Case of European Court of Human Rights, March 26, 2020 (case PENDOV v. BULGARIA)

Defense:BULGARIA
Resolution Date:March 26, 2020
SUMMARY

Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;... (see full summary)

 
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FIFTH SECTION

CASE OF PENDOV v. BULGARIA

(Application no. 44229/11)

JUDGMENT

Art 1 P1 • Control of the use of property • Unnecessary prolonged retention of the applicant’s computer server in the context of criminal proceedings against third parties • Authorities’ failure to examine the server and copy relevant information • Importance of the server for the applicant’s professional activity

Art 10 • Freedom of expression • Limited functionality of applicant’s cultural website due to unnecessary prolonged retention of his computer server

STRASBOURG

26 March 2020

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 of Pendov v. Bulgaria,

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

Síofra O’Leary, President,Gabriele Kucsko-Stadlmayer,André Potocki,Yonko Grozev,Mārtiņš Mits,Lәtif Hüseynov,Lado Chanturia, judges,and Claudia Westerdiek, Section Registrar,

Having regard to:

the application 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 a Bulgarian national, Mr Lazar Milkov Pendov (“the applicant”), on 1 July 2011;

the decision to give notice to the Bulgarian Government (“the Government”) of the complaints concerning the search and seizure of the applicant’s property, the seizure of his correspondence and other personal material and the closure of his website, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 3 March 2020,

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

INTRODUCTION

The applicant complained, relying on Articles 6, 7, 8 and 10 of the Convention and Article 1 of Protocol No. 1, of the seizure and retention by the prosecution authorities of a computer server owned by him, in the context of criminal proceedings against third parties. The retention of the server and the information contained in it also led to the limited functionality for a significant period of time of a website run by the applicant and hosted on that server.

THE FACTS

  1. The applicant was born in 1986 and lives in Plovdiv. He was represented by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.

  2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms I. Stancheva-Chinova of the Ministry of Justice.

  3. In 2010 a publishing house complained to the police that a book published by it had been made available on the Internet, in breach of copyright – allegedly an offence under Article 172a of the Criminal Code (see paragraph 18 below). The ensuing investigation showed that the site which had uploaded the book was partially hosted on a server owned by the applicant. The investigation also established the premises where the server at issue was being kept.

  4. At that time the server hosted a number of other websites as well, including one dedicated to Japanese anime culture owned and administered by the applicant.

  5. Following an application by the police, on 18 June 2010 a judge at the Sofia District Court issued a search warrant authorising the search of the premises where the applicant’s server was being kept. She considered that there were sufficient grounds to believe that such a search would yield evidence relevant for the investigation.

  6. The search was carried out on 21 June 2010 by the police in Sofia. The officers seized and removed the applicant’s server. The applicant was not present, and the person who was principally using the premises and was present explained that the applicant’s server mainly hosted his anime site.

  7. The applicant was not given copies of the search warrant issued in the case or of the record of search and seizure. On 23 June 2010 he was interviewed by the police.

  8. On 23 July 2010 the applicant submitted to the Sofia district public prosecutor’s office a request for the return of his server, under Article 111 of the Code of Criminal Procedure (see paragraph 20 below). He pointed out that the information necessary for the criminal investigation of the third parties involved could be copied and the server could be returned to him, and explained that the server also hosted several other sites, including his own. That site had stopped functioning owing to the seizure, and some of the services it offered, such as its chat service, could not be restored without the data contained on the server. The applicant considered that the closure of his site had “discredited” him in the eyes of the users and his colleagues. He also pointed out that he had invested a lot of personal effort and financial resources in it. He stated that the site had previously been visited by between 500 and 600 users per day.

  9. On 10 August 2010 the applicant submitted to the Sofia district public prosecutor’s office a further request for the return of his property, explaining additionally that personal correspondence of the users of his site had been stored on the server and that the seizure of that correspondence should not have been permitted. The server also contained “objects of copyright”. The applicant stated that the unavailability of his site had caused him “significant damage”, including of a financial nature. He considered it unjust that he had had to suffer such “harsh consequences”, seeing that there had been no complaints with regard to his own site.

  10. On 16 October 2010 the applicant wrote to the Chief Public Prosecutor’s Office. He complained about the seizure of his server, which he considered unlawful, and pointed out that the server had not been returned to him, even though it was not being examined by experts (see below). He explained once again that the server hosted other sites as well as his own site, and that it also contained the correspondence of that site’s users. He stated that he had incurred significant losses, including from the retention of a software product he had been developing. On 27 October 2010 he stated additionally that the server contained his and other people’s “objects of copyright”. In a further letter dated 18 January 2011 and addressed to the Chief Public Prosecutor’s Office the applicant pointed out, without further explanations, that the authorities’ actions had breached his rights to private life and correspondence guaranteed under Article 8 of the Convention.

  11. In the meantime, on 29 June 2010 a police investigator commissioned an expert report to establish whether the applicant’s server had hosted the site under investigation. She stated that, in the event that relevant information was found, the expert was to copy it on a storage device.

  12. However, since it transpired that criminal proceedings with regard to the same facts had already been opened by the prosecution authorities in another town, Troyan, the expert examination was not carried out and on 6 August 2010 the proceedings in Sofia were discontinued. The decision ordering the discontinuation stated that the Troyan district public prosecutor’s office was to be informed that physical evidence relevant to the case was being kept in Sofia.

  13. After the applicant wrote to the Chief Public Prosecutor’s Office in October 2010 (see paragraph 10 above), that body made enquiries. On 2 November 2010 the Sofia district public prosecutor’s office informed it of the discontinuation of the proceedings which had been opened in Sofia and of the placement of the physical evidence at the disposal of the Troyan district public prosecutor’s office. The Troyan office, in a letter of 14 January 2011, stated that it had no information on the whereabouts of the evidence at issue.

  14. In a letter dated 10 January 2011 the Chief Public Prosecutor’s Office asked the two district offices to establish where the physical evidence was being kept and, if it was not necessary for the investigation, to release it.

  15. The evidence was released following a decision of the Sofia district public prosecutor’s office of 2 February 2011.

  16. The applicant’s server was returned to him on 8 February 2011.

  17. The applicant’s own website, which at that time had been operating for more than four years, stopped functioning after the seizure of his server on 21 June 2010. On 23 June 2010, using another server, the applicant managed to publish on the site a statement urging the prosecution authorities to correct the “mistake” they had made. On 27 July 2010, again using another server which he described as having “very limited capacity”, he activated a “minimal” version of the site, mostly with the aim of explaining to its users what had happened. This version was created on the basis of “partial old archives” and, according to the applicant, had “severely limited and extremely insufficient” functionality: in particular, its forum, chat service and image-hosting service were completely unavailable. The website was only restored to full functionality after the server had been returned to the applicant. However, according to him, it never returned to its previous popularity. Currently, the website is active, but “infrequently visited”. After being unavailable for some time, its chat service is no longer in use.

    RELEVANT LEGAL FRAMEWORK AND PRACTICE

  18. Under Article 172a of the Criminal Code, the unauthorised copying and distribution of an object of copyright is punishable by up to five...

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