertion that the first applicant had already been warned by the police once, the applicants submitted that at that time they had presented all the necessary documents. In their view, the operation had been unlawful because the circumstances had not been pressing: the authorities had planned the operation carefully and could have sought judicial approval beforehand.The subsequent judicial review had been formalistic and had failed to provide any safeguards against abuse, and the applicants had been unable to present their arguments. Also, it had not been necessary for the authorities to seize the computers; they could have seized only the computer products by recording them on paper or by some other means. Lastly, the applicants asserted that the computers had been retained without due consideration of the fact that they had contained personal information.

2.  The Court’s assessment

a)  Whether there was an interference

41.  It has not been disputed between the parties that the search ofthe computer club and the seizure and retention of the computers allegedly containing personal information amounted to interference with the first applicant’s right to respect for his “private life” (see Funke v. France, 25 February 1993, § 48, Series A no. 256-A; Crémieux v. France, 25 February 1993, § 31, Series A no. 256-B; and Miailhe v. France (no. 1), 25 February 1993, § 28, Series A no. 256-C). The Court further notes that the second applicant worked at the club: assisting the first applicant, replacing him when he was absent and also providing typewriting services to the public through the use of the computers in the club. Those factual submissions by the applicants were not contested by the Government. Therefore the Court accepts that the second applicant could also claim to be a victim of the alleged violation of Article 8, and the Government’s objection in this respect must be rejected.

42.  The Court must therefore examine whether the interference with the applicants’ rights was in conformity with the requirements of the second paragraph of Article 8, in other words whether it was “in accordance with the law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve the aim or aims in question.

b)  Whether the interference was justified

43.  The Court notes that the expression “in accordance with the law”, within the meaning of Article 8 § 2 requires firstly that the impugned measure should have some basis in domestic law. Second, the domestic law must be accessible to the person concerned. Third, the person affected must be able, if need be with appropriate legal advice, to foresee the consequences of the domestic law for him, and fourth, the domestic law must be compatible with the rule of law (see, among many other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V; Liberty and Others v. the United Kingdom, no. 58243/00, § 59, 1 July 2008; and Sallinen and Others v. Finland, no. 50882/99, § 76, 27 September 2005).

44.  In the present case, assuming that the actions of the police at the applicants’ computer club on 21 February 2005 had some basis in domestic law because Article 191 § 1 of the 1974 Code provided that in certain circumstances the police could conduct search-and-seizure operations (see paragraph 28 above), the Court must examine whether that law was “compatible with the rule of law”. In the context of search and seizure, the domestic law must provide sufficient safeguards against arbitrary interference with Article 8 rights (seeCamenzind v. Switzerland, 16 December 1997, §45, Reports 1997-VIII, and Heino, cited above, §§ 40and 46).

45.  As stated above, Article 191 § 1 of the 1974 Code allowed the police to conduct an immediate search-and-seizure operation outside the criminal proceedings if that was the only possibility of collecting and securing evidence. The wording of that provision allowed the police authorities to carry out searches without a prior judicial warrantand essentially gave them the discretion to decide whether the circumstances were pressing. The Court, however,doubts whether the circumstances in the present case were really pressing, given that the prosecutor ordered the said operation three weeks before it was conducted. The authorities received information about the illegal distribution of computer products on 31 January, yet the operation was scheduled for 21 February 2005. Therefore the authorities had enough time to collect more information regarding the alleged criminal conduct, to open criminal proceedings and to submit a prior request to the court.

46.  The Court has considered that in such a situation, the absence of a prior judicial warrant may be counterbalanced by the availability of a retrospective judicial review (see Heino, cited above, § 45, andSmirnov v. Russia, no.71362/01, § 45, 7 June 2007). It reiterates in this respect that notwithstanding the margin of appreciation which the Court recognises the Contracting States have in this sphere, it must be particularly vigilant where, as in the present case, it appears that the authorities are empowered under national law to order and effect searches without a judicial warrant (see Heino, cited above, § 40).

47.  The Court thus needs to examine whether the post factum judicial review offered sufficient guarantees that the applicants’ right to respect for their private life was not breached. The Court notes at the outset that the relevant domestic law made no mention of the scope of the judicial examination. Therefore the Court turns to the reasoning offered by the domestic court when approving the operation. It notes in this connection that the court limited its reasoning to describing factually the course of the search-and-seizure operation and briefly citing the text of Article 135 § 2 of the 1974 Code, stressing that there had been pressing circumstances and that an immediate search and seizure had been the only means by which the collection and preservation of the necessary evidence could be undertaken. No additional reasoning as to the lawfulness or justification of the impugned measure was given (see the similar approach in Gutsanovi, cited above, § 223).

48.  The Government did not assert that the applicants had any other opportunities to have the lawfulness and the justification of the impugned measure reviewed by a court (see Gutsanovi, cited above, § 223).

49.  Furthermore, the Court notes that following the seizure,the applicants complained several times, assertingthat the computers contained personal information and requesting their return. The Court observes that the scope of a search-and-seizure operation is a relevant factor to be taken into account when deciding whether the impugned measure met the requirements of Article 8 (see Iliya Stefanov, cited above, § 38). The Court cannot speculate on the existence of personal information on the computers but notes that on no occasion did the domestic authorities take account of the applicants’complaint in this connection: the court that approved the measure did not consider the scope of the operation and did not make a distinction between information which had been necessary for the investigation and information which had not been relevant; during the investigation the applicants requested the return of the computers, arguing that they contained personal information, but neither the prosecutor nor the relevant courts scrutinised that assertion (see paragraphs 22-24 above). While the Court accepts that, as a matter of principle, the retention of the computers for the duration of the criminal proceedings pursues the legitimate aim of securing physical evidence in an ongoing criminal investigation (see, mutatis mutandis, Atanasov and Ovcharov v. Bulgaria, no. 61596/00, § 70, 17 January 2008), the lack of any consideration of the relevance of the seized information for the investigation and of the applicants’complaint regarding the personal character of some of the information stored on the computersrendered the judicial review formalistic and deprived the applicants of sufficient safeguards against abuse.

50.  In conclusion, the Court finds that the lack of clear rules regarding the scope of the judicial review in such a situation, combined with the lack of any meaningful review of the lawfulness of and the justification for the measure, rendered the post factum judicial review ineffective for the purposes of the protection of the applicants’ rights as guaranteed by Article 8 of the Convention. Moreover, while it is true, as the Government pointed out, that the applicants did not enter any objections in the search‑and-seizure record, such an omission on their part did not relieve the domestic court from its obligation to provide a meaningful judicial scrutiny of the search and seizure, especially when subsequently the applicants made numerous complaints concerning the personal character of parts of the retained information. Therefore the Government’s objection for non‑exhaustion of domestic remedies must be rejected.

51.  Bearing in mind the above, the Court is of the view that even assuming that there exists a general legal basis in Bulgarian law for the impugned measure, the applicants in the present case were not offered sufficient guarantees for their right to respect for their private life before or after the search-and-seizure operation (see Gutsanovi, cited above, § 226). In these circumstances the Court finds that the interference with the applicants’ right to respect for their private life was not “in accordance with the law” as required by Article 8 § 2 of the Convention. Consequently, the Court need not examine whether the impugned measure had a legitimate aim and was proportionate.

52.  Having considered all of the above, the Court concludes that there has been a violation of Article 8 of the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 13 IN RELATION TO ARTICLE 8 OF THE CONVENTION

53.  The applicants complained that they had been denied effective remedies for their complaints under Article 8 regarding, in particular, the search and seizure at the computer club and the retention of five computers. The applicants relied on Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

54.  The Government contested that argument. They stated that the search of the computer club and the seizure and retention of five computershad been subject to judicial scrutiny. The applicants submitted that the court’s review both of the search-and-seizure operation and of the retention of the computers could not be regarded as an effective remedy for the grievances raised under Article 8 because it had been very formalistic.

55.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

56.  Having regard to its findings under Article 8, the Court considers that it is not necessary to examine separately whether there has been an additional violation of Article 13 (see Heino, cited above, § 55).

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

57.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

58.  In respect of pecuniary damage, the applicants claimed 18,066 euros (EUR): EUR 4,000,which they had to returnto the bank (see paragraph 7 above); EUR 4,125, which was the value of the five computers; EUR 1,366, which was the value of the computer software; and EUR 8,575 in loss of profit.

59.  The first applicantclaimed a further EUR 15,000 and the second applicant claimed EUR 5,000 in respect ofnon-pecuniary damage.

60.  The Government contested the claims as exorbitant and speculative.

61.  Concerning the claim for pecuniary damage, the Court does not discern a sufficient causal link between the violation found and the pecuniary damage alleged. It therefore rejects this claim. Concerning the claim for non-pecuniary damage, the Court accepts that the applicants have suffered distress and frustration resulting from the manner in which the search and seizure were carried out. Ruling on an equitable basis, it awards jointly to the applicants the sum of EUR 3,000, plus any tax that may be chargeable.

B.  Costs and expenses

62.  The applicants also claimed EUR 800in lawyer’s fees for the first applicant’s representation before the domestic courts during the criminal proceedings against him and EUR 174.90 in postage and translation costs. In support of their claim they presented contracts for legal representation and receipts.

63.  The Government contested those claims as excessive.

64.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court considers that the amount claimed for lawyer’s fees in the domestic proceedings against the first applicant cannot be regarded as having been necessary to prevent or redress the violations found, andrejects this claim. As for the postage and translation expenses, regard being had to the documents produced, the Court considers that they have been actually and necessarily incurred and awards the applicant EUR 174.90 in that respect.

C.  Default interest

65.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1.  Joins to the merits the Government’s objections about the lack of victim status of the second applicant and of non-exhaustion of domestic remedies and declares, by a majority, the remainder of the application admissible;

 

2.  Holds, by six votes to one, that there has been a violation of Article 8 of the Conventionand dismisses in consequence the Government’s objections;

 

3.  Holds,unanimously,that there is no need to examine separately the complaint under Article 13 in relation to Article 8 of the Convention;

 

4.  Holds,by six votes to one,

(a)  that the respondent State is to pay jointly to the two applicants, within three months from the date on which the judgment becomes final in accordance with Article44§2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

(i)  EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 174.90 (one hundred and seventy-four euros and ninety cents), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

5.  Dismisses,unanimously,the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 30 September 2014, pursuant to Rule77§§2 and3 of the Rules of Court.

     Fatoş Aracı                                                                         Ineta Ziemele
Deputy Registrar                                                                        President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge F. Vehabović is annexed to this judgment.

I.Z.
F.A.

DISSENTING OPINION OF JUDGE VEHABOVIĆ

I regret that I have been unable to agree with my colleagues that there has been a violation of Article 8 of the Convention in the present case. I am not persuaded that there is sufficient factual grounding to hold that the applicant’s right to “home” and “private life”, in the terms of Article 8, has been violated.

When the first applicant (assisted by the second) opened an internet club in his garage, he rented computers to his clients and paid the necessary licensing fees to the distributors of the companies which owned the relevant copyrights until 2004, when he failed to renew his contracts with the distributors. On 3 April 2004 the police conducted a check on the applicants’ premises and warned the first applicant to abstain from illegally reproducing and distributing software. The applicant failed to abstain and continued to illegally reproduce and distribute software.

In consequence, the police conducted a search-and-seizure operation at the internet club. The police seized five computers containing illegally used software.

On 8 November 2005 the first applicant was charged, inter alia, with the unlawful distribution of computer programs, computer games and films. That judgment was upheld at final instance on 22 December 2008 by the Supreme Court of Cassation, which concluded that the first applicant had lawfully acquired title to the computer games but that he had been distributing them illegally by renting the games to his clients. It also held that the first applicant had been illegally reproducing computer programs and films. The court found that the first applicant’s conduct had resulted in significant damage. He was sentenced to one year and six months’ imprisonment, suspended for three years, and ordered to pay a fine of BGN 4,000. The computers were confiscated.

Both applicants requested on several occasion that the confiscated computers be returned, but their requests were dismissed.

In their complaints to this Court, the applicants relied on Article 8, alleging that the search of their garage and the seizure of five computers had not been conducted in accordance with the law and, in particular, that private documents contained in the seized computers, and which were unrelated to the criminal proceedings against the first applicant, had been caught up in the search-and-seizure operation.

I dissent from the majority for the following reasons:

Article 8 is not applicable to the facts of the case. The first applicant was charged and sentenced for illegal use of software installed on the confiscated computers. Both applicants submit that the confiscated computers contained personal data. It is well known that a computer is made up of hardware and software. Hardware without software is a merely a box and cannot contain personal data as alleged by the applicants. The applicants did not specify which kind of software contains their personal data, and whether it was legally or illegally installed on the computer. That omission renders their allegation in relation to the scope of Article 8 completely unsubstantiated and unsupported by the necessary details, crucial for the applicability of Article 8 of the Convention.

Furthermore, bearing in mind that the first applicant was sentenced for illegal use of software, it appears that through his request for return of the confiscated computers (together with software installed on them), he is in fact seeking to regain possession of intellectual property acquired by committing a criminal act. In any democratic country it would be unprecedented that property acquired as a result of a criminal act be returned to a convicted person, even if that property contained personal data, in order to satisfy the requirements of Article 8 under the concepts of “home” or “private life”.

Moreover, the confiscated computers were used in the applicants’ internet club. These computers were used by visitors to the club. I even assume that the personal data on the computers were available to visitors (if not, the applicants did not specify this in their submission). A question arises: can we consider data as personal for the purposes of the Article 8 if it was previously accessible to everyone with the consent of the owner of that personal data?

Finally, as mentioned above in regard to the difference between hardware and software, the only possible way to deal with this case was primarily from the perspective of Article 1 of Protocol No. 1 and possibly Article 6. I consider that the applicants are entitled to request repossession of their property, except for that acquired by a criminal act. Any omission regarding the legality of the search-and-seizure operation on the Government’s part may fall under Article 6 and Article 1 of Protocol No. 1, but not under Article 8 of the Convention in these particular circumstances.