FOURTH SECTION
CASE OF HADZHIEV
v. BULGARIA
(Application no.
22373/04)
JUDGMENT
STRASBOURG
23 October 2012
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 Hadzhiev v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Lech Garlicki,
President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 2 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
22373/04) 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 Rumen Alekov Hadzhiev
(“the applicant”), on 14 June 2004.
The applicant was represented by Mr M. Ekimdzhiev
and Mr A. Kashamov, lawyers practising respectively in Plovdiv and Sofia. The Bulgarian Government (“the Government”) were represented by their
Agent, Ms M. Dimova, of the Ministry of Justice.
The applicant alleged, in particular, that he had
been subjected to secret surveillance and that he had not had effective
remedies in that respect.
On 10 December 2008 the Court (Fifth Section)
decided to give the Government notice of the complaints concerning the alleged
interference with the applicant’s right to respect for his private life and
correspondence and the alleged lack of effective remedies in that respect. It
was also decided to rule on the admissibility and merits of the application at the
same time (Article 29 § 1 of the Convention).
Following the re-composition of the Court’s
sections on 1 February 2011, the application was transferred to the Fourth
Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was
born in 1948 and lives in Shumen.
A. The first request for information
On 21 June 2001 the
applicant requested the president of the Shumen Regional Court to inform him in
writing whether that court had issued warrants authorising interception of his
communications. Later on he specified that his request did not relate to
current interception; he merely wished to know whether any such warrants had
been issued for past periods. He explained that he needed that information to
be able to decide whether or not to bring a tort claim against the authorities.
On 23 October 2001
the president of the Shumen Regional Court instructed the applicant to specify
the exact period in respect of which he sought information, and referred him to
the Minister of Internal Affairs.
On 25 October 2001
the applicant wrote to the Minister, but did not receive a reply.
He then applied
again to the president of the Shumen Regional Court, reiterating his request
for information and specifying that it related to the period between 1 January
1996 and 1 November 2001. The president of the court wrote on the request
“There has been an answer.”
The
applicant sought judicial review of what he saw as a tacit refusal to provide
him the requested information. On 21 July 2003 the Varna Regional Court, to
which the case had been transferred, dismissed the applicant’s legal challenge,
finding that the information sought by him was classified.
On an appeal by
the applicant, in a final judgment of 12 February 2004 (реш.
№ 1195 от 12
февруари 2004 г.
по адм. д. № 9881/2003 г., ВАС, V о.) the Supreme Administrative Court upheld the lower court’s judgment. It started by observing that
it had to review the tacit refusal’s lawfulness by reference to the factual and
legal grounds for the applicant’s request and the presumed reasons for its
rejection. It went on to say that although the Constitution enshrined the right
to obtain information from a State authority, that right was subject to
limitations when, for instance, the information was classified. It was apparent
from the relevant provisions of the Special Surveillance Means Act 1997 (see paragraphs 23-24 below) that information relating
to secret surveillance was classified. The refusal to provide such information
was therefore compatible with the Constitution and Article 8 of the Convention.
The applicant’s argument that the refusal had been in breach of the legislation
on protection of personal data was unavailing, because material gathered
through secret surveillance fell outside that legislation’s ambit, as did information
on whether such surveillance had been authorised. The applicant’s further
arguments that the information that he sought was not a State or official
secret within the meaning of the Protection of Classified Information Act 2002 and
could be divulged because of the expiry of the two-year time-limit
for its remaining classified were likewise unavailing, because that Act did not
apply retrospectively.
B. The second request for information
In the meantime, on 30
May 2003 the applicant once more requested the president of the Shumen Regional Court to inform him whether any intercept warrants against him had been
issued between 1 November 2001 and 29 May 2003. The court’s president declined
to consider the request pending the outcome of the judicial review proceedings outlined
in paragraphs 11-12 above.
The
applicant sought judicial review of what he saw as a tacit refusal to provide
him the requested information. On 28 October 2003 the Varna Regional Court
dismissed his legal challenge, finding that the information sought by him was
classified.
On an appeal by
the applicant, in a final judgment of 15 May 2004 (реш.
№ 4408 от 15 май 2004 г.
по адм. д. № 996/2004 г., ВАС,
V о.) the Supreme Administrative Court upheld the lower court’s
judgment. It found that the applicant’s request had rightly been rejected,
because information about secret surveillance was classified. Intelligence obtained
pursuant to an intercept warrant, as well as the warrant itself, were also classified.
The court went on to say that the fact that secret surveillance could be
authorised solely by the presidents of the regional courts was sufficient to
ensure independent judicial scrutiny of the executive’s actions and provided a sufficient
safeguard against undue interferences with individual rights. The court also
held that the refusal to provide the information sought by the applicant had
not been in breach of his rights under Article 10 of the Convention, because
the second paragraph of that Article allowed limitations on the rights
enshrined in its first paragraph. The interests set out in the second paragraph
enjoyed a higher degree of protection than the right to obtain and impart
information, and their protection justified certain curtailment of individual
rights.
C. The third request for information
On 4 February 2008 the
applicant again requested the president of the Shumen Regional Court to inform
him whether he had been subjected to secret surveillance between 1 January 1996
and 3 February 2008. On 6 February 2008 the court’s president replied that
the information that the applicant was seeking was classified.
The
applicant sought judicial review. All judges in the Shumen Administrative Court
withdrew from taking part in the case, and it was transferred to the Razgrad Administrative Court.
On 24
September 2008 the Razgrad Administrative Court dismissed the applicant’s legal
challenge, finding that information relating to the use of special means of
surveillance and intelligence obtained through such means was classified and fell
outside the ambit of the legislation on access to public information. Moreover,
under section 33 of the Special Surveillance Means Act 1997 (see paragraph 24 below), any person who had come across information about the use of special means
of surveillance under the conditions and according to the manner set out in the
Act, or intelligence obtained thereby, was under a duty not to disclose it. The
court went on to say that the refusal to provide the information sought by the
applicant had not been in breach of his rights under Articles 8 or 10 of the
Convention, because the second paragraphs of those Articles allowed limitations
on the rights enshrined in their first paragraphs. The interests set out in the
second paragraphs enjoyed a higher degree of protection than the right to
obtain and impart information, and their protection justified the curtailment of
individual rights. The fact that the Special Surveillance Means Act 1997
required judicial authorisation of secret surveillance ensured independent
scrutiny of the executive and was a sufficient safeguard against unjustified encroachments
on individual rights.
On an appeal by
the applicant, in a final judgment of 15 July 2009 (реш.
№ 9720 от 15 юли 2009 г.
по адм. д. № 15505/2008 г.,
ВАС, ІІІ о.) the Supreme Administrative Court upheld the lower court’s judgment, saying that it fully agreed
with its reasoning. The information requested by the applicant was classified. The
refusal to provide it to him had therefore been fully justified. It had not
given rise to a breach of the Convention, because the interests set out in
Article 10 § 2 enjoyed a higher degree of protection than the right to obtain
and impart information, and their protection justified the curtailment of individual
rights.
D. The documents produced by the Government
The Government produced a letter dated 28 April
2009 from the Director of the National Security Agency, an entity created in
2008. The letter, in response to a query by the Government, said that the
Agency had no information showing that the applicant had been subjected to
secret surveillance between 1 January 1996 and 1 November 2001.
The Government also produced a letter dated 8
April 2009 from the president of the Shumen Regional Court in which, in
response to a query by the Government, she said that the information whether
the court had been requested to grant any judicial authorisations for secret
surveillance of the applicant between 1 January 1996 and 1 November 2001 was
classified.
E. The prosecuting authorities’ refusal to provide the
applicant copies of documents
In 2002 the applicant complained to the Varna
Regional Military Prosecutor’s Office about the actions of certain police
officers in relation to his earlier placement in a psychiatric hospital. That
Office opened an inquiry into the matter. On 22 April 2004 the applicant asked
it to provide him with copies of the materials in the file. A prosecutor of
that Office refused. The applicant reiterated his request before the Military Appellate
Prosecutor’s Office, apparently to no avail.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Secret surveillance
A description
of the relevant provisions of the 1991 Constitution, the 1974 and 2005 Codes of
Criminal Procedure, the Special Surveillance Means Act 1997, the Classified
Information Act 2002, and the Access to Public Information Act 2000, as well as
the case-law of the domestic courts and other relevant material can be
found in paragraphs 7-50 of the Court’s judgment in the case of Association
for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (no.
62540/00, 28 June 2007).
For the
purposes of the present case, it should in particular be mentioned that under
section 33 of the Special Surveillance Means Act 1997, any person who comes
across information about the use of special means of surveillance under the
conditions and according to the manner set out in the Act, or intelligence
obtained thereby, is under a duty not to disclose it. By section 1(3) of the
Classified Information Act 2002, “classified information” includes information
which is a State or official secret. Section 25 of the Act defines a “State
secret” as the “information set out in Schedule No. 1 [to section 25 of the
Act], the unregulated access to which could endanger or prejudice the interests
of the Republic of Bulgaria and which relates to national security, defence,
foreign policy, or the protection of constitutional order”. Schedule No. 1 sets
out the categories of information which are liable to be classified as being a State
secret. They include (a) information about the organisation, methods and means
used in the performance of specific tasks carried out by the security services
and law enforcement agencies in their information-gathering and intelligence
operations, information about their special devices, information and objects
obtained as a result of such operations, and information allowing the identification
of persons who have helped or continue to help them in their operations (point
3 of part II of the Schedule); (b) information about the lawful use of special
means of surveillance (technical devices or the way in which they are used)
(point 6 of part II of the Schedule); and (c) intelligence obtained as a result
of the use of such means (point 8 of part II of the Schedule).
Following the Court’s judgment in Association for European Integration and
Human Rights and Ekimdzhiev (cited above), on 14 October 2008 the
Government laid before Parliament a bill for the amendment of the Special
Surveillance Means Act 1997. The explanatory notes to the bill referred to the Court’s
judgment and to the need to bring the Act into line with the requirements of
the Convention. The bill was enacted on 15 December 2008 and came into
force on 27 December 2008. Along with a host of other changes, the amendment
created a National Bureau for Control of Special Means of Surveillance, an independent
body whose five members were to be elected by Parliament and whose task was to
oversee the use of special means of surveillance and the storing and
destruction of material obtained through such means, and to protect individuals
against the unlawful use of such means (new sections 34b(1), 34c and 34d). The
Bureau was to be a permanently acting body having its own administration (new
section 34b(3)). In carrying out its functions it could (a) ask the relevant authorities
to provide it with information in relation to the use of special means of
surveillance; (b) check whether those authorities kept accurate records; (c)
access premises containing such records or material obtained though
surveillance; (d) give mandatory instructions for improvements in the use of
special means of surveillance and in the storage and destruction of material
obtained though such means; and (e) inform the prosecuting authorities and the
heads of the relevant authorities of instances of unlawful use of such means or
of irregularities in the storage or destruction of material obtained though
such means (new section 34g). The Bureau was to submit to Parliament an annual report
setting out aggregated data on the matters that it was overseeing (new section
34b(5)). It was also to inform of its own motion persons who had been
unlawfully subjected to surveillance, unless notification could jeopardise the
purpose of the surveillance (section 34h).
On 22 October 2009, before the Bureau could start operating, Parliament enacted
further amendments to the 1997 Act, abolishing the Bureau and replacing it with
a special parliamentary commission, which has the same powers and duties, save
for the power to give mandatory instructions (point (d) in the above
paragraph); it may only make suggestions for improvements (section 34g, as
amended in 2009). The amendments came into force on 10 November 2009. Under related
amendments to Parliament’s standing rules, which came into force on 19 December
2009, that commission is in effect a permanent sub-commission of Parliament’s
legal affairs commission (new rule 24a(1)). It consists of one MP from each
parliamentary group and has its own standing rules approved by Parliament (new rule
24a(2)). Those rules were adopted on 11 February 2010. The commission, whose
current five members were elected by Parliament on 22 December 2009, is
assisted by fifteen parliamentary staffers (rule 24a(3) of Parliament’s standing
rules and rule 14 of the commission’s standing rules). It must sit, behind
closed doors and in line with the rules governing classified information, at
least once every week (rules 9 and 13 of the commission’s standing rules).
Under section 34h of the 1997 Act, as amended, the commission must inform of
its own motion persons who have been unlawfully subjected to secret
surveillance, unless notification might jeopardise the purpose of the
surveillance, allow the divulgation of operational methods or technical devices,
or put the life or health of an undercover agent or his or her relatives or
friends in jeopardy.
The commission has thus far submitted three annual
reports: the first was submitted in May 2010 and accepted by Parliament on 16
June 2010, the second was submitted in May 2011 and accepted by Parliament on
18 May 2011, and the third was submitted on 4 July 2012 and has yet to be accepted
by Parliament. In that latest report the commission said, inter alia,
that it had received a number of complaints from individuals, and had taken
measures to examine them. It had carried out inspections in seven towns, and
had noted many irregularities, such as insufficiently reasoned applications for
judicial authorisation of secret surveillance, failures to destroy material
obtained through such surveillance within the statutory time-limits, and
failures to report back to the court which had authorised surveillance. The
commission went on to say that the lack of proper record-keeping made it
difficult to oversee the operation of the system as a whole. It also noted the very
low percentage of refused applications for judicial authorisation of secret
surveillance. The total number of requests in 2011 had been 13,846. Only 116 had
been refused, chiefly on purely technical grounds. 7,881 persons had been
subjected to surveillance. 747 requests had yielded material subsequently
used in criminal trials. The analysis of the available data showed that the
authorities were not using secret surveillance as a means of last resort, but
routinely, mainly because it was an almost effortless way of gathering
evidence. It was therefore necessary to tighten up the relevant regulations and
to strengthen judicial control. The commission made a number of specific
proposals in that respect.
B. State liability for damage
Section 2(1)
of the Act originally called the State Responsibility for Damage Caused to
Citizens Act 1988, renamed on 12 July 2006 the State and Municipalities
Responsibility for Damage Act 1988, provides for liability of the investigating
and prosecuting authorities or the courts in several situations: unlawful
detention; bringing of charges or conviction and sentencing, if the proceedings
have later been abandoned or the conviction has been set aside; coercive
medical treatment or coercive measures imposed by a court, if its decision has
later been quashed as being unlawful; and serving of a sentence over and above
its prescribed duration.
On 10
March 2009 a new point 7 was added to section 2(1). It provides that the State
is liable for damage which the investigating and prosecuting authorities or the
courts have caused to individuals through the unlawful use of special means of surveillance.
There is no reported case-law under that provision.
In their case-law
the Supreme Court of Cassation and the Supreme Administrative Court have held
that the liability provisions of the 1988 Act - including those added
after the Act was originally enacted - confer on the persons concerned a
substantive right to claim damages, and have no retrospective effect (реш. № 63 от 21
февруари 1997 г.
по гр. д. № 2180/ 1996 г.,
ВС; реш. № 529 от 17
юли 2001 г. по гр. д.
№ 24/2001 г., ВКС; опр. №
9134 от 3 октомври
2007 г. по адм. д. № 8175/2007
г., ВАС, ІІІ о.; опр. № 1046 от 6
август 2009 г. по
гр. д. № 635/2009 г., ВКС,
ІІІ г. о.; опр. № 1047 от 7
август 2009 г. по
гр. д. № 738/2009 г., ВКС, III г. о.; реш. № 335 от 31
май 2010 г. по гр. д.
№ 840/2009 г., ВКС, III г. о.; реш.
№ 329 от 4 юни 2010 г. по
гр. д. № 883/2009 г., ВКС, IV г. о.).
III. RELEVANT COUNCIL OF EUROPE MATERIALS
The Council of Europe’s
Committee of Ministers, which under Article 46 § 2 of the Convention has the
duty to supervise the execution of the Court’s judgments, is still examining the
execution by Bulgaria of the Court’s judgment in Association for European
Integration and Human Rights and Ekimdzhiev (cited above). According to
information published on the Committee’s website, the case is currently under
“enhanced supervision”. The latest developments were that on 2 March 2011 the
Bulgarian Government had submitted an action report, that on 23 August 2011 they
had provided further information, and that on 26 June 2012 they had submitted a
further action report (in which they had, inter alia, said that they
were not aware of any case-law under the new point 7 of section 2(1) of
the 1988 Act - see paragraph 30 above). Bilateral contacts were still under way
between the Committee’s administration and the Government with a view to
gathering more information necessary for the presentation of a revised action
plan or report to the Committee.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained under Article 8 of the
Convention that the legislation authorising secret surveillance in Bulgaria did not provide sufficient safeguards against abuse and barred the authorities
from giving out any information as to whether a person had been subjected to
such surveillance. He further complained under Article 10 of the Convention
that his first and second requests for information as to whether he had been
subjected to secret surveillance had been rejected.
The Court observes that the applicant’s requests
for information concerned exclusively the question whether or not he had been
subjected to secret surveillance. In those circumstances, the Court considers
that his complaint in respect of the refusals to provide him such information
falls to be examined as an aspect of his broader grievance concerning the lack
of sufficient safeguards against unjustified interferences with his rights
under Article 8 of the Convention. Article 8 provides, in so far as relevant:
“1. Everyone has the right to respect for his
private ... life ... and his correspondence.
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. The parties’ submissions
The Government
submitted that the applicant did not have the status of a victim and that there
had been no interference with his right to respect for his private life or his correspondence,
because, as evident from the letter of the National Security Agency, he had not
been subjected to secret surveillance. His supposition that he had been
subjected to such surveillance, formed wrongly on the basis of random
incidents, was erroneous. A perusal of his applications and requests showed
that he had mistakenly interpreted certain facts. By law, the class of persons
who could be subjected to surveillance was quite limited, as were the authorities
which could request such surveillance. In that connection, it was not to be
overlooked that in 2008-09 the Special Surveillance Means Act 1997 and
the State and Municipalities Responsibility for Damage Act 1988 had been
amended, reinforcing the relevant safeguards. The law now provided for judicial
authorisation of secret surveillance and for written notification of those
concerned in cases of unlawful surveillance. Moreover, the 1988 Act provided
for State liability in cases of unlawful surveillance.
The applicant submitted that under the Court’s
case-law sometimes the mere existence of laws authorising secret
surveillance could render a person victim of an alleged breach of Article 8 of
the Convention. It was not necessary to establish that he had in fact been
subjected to such surveillance. The letter of the National Security Agency which
said that it had no information that special means of surveillance had been
used against the applicant was therefore irrelevant. In any event, that letter
did not constitute full proof that the applicant had not been subjected to secret
surveillance. When he had sought information on that issue in 2001 and 2003,
the Special Surveillance Means Act 1997 had allowed a number of authorities to
request the use of special means of surveillance against a person. The National
Security Agency, which had been created long after that, in 2008, was the
successor of only some of those authorities. A 2009 letter in which the Agency affirmed
that it had no information that the applicant had been subjected to secret surveillance
could not therefore show that other authorities had not sought to have the
applicant subjected to such surveillance. Moreover, the law continued to be
unclear as to the manner in which information about the use of special means of
surveillance was to be recorded and stored. It was therefore difficult to
accept that the Agency could provide full information on that point. Another
reason why the information given by the Agency’s director was of dubious reliability
was that by law any information relating to the use of special means of
surveillance was classified, and its disclosure to an unauthorised person amounted
to a criminal offence. It was therefore hard to believe that the National
Security Agency would make public accurate information about the use of special
means of surveillance against the applicant. The only authority, apart from a regional
court, that would have been able to give comprehensive and reliable information
on that point was the National Bureau for Control over Special Surveillance
Means, whose creation had been mandated by the 2008 amendments to the 1997 Act.
The applicant went on to argue that the above
arguments also showed that there had been an interference with his Article 8
rights. That interference had not complied with the requirements of the second
paragraph of that provision, as interpreted by the Court in relation to secret
surveillance. The applicant drew attention to the Court’s findings in Association
for European Integration and Human Rights and Ekimdzhiev (cited above), and
laid particular emphasis on the Court’s finding that under Bulgarian law it was
not possible to obtain any information about the use of special means of
surveillance. In the applicant’s view, that impossibility was in breach of the
Constitution, as interpreted by the Constitutional Court, the Access to Public
Information Act 2000, and the laws governing protection of personal data. The
national courts’ rulings in the three cases brought by him had disregarded
those provisions, thus doing away with an important safeguard against the
unlawful use of secret surveillance. It was also necessary to point out that in
Bulgaria there were no public reports on the overall operation of the system
of secret surveillance, and that legal challenges aiming to obtain access to
classified reports or statistical information about it had been unsuccessful.
At the same time, the Bulgarian public had become aware, from scandals in the
press, of a number of abuses of special means of surveillance on the part of
the authorities.
B. The Court’s assessment
1. Admissibility
The Government submitted that the applicant had
not in fact been subjected to secret surveillance, and on that basis argued
that he was not a victim of an interference with his rights under Article 8 of
the Convention. The Court observes that it has in a number of previous cases
held that to the extent that a law institutes a system of surveillance under
which all persons in a country can potentially have their mail and
telecommunications monitored, without their ever knowing this unless there has
been either some indiscretion, a deliberate leak, or subsequent notification,
it directly affects all users or potential users of the postal and
telecommunication services in that country. In all of those cases the Court
accepted that an individual may claim to be the victim of a violation
occasioned by the mere existence of secret measures or of legislation
permitting them, without having to allege that such measures were in fact
applied to him or her (see Klass and Others v. Germany, 6 September
1978, §§ 30-38, Series A no. 28; Malone v. the United Kingdom,
2 August 1984, § 64, Series A no. 82; Weber and Saravia v. Germany,
(dec.), no. 54934/00, §§ 78-79, ECHR 2006-XI; Association for
European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no.
62540/00, §§ 58-59, 28 June 2007; Liberty and Others v. the United
Kingdom, no. 58243/00, § 57, 1 July 2008; and Iordachi
and Others v. Moldova, no. 25198/02, § 34, 10
February 2009).
More recently, in Kennedy v. the United
Kingdom (no. 26839/05, § 125, 18 May 2010), the Court, again faced
with a similar objection by the respondent Government, observed that sight
should not be lost of the reason for its departure, in cases concerning secret
measures, from its general approach that individuals cannot challenge a law in
abstracto: to ensure that the secrecy of such measures did not result in
them being effectively unchallengeable and outside the supervision of the
national judicial authorities and the Court. The Court went on to say that where
there was no possibility of challenging the alleged application of secret
surveillance measures at domestic level, widespread suspicion and concern among
the general public that secret surveillance powers were being abused could not
be said to be unjustified. The Court added that in such cases, even where the
actual risk of surveillance was low, there was a greater need for scrutiny by it.
In line with its rulings in those cases, the
Court finds that the applicant can claim to be a victim on account of the very
existence of legislation in Bulgaria permitting secret surveillance. There is
no evidence that the applicant is a person who is of particular interest to the
authorities. However, since he does not contend that he was in fact subjected
to secret surveillance, he does not need to establish a reasonable likelihood
that this has happened (see Halford v. the United Kingdom, 25 June 1997,
§§ 55-57, Reports of Judgments and Decisions 1997-III). Moreover,
it cannot be overlooked that in Association for European Integration and
Human Rights and Ekimdzhiev (cited above, §§ 93 and 103) the Court found
that Bulgarian law, as it stood up until 2007, did not provide sufficient
guarantees against the risk of abuse of the system of secret surveillance, or effective
remedies in that respect.
The Government’s objection concerning the
applicant’s victim status must therefore be dismissed.
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.
2. Merits
(a) Scope of the case
The Court starts by observing that, although the
Government referred in their observations to the 2008-09 changes in the
law governing secret surveillance (see paragraphs 25-27 above) - which came as a result of the Court’s judgment in Association
for European Integration and Human Rights and Ekimdzhiev (cited above) - the
applicant’s complaint, raised in June 2004, concerns the period predating those
developments. The Court must therefore examine the case by reference to the
legal framework in force at the time when the applicant lodged his application
(see Dumitru Popescu v. Romania (no. 2), no. 71525/01, § 84 in limine,
26 April 2007, and Calmanovici v. Romania, no. 42250/02, § 125 in
fine, 1 July 2008). There are two further reasons why it is not appropriate
to examine in this case the compatibility of the 2008-09 legal
developments with the Convention. First, the parties’ observations, which were
filed in September 2009, do not cover all of them and do not address in detail the
question whether they are Convention-compliant. Secondly, and more
importantly, those developments are still under review by the Committee of
Ministers in the exercise of its duty under Article 46 § 2 of the Convention to
supervise the execution of the Court’s judgment in Association for European
Integration and Human Rights and Ekimdzhiev (see paragraph 32 above). That Committee has yet to make a pronouncement on those developments (contrast Verein
gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02,
§ 67, ECHR 2009-...).
(b) Existence of an interference
Having regard to its established case-law
in the matter (see Klass and Others, § 41; Malone, § 64; Weber
and Saravia, §§ 77-79; Association for European Integration and
Human Rights and Ekimdzhiev, § 69; Liberty and Others, § 57; and Iordachi and Others, §
34, all cited above), the Court accepts that the mere existence of
legislation allowing secret surveillance amounted to an interference with the
applicant’s rights under Article 8. It is therefore necessary to examine
whether that interference was justified under the terms of paragraph 2 of that
Article: whether it was “in accordance with the law” and “necessary in a
democratic society” for one of the purposes enumerated in that paragraph.
(c) Justification for the interference
In Association for European Integration and Human Rights and
Ekimdzhiev (cited above, §§ 79-84) the
Court held that the Bulgarian law governing secret surveillance, as in force until
2007, partly met and partly failed to meet Article
8’s requirement that an interference be “in accordance with the law”. The Court
found that the statutory procedure for authorising secret surveillance, if
strictly adhered to, offered sufficient protection against arbitrary or
indiscriminate surveillance. However, it went on to find problems with (a) the
lack of review by an independent body of the implementation of surveillance
measures or of whether the material obtained through such measures would be
destroyed within the statutory time-limit if the surveillance had proved
fruitless; (b) the lack of sufficient safeguards in respect of surveillance
carried out on national security grounds and not in the context of criminal
proceedings; (c) the lack of regulations specifying with an appropriate degree
of precision the manner of screening of such material, or the procedures for
preserving its integrity and confidentiality and the procedures for its
destruction; (d) the lack of an independent body overseeing and reporting on
the functioning of the system of secret surveillance; (e) the lack of
independent control over the use of material falling outside the scope of the
original application for the use of surveillance measures; and (f) the lack of
notification of the persons concerned, even where such notification could be
made without jeopardising the purpose of the surveillance (ibid., §§ 85-91).
On that basis, the Court concluded that Bulgarian law did not provide
sufficient guarantees against the risk of abuse inherent in any system of
secret surveillance (ibid., § 93).
. The
legal framework applicable at the time when the applicant lodged his
application being the same, the Court sees no reason to hold otherwise in the
present case. It accordingly finds that the interference with the
Article 8 rights of the applicant was not “in accordance with the law” within
the meaning of paragraph 2 of that provision. This
conclusion obviates the need for the Court to determine whether the
interference was “necessary in a democratic society” for one of the aims
enumerated therein (see Association for
European Integration and Human Rights and Ekimdzhiev, cited above, § 93).
There has therefore been a breach of Article 8
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
The applicant complained under Articles 6 § 1
and 13 of the Convention that the lack of information on whether or not he had been
subjected to secret surveillance prevented him from seeking any redress in that
respect.
The Court considers that, in the circumstances
of this case, it is more appropriate to examine this complaint solely by
reference to 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.”
A. The parties’ submissions
The Government’s submissions have been set out
in paragraph 35 above.
The applicant submitted that under Bulgarian law
there was no possibility for those concerned to learn, under any circumstances,
whether they had been subjected to secret surveillance. This was evident from
the Court’s findings in Association for European Integration and Human
Rights and Ekimdzhiev (cited above), as well as from the rulings of the
Supreme Administrative Court in the three cases brought by the applicant and in
two other cases. Not only did the Special Surveillance Means Act 1997 not make
provision for notification of those concerned, but it was by law impossible for
them to obtain information on that point even if they were to seek it actively.
It was therefore impossible in practice to claim damages in that respect, the 2009
amendment to the State and Municipalities Responsibility for Damage Act 1988 notwithstanding.
In any event, that amendment did not cover the period in respect of which the
applicant had complained.
B. The Court’s assessment
The Court considers that this 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.
The Court already found that until 2007 there
were no avenues allowing those subjected or suspecting of being subjected to secret
surveillance to vindicate their rights (see Association for European
Integration and Human Rights and Ekimdzhiev, cited above, § 102). In the
present case, the only avenue suggested by the Government was a claim for
damages under the new point 7 of section 2(1) of the 1988 Act, added in March
2009 (see paragraph 30 above). The Court was faced with the same argument in
the case of Goranova-Karaeneva v. Bulgaria (no. 12739/05, § 61, 8 March 2011). It observed
that that provision had come into force long after the applicant had lodged her
application, whereas the assessment whether effective domestic remedies existed
was normally to be carried out with reference to the date on which the
application had been lodged with the Court. The Court went on to say that even
if it were to make an exception from that rule, it was not persuaded that the
new point 7 could provide an effective remedy to the applicant, chiefly because
the Bulgarian courts appeared consistently to construe amendments to the
liability provisions of the State and Municipalities Responsibility for Damage
Act 1988 as conferring substantive rights and not having retrospective effect
(see also paragraph 31 above). It was therefore highly unlikely that those
courts would allow a claim in respect of events which predated the coming into
force of point 7 by several years. The Court observed that the Government had not
cited any examples to show otherwise, and concluded that in the circumstances
of the case the possibility of bringing a claim under the new point 7 was not
an effective remedy. The Court also noted that the Government had not referred
to another remedy, and that it was not aware of any (see Goranova-Karaeneva,
cited above, §§ 62-64).
The Court sees no reason to hold otherwise in
the present case. There is still no reported case-law under the new point
7 of section 2(1) of the 1988 Act (see paragraph 30 in fine above). The Government have not provided any examples of awards of damages under that
provision in relation to secret surveillance predating its coming into force -
or, indeed, any secret surveillance; on the contrary, as recently as June 2012
they acknowledged that they were not aware of case-law under that
provision (see paragraph 32 above).
Since the emphasis of the present case is on the
applicant’s inability to obtain information about the use of special means of
surveillance against him, the Court would also reiterate its finding in Association
for European Integration and Human Rights and Ekimdzhiev (cited above, § 101)
that at the relevant time in Bulgaria, unless charged with a criminal offence
on the basis of material obtained through secret surveillance or profiting from
a leak of information, those concerned could never learn whether they had been
placed under such surveillance, with the result that they were unable to seek
any redress in that respect. It is true that under the new section 34h of the
Special Surveillance Means Act 1997, as amended, a special parliamentary
commission has to notify those unlawfully subjected to secret surveillance, if
this can be done without harming certain countervailing interests (see
paragraph 27 above). However, that cannot be taken into account, because that
opportunity arose long after the lodging of the application, and because it is
unclear whether it applies to past instances of secret surveillance. Moreover, there
is no indication that that commission is under a duty to examine requests for
information made by individuals (see paragraph 26 above).
There has therefore been a breach of Article 13
of the Convention.
III. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE
CONVENTION
The applicant complained under Article 6 § 1 of
the Convention that the judicial review proceedings relating to his first
request for information had not been fair because the courts had decided the
case on the basis of overly vague legal provisions and because their judgments had
been based on a gross misinterpretation of the law. He also alleged that he had
not been on an equal footing with the defendant authority, because in its
judgment of 12 February 2004 the Supreme Administrative Court had said that
it had to assess the lawfulness of the tacit refusal to provide the applicant
information on the basis of the presumed reasons for that refusal.
Having examined the state of Bulgarian law
governing secret surveillance by reference to Article 8 of the Convention and
the availability of remedies in that respect by reference to Article 13 of the
Convention, the Court does not consider it necessary to deal with these
complaints.
IV. ALLEGED VIOLATION OF ARTICLE 34 OF THE
CONVENTION
The applicant complained under Article 34 of the
Convention that the prosecuting authorities had refused to provide him with
copies of the documents that he had requested.
The Court is not persuaded that the prosecuting
authorities’ refusal to provide documents to the applicant prevented him from
lodging an application with the Court (see Glukhikh v. Russia (dec.),
no. 1867/04, 25 September 2008). There is no indication that the applicant
has in fact sought to raise complaints in relation to the matters which the
documents that he had requested concerned, or that the Court has as a result
been prevented from properly examining such complaints (contrast Zdravko Petrov
v. Bulgaria, no. 20024/04, §
62, 23 June 2011).
The respondent State cannot therefore be said to
have failed to comply with its obligation under Article 34 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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
The applicant claimed 10,000 euros (EUR) in
respect of the non-pecuniary damage suffered as a result of the breaches
of Articles 8 and 13 of the Convention. He submitted that Bulgaria had not
only infringed his rights under those provisions, but had also failed to comply
with the Court’s judgment in the case of Association for European
Integration and Human Rights and Ekimdzhiev (cited above) by changing its
laws in an appropriate manner. The applicant made reference to a number of
public scandals relating to irregularities in the use of surveillance measures;
in his view, they showed that the amendments to the 1997 Act had not brought
about any material improvement. This was also evident from the Supreme
Administrative Court’s dismissal of the applicant’s legal challenge against the
refusal of his third request for information. In those circumstances, the mere finding
of violation would not be sufficient to make good the non-pecuniary
damage suffered by him.
The Government submitted that the claim was
exorbitant and unproved. In their view, the finding of a violation would constitute
sufficient just satisfaction for the applicant. In the alternative, they
submitted that any award made by the Court should not exceed the real damage
suffered by the applicant and be consistent with the awards made in similar
cases.
In the circumstances of this case, the Court
considers that the finding of violation constitutes sufficient just
satisfaction for any non-pecuniary damage suffered by the applicant (see,
as a recent authority, Liberty and Others, cited above, § 77). It
notes the applicant’s arguments concerning Bulgaria’s alleged failure to comply
with its judgment in Association for European Integration and Human Rights
and Ekimdzhiev (cited above). However, the Court does not consider that the
points raised by the applicant should prompt it to make an award in respect of
non-pecuniary damage, for several reasons. First, the breaches of
Articles 8 and 13 of the Convention found in the case were based on the state
of the law before the Court’s judgment in Association for European
Integration and Human Rights and Ekimdzhiev (see Goranova-Karaeneva,
cited above, § 81). Secondly, the Court has so far resisted claims for punitive
or aggravated damages (see Greens and M.T. v. the United Kingdom,
nos. 60041/08 and 60054/08, § 97, 23 November 2010, with further references). It
considers that there is nothing in the instant case that could reasonably
justify a departure from that approach. Moreover, the question whether Bulgaria has or has not executed the Court’s judgment in Association for European
Integration and Human Rights and Ekimdzhiev (cited above) is still pending
before the Committee of Ministers (see paragraph 32 above).
B. Costs and expenses
The applicant sought reimbursement of EUR 1,481.70
incurred in fees for twenty-one hours and ten minutes of work by his lawyers
on the domestic proceedings detailed in paragraphs 11-12 and 14-15 above, at EUR 70 per hour, and of EUR 3,757 incurred in
fees for fifty-three hours and forty minutes of work by the same lawyers
on the Strasbourg proceedings, also at EUR 70 per hour. The applicant also claimed
EUR 56 in respect of postage, office supplies, photocopying and telephone charges.
He submitted a fee agreement between him and his lawyers executed on 10 September
2009 and a time sheet, and requested that any sum awarded by the Court under
this head be made directly payable to his legal representatives.
The Government contested the number of hours
spent by the applicant’s lawyers on the case. They also submitted that the
hourly rate charged by those lawyers was several times higher than the usual
rates charged by lawyers in Bulgaria. They suggested that any award in respect
of lawyers’ fees should not go beyond the costs shown to have been actually and
necessarily incurred. The Government went on to say that the claim in respect
of other expenses should be allowed only in so far as supported by documents.
According to the Court’s case-law, costs
and expenses claimed under Article 41 of the Convention must have been actually
and necessarily incurred and reasonable as to quantum.
Costs incurred to prevent or obtain redress for
a violation of the Convention through the domestic legal order are recoverable
under that provision (see,
as a recent authority, Mileva and Others v. Bulgaria, nos. 43449/02
and 21475/04, § 123, 25 November
2010); any costs incurred in relation to the proceedings detailed in paragraphs
11-12 and 14-15 above would in principle fall into that category. As
regards the legal fees incurred for the Strasbourg proceedings, the Court
observes that when considering a
claim in respect of costs and expenses for the proceedings before it, it is not
bound by domestic scales or standards (ibid., § 125). Having regard to
the materials in its possession and the above considerations, and noting in
particular that the case was essentially a follow-up to Association
for European Integration and Human Rights and Ekimdzhiev (cited above) and
that part of the application was declared inadmissible, the Court finds it
reasonable to award the applicant the sum of EUR 2,500, plus any tax that may
be chargeable to him, to cover costs under all heads. This
sum is to be paid directly to the applicant’s legal representatives.
Concerning the claim for other expenses, the
Court observes that the applicant has not submitted any supporting documents.
In those circumstances, and bearing in mind the terms of Rule 60 §§ 2 and 3 of
its Rules, the Court makes no award in respect of those expenses.
C. Default interest
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 UNANIMOUSLY
1. Declares the complaint concerning the
interference with the applicant’s private life and correspondence and the
complaint concerning the alleged lack of effective remedies in that respect admissible
and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 8 of the Convention;
3. Holds that there has been a violation of
Article 13 of the Convention;
4. Holds that there is no need to examine separately
the complaints under Article 6 § 1 of the Convention;
5. Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for any non-pecuniary
damage sustained by the applicant;
6. Holds
(a) that the respondent State is to pay the applicant,
in respect of costs and expenses, within three months from the date on which
the judgment becomes final in accordance with Article 44 § 2 of the Convention,
EUR 2,500 (two thousand five hundred euros), plus any tax that may be
chargeable to the applicant, to be converted into the
currency of the respondent State at the rate applicable at the date of
settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 23 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı Lech Garlicki
Deputy Registrar President
