Case of European Court of Human Rights, March 26, 2020 (case Pendov v. Bulgaria)

Resolution Date:March 26, 2020
SUMMARY

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;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just... (see full summary)

 
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Information Note on the Court’s case-law 238

March 2020

Pendov v. Bulgaria - 44229/11

Judgment 26.3.2020 [Section V]

Article 10

Article 10-1

Freedom of expression

Limited functionality of applicant’s cultural website due to unnecessary prolonged retention of his computer server in the context of criminal proceedings against third parties: violation

Article 1 of Protocol No. 1

Article 1 para. 2 of Protocol No. 1

Control of the use of property

Unnecessary prolonged retention of the applicant’s computer server in the context of criminal proceedings against third parties: violation

Facts – The applicant’s computer server was seized and retained by the local public prosecutor’s office for about seven and a half months in the context of criminal proceedings against third parties. It was established that the server partially hosted a website suspected of a copyright violation. The retention of the server and the information contained on it led to the limited functionality for a significant period of time of a website run by the applicant and hosted on that server.

Law –

Article 1 Protocol No. 1:

The fact that the applicant’s server had never been examined for the purposes of the criminal investigation which had not been directed against the applicant, but against third parties, the possibility of copying the necessary information, the importance of the server for the applicant’s professional activity, as well as the partial inactivity of the local public prosecutor’s office, meant that the retention of the applicant’s server for seven and a half months had been disproportionate.

Conclusion: violation (unanimously).

Article 10:

The applicant’s website dedicated to Japanese anime culture constituted a means of exercising his freedom of expression. The retention of the applicant’s server and the information contained on it by the local public prosecutor’s office, which had led to the initial unavailability of the applicant’s website, followed by its heavily limited functionality for several months, amounted to an interference with his right to freedom of expression. Even assuming that the data would have allowed full recovery of the website, the Court did not see on what basis the applicant would have been obliged to keep a full back-up of the data on his server at any moment.

The interference had a valid legal basis in the Criminal Code of Procedure and had served the legitimate aims of prevention of disorder and crime and the protection of the...

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