CASE OF POSEVINI v. BULGARIA

FIFTH SECTION

CASE OF POSEVINI v. BULGARIA

(Application no. 63638/14)

JUDGMENT

STRASBOURG

19 January 2017

FINAL

19/04/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Posevini v. Bulgaria,

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

Angelika Nußberger, President,
Erik Møse,
Ganna Yudkivska,
Faris Vehabović,
Yonko Grozev,
Síofra O’Leary,
Carlo Ranzoni, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 6 December 2016,

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

PROCEDURE

1. The case originated in an application (no. 63638/14) 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”) on 12 September 2014 by four applicants. The first and second applicants, Mr Eduard Anatolievich Posevin, a Russian national born in 1962, and Ms Tetyana Anatolyivna Posevina, a Ukrainian and Bulgarian national born in 1974, are spouses. The third and fourth applicants, Ms Valeriya Eduardovna Posevina, a Ukrainian national born in 2001, and Ms Dzhulia Eduardovna Posevina, a Ukrainian national born in 2004, are their daughters. All applicants live in Plovdiv, Bulgaria.

2. The applicants were represented by Mr M. Ekimdzhiev, Ms K. Boncheva and Ms S. Stefanova, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimitrova, of the Ministry of Justice.

3. The applicants alleged, in particular, that searches and seizures in their house and photography studio, and a search of the first applicant’s email account had been unlawful and disproportionate. They also alleged that the house search and the first applicant’s arrest in the course of that search had constituted inhuman and degrading treatment because the police had acted with needless brutality. Lastly, the applicants alleged that under Bulgarian law they did not have an effective remedy with respect to the searches and seizures, and could not challenge them before a court.

4. On 20 November 2015 the Court decided to give the Government notice of the above complaints and declared the remainder of the application inadmissible under Rule 54 § 3 of its Rules.

5. As the first applicant is a Russian national and the other three applicants are Ukrainian nationals, on 26 November 2015 the Court advised the Government of the Russian Federation and the Government of Ukraine of their right under Article 36 § 1 of the Convention to submit written comments. On 18 February 2016 the former stated that they did not wish to exercise this right at this stage of the proceedings. The latter did not reply within the twelve-week time-limit under Rule 44 § 1 (b) of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The first applicant is a professional photographer. Since 1998 he has owned and managed a single-member limited liability company through which he operates a photography studio in Plovdiv.

A. The investigation of suspected forgery of identity documents

7. In January 2014 the French authorities informed the Bulgarian Border Police that a Turkish national who had a permit to reside in Bulgaria was suspected of forging Bulgarian identity documents and providing them to Turkish nationals residing unlawfully in France. Electronic surveillance had showed that he had exchanged email messages with an alleged accomplice whose email account was hosted by a Bulgarian Internet service provider.

8. Enquiries by the Bulgarian Border Police revealed that the email account belonged to the first applicant and his company. A wiretap placed on the Turkish national’s French mobile telephone showed that on 4 March 2014 he had called the photography studio’s landline and talked with a woman who spoke Bulgarian with a Russian accent. They discussed the receipt of the photographs of two people.

9. On 10-11 March 2014 the Turkish national travelled from Bulgaria to France by car, and was arrested shortly after entering French territory. A search of his car revealed eight fake Bulgarian identity cards, five fake Bulgarian drivers’ licences and six fake Bulgarian passports.

B. The warrants for searches and seizures in the applicants’ house, the first applicant’s car, and the photography studio

10. Two days later, on 13 March 2014, the Plovdiv district prosecutor’s office applied for warrants to search the photography studio, the first applicant’s car and the applicants’ house, and seize evidence there. It set out the above developments, and said that it was investigating the forging of identity documents in which the main suspect was the above-mentioned Turkish national. According to the available information, he had received assistance from the first applicant. The applications were worded as follows:

“In the course of the proceedings, the need has arisen to carry out a search and seizure in [the applicants’ house, the first applicant’s car, and the photography studio], since the available evidence gives probable cause to suspect that [these places] contain items of relevance to the case – items relating to the subject matter of the case. I therefore ... ask for permission for an investigator to search [these places] with a view to finding and seizing the above-mentioned items.”

11. Between 3.30 and 4 p.m. the same day, a judge of the Plovdiv District Court, sitting in private, issued three warrants authorising the searches and seizures in the following terms:

“The submitted materials make it clear that it is necessary to carry out a search and seizure in [these places] with a view to finding the items set out in the application[s] ‑ relating to the forging of identity documents and others, relevant to the case which is the subject matter of the criminal proceedings.”

C. The searches and seizures on 14 March 2014

12. At about 9 a.m. the following day, 14 March 2014, just as the first applicant was leaving his house, he was intercepted by three police officers, two in plain clothes and one in uniform.

13. The parties’ accounts of the ensuing events differ widely. According to the applicants, the police did not identify themselves, roughly pinned down and handcuffed the first applicant behind his back, scared his two daughters, the third and fourth applicants, who were minors, and then searched the house in a rude and chaotic manner, without presenting the warrant authorising them to do so. According to the Government, whose account was based on a statement informally obtained from one of the officers who took part in the search, the first applicant attempted to run back to the house, possibly to conceal evidence, and was only handcuffed for that reason. The officers searched the house with restraint, specifically endeavouring not to frighten the two children. They were only looking for computers, mobile telephones and similar devices, and did not rummage needlessly through things in the house.

14. According to the record of the search, it lasted between 9.15 and 10.50 a.m. and took place in the presence of two certifying witnesses. The police seized eleven SIM cards, identity and other documents, a laptop computer, three mobile Internet dongles, and a mobile telephone.

15. According to the applicants, after the search the officers dragged the first applicant into the street, bent over with his hands handcuffed behind his back, in sight of many neighbours and passers-by. Between 10.55 and 11.05 a.m. they searched his car, from which they did not seize anything. The officers then put the first applicant in a police car and drove to the photography studio, very close to the corner of a busy pedestrian street in the centre of Plovdiv, which they searched between 11.35 a.m. and 12.30 p.m. They again refused to allow the first applicant to acquaint himself with the search warrant. According to the record of that search, the officers seized three desktop computers, two video cameras, two still cameras, several flash memory cards, flash memory drives, and cash.

16. At about the same time, between 11.15 and 11.30 a.m. the police searched the first applicant himself, without a judicial warrant. They seized three flash memory drives and two mobile telephones. They submitted the search record to a judge of the Plovdiv District Court, who approved it at 5 p.m. the same day.

17. The officers then took the first applicant to a police station for a “conversation”. According to the first applicant, he was kept in handcuffs the whole time. The Government denied this, noting that if that had indeed been the case, the first applicant would not have been able to sign the search records and produce a handwritten statement in the police station.

18. In the statement the first applicant explained, inter alia, that he used the email account in which the police were interested (see paragraphs 7 and 8 above) to exchange computer files, mostly image files, with clients of his photography studio. He stated that he agreed to provide access to the account for the needs of the investigation, so that the police could subject the messages in it relating to the Turkish national to examination by an expert, and then gave his password. The Government submitted that the police had used the password to go through the email account, but had not seized any messages from it. The first applicant was released at about 6 p.m. The police did not issue a written order for his detention.

19. The first applicant’s wife, the second applicant, came back to Plovdiv later that evening. According to her, she had been contacted earlier during the day by telephone by her older daughter, the third applicant, and had become worried at the news that her husband had been arrested and their daughters left alone, frightened, in the house. She kept calling her daughters and trying to call her husband throughout the day.

D. The expert’s examination of the seized electronic media

20. On 20 March 2014 the investigator in charge of the case asked a computer expert to copy the data from three of the seized flash memory cards to an optical disk. In his report, submitted the following day, 21 March 2014, the expert said that he had copied all the files from two of the cards and that the third card did not contain any files.

21. On 6 June 2014 the investigator asked the same expert to copy the data from the laptop computer seized in the applicants’ house to an external hard drive and to inspect the three desktop computers seized in the photography studio for the presence of software or files which could be used for the forging of documents. In his report, submitted on 18 June 2014, the expert said that he had copied 192,610 files with a total size of 333,204 megabytes from the laptop computer to an external hard drive, which he enclosed with his report, and that his inspection of the desktop computers had revealed that two of them contained software programs which could be used to edit image files, and that the third computer was defective and could not be booted up.

22. It is unclear what happened with the data copied from the laptop computer and the two memory cards.

E. The return of the seized items

23. On 17 March 2014 the first applicant asked the Plovdiv district prosecutor’s office to order the return of all the seized items. He submitted that they were not relevant for the case and that he urgently needed them for his work as a photographer. On 20 March 2014 the prosecutor’s office partly allowed the request and ordered the return of some of the items – two cameras, two flash memory cards, and two video cameras – but only after the police had made copies of their contents. The next day, 21 March 2014, those items were given back to the first applicant. On 7 April 2014 he appealed to the Plovdiv regional prosecutor’s office, complaining of the refusal of the lower prosecutor’s office to order the return of the remainder of the seized items. It does not appear that he received a formal reply to his appeal, but on 14 May 2014, two months after the seizure, the investigator in charge of the case gave him back three mobile telephones, three mobile Internet dongles, 1,000 euros (EUR), 100 United States dollars, four flash memory cards, and three flash memory drives. The remainder of the seized items were given back to the first applicant a little more than three months after the seizure, on 18 June 2014, immediately after their contents had been inspected by the expert (see paragraph 21 above).

F. The ensuing course of the investigation

24. On 9 July 2014 the police sent the case file to the Plovdiv district prosecutor’s office, recommending that the proceedings be discontinued. On 2 September 2014 that office disagreed and instead decided to stay the proceedings on the grounds that the author of the presumed offence had not been identified. On 10 September 2014 it sent the case file back to the police for further investigation. On 18 March 2015 the police again transmitted the case file to the Plovdiv district prosecutor’s office. It appears that the proceedings are still pending. Neither the first nor the second applicant has been charged with an offence.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Search of premises

25. Searches of premises in the course of criminal proceedings are governed by Articles 160 to 163 of the Code of Criminal Procedure of 2005.

26. Article 160 § 1 provides that when there are enough grounds to suspect that premises contain items, papers or computer systems which contain data that might be relevant for a criminal case, they may be searched and those items or data seized.

27. As a rule, searches and seizures in the course of a preliminary investigation must be authorised beforehand by a judge of the first-instance criminal court which would try the case or the first-instance criminal court which has jurisdiction over the place where the search and seizure are to take place (Article 161 § 1). In exigent circumstances, when a search and seizure would be the only way to obtain and preserve evidence, the investigating authorities may proceed without a judicial warrant, but then the supervising public prosecutor must submit the record of the search to a judge for approval immediately or, in any event, not more than twenty-four hours after the search (Article 161 § 2).

28. Articles 162 and 163 lay down the manner in which searches and seizures are to be carried out.

29. Article 162 § 1 provides that the search and seizure must take place in the presence of certifying witnesses and the person who uses the premises. By Article 162 § 2, if that person or a family member cannot be present, the search and seizure must be carried out in the presence of the building manager or a representative of the municipality. Article 162 § 6 provides that when the search and seizure concern a computer system or software, they must be carried out in the presence of a technical specialist.

30. Article 163 § 1 provides that, unless urgent, searches and seizures must be carried out during the day. By Article 163 § 2, before proceeding with the search, the investigating authorities must present the search warrant to the person concerned and ask him or her to produce the items, papers or computer systems that they are seeking. By Article 163 § 3, the officers carrying out the search may prohibit those present at the search from interacting with one another or others, or from leaving the premises, until the search is over. By Article 163 § 4, when carrying out a search and seizure, the authorities may not take steps not required to attain their purpose, and rooms and containers may only be opened by force if the persons concerned refuse to open them, but unnecessary damage must be avoided. Article 163 § 5 provides that if the search and seizure reveal intimate details about those concerned, the authorities must take steps to prevent that information from becoming public knowledge.

31. Article 163 §§ 7 and 8, which relate to data in computer systems, provide that, as a rule, such data must be seized in printed form. If that is not possible, the computer system must be sealed with a record featuring the case number, the authority which has carried out the seizure, the place and time, and the names of all persons present, who must then sign the record. The system can then only be unsealed if authorised by the competent public prosecutor and in the presence of certifying witnesses and a technical specialist.

B. Seizure and retention of email correspondence

32. The seizure and retention of paper or email correspondence in the course of criminal proceedings is governed by Article 165 of the Code. Article 165 § 1 provides that such correspondence may only be seized and retained if necessary to uncover or prevent “serious offences” (Article 93 § 7 of the Criminal Code of 1968 defines a serious offence as one punishable by more than five years’ imprisonment, life imprisonment, or whole life imprisonment). Article 165 § 2 provides that the seizure and retention of correspondence in the course of a preliminary investigation must be authorised, following an application by the competent public prosecutor, by a judge of the first-instance criminal court which would try the case or the first-instance criminal court which has jurisdiction over the place where the seizure is to take place. Reported cases under those provisions show that the courts have authorised the prosecuting authorities to seize email messages by approaching the Internet service provider which holds them on its servers (see опр. № 451 от 31.07.2012 г. по ч. н. д. № 942/2012 г., РС-Враца; опр. № 559 от 09.10.2012 г. по ч. н. д. № 1182/2012 г., РС-Враца; and опр. № 142 от 14.03.2013 г. по ч. н. д. № 319/2013 г., РС-Враца).

33. In two recent judgments (реш. № 530 от 04.01.2012 г. по н. д. № 2005/2011 г., ВКС, I н. о., and реш. № 17 от 29.01.2015 г. по н. д. № 1622/2014 г., ВКС, I н. о.) which concerned, inter alia, questions of whether the investigating authorities had duly seized Skype conversations and whether it had been proper to admit them in evidence, the Supreme Court of Cassation held that the search of data in computer systems under Article 163 of the 2005 Code (see paragraph 31 above) and the seizure of electronic correspondence under Article 165 of the Code (see paragraph 32 above) were distinct procedures, subject to different requirements, but that the Skype conversations at issue, which were both “computer data” for the purposes of the former Article and “correspondence” for the purposes of the latter Article, had been properly seized because they had been obtained by accessing the data in computers which had themselves already been duly seized. In the first case, the court examined whether the investigating authorities had resorted to the procedure under Article 163 to circumvent that under Article 165, but was satisfied that they had not.

C. Liability of the authorities for arrests, searches and seizures

1. Under the State and Municipalities Liability for Damage Act 1988

34. Section 1(1) of the State and Municipalities Liability for Damage Act 1988 provides that the State is liable for damage suffered by individuals or legal entities as a result of unlawful decisions, actions or omissions by State or municipal authorities or civil servants, committed in the course of or in connection with administrative action. By section 1(2) of the Act and Article 203 § 1 of the Code of Administrative Procedure of 2006, in force since March 2007, such claims fall to be examined by the administrative courts. Before that, they were within the jurisdiction of the civil courts.

35. Section 2(1) of the Act provides for liability of the investigating and prosecuting authorities and the courts in several specific types of situation: unlawful detention; the bringing of charges, if the accused is acquitted or the proceedings are discontinued on certain grounds; conviction and sentencing, if the conviction is later set aside; coercive medical treatment or coercive measures imposed by a court, if the decision is later quashed as being unlawful; the serving of a sentence beyond its prescribed duration; and the unlawful use of special means of surveillance. In 2012 the list was expanded to include any deprivation of liberty contrary to Article 5 § 1 of the Convention, and any breach of paragraphs 2 to 4 of that Article. By section 2(3), such claims fall to be examined by the civil courts.

36. In an interpretative decision of 22 April 2005 (тълк. реш. № 3 от 22.04.2005 г. по тълк. гр. д. № 3/2004 г., ВКС, ОСГК), the Supreme Court of Cassation held, inter alia, that the administrative authorities could not incur liability under those provisions for actions taken by them under orders of the investigating or prosecuting authorities. The investigating and prosecuting authorities could not be held liable in respect of such actions or orders either, unless they fell within one of the types of situation exhaustively set out in section 2(1).

37. However, on 10 February 2014 the Supreme Administrative Court held, contrary to a judgment that it had given on this point in 2010 (реш. № 13496 от 11.11.2010 г. по адм. д. № 3090/2010 г., ВАС, III о.), that the brutal way in which the police had rushed into a person’s home, handcuffed him, even though he had not put up resistance, taken him out in the street in his underpants, woken up his wife and children, and searched the premises in an aggressive manner, were “administrative action” within the meaning of section 1(1), even though the search had taken place in a criminal case. The court noted that it was not deciding whether the search had been duly ordered, but simply whether the police had acted lawfully in carrying it out (see реш. № 1841 от 10.02.2014 г. по адм. д. № 13445/ 2012 г., ВАС, III о.). On remittal, in February 2015 the Pernik Administrative Court found, by reference to, inter alia, Article 3 of the Convention, that the actions of the police in the case before it had been unlawful within the meaning of section 1(1), and awarded the claimant 5,000 Bulgarian levs (BGN) (EUR 2,556) in non-pecuniary damages (see реш. № 44 от 19.02.2015 г. по адм. д. № 127/2014 г., АС-Перник). In July 2016 the Supreme Administrative Court upheld that ruling, but increased the quantum of the award to BGN 10,000 (EUR 5,113) (see реш. № 8948 от 18.07.2016 г. по адм. д. № 7569/2015 г., ВАС, III о.).

38. In the wake of that judgment, two lower administrative courts gave conflicting rulings on the point resolved by the Supreme Administrative Court. In April 2016 (see реш. № 673 от 08.04.2016 г. по адм. д. № 1517/2015 г., АС-Бургас) the Burgas Administrative Court found the police liable under section 1(1) for the way in which they had conducted a search, whereas in July 2016 (see реш. № 270 от 11.07.2016 г. по адм. д. № 434/2015 г., АС-Перник) the Pernik Administrative Court held that the police could not be liable under that provision as they did not engage in “administrative action” when conducting a search in a criminal case. Neither of those judgments appears to be final.

39. In February 2013 (see реш. № 2363 от 19.02.2013 г. по адм. д. № 4187/2012 г., ВАС, III о.) the Supreme Administrative Court held that when the police arrest a person and place him or her in police detention they engage in “administrative action”. On that basis, it awarded BGN 2,000 (EUR 1,023) to a person treated roughly by the police in the course of her arrest and subsequent four-hour police detention, even though it made no award in respect of the detention as such, because the detention order had not been quashed in earlier proceedings.

40. In April 2013 the Supreme Administrative Court held that by needlessly handcuffing in public a person placed under police detention the police had caused damage which could be indemnified under section 1(1) (see реш. № 16059 от 12.04.2013 г. по адм. д. № 15439/ 2012 г., ВАС, III о.). Similarly, in October and December 2013 that court upheld awards of damages to persons who had been unnecessarily handcuffed while in police detention (see реш. № 13685 от 21.10.2013 г. по адм. д. № 13778/2012 г., ВАС, III о., and реш. № 16059 от 04.12.2013 г. по адм. д. № 15439/2012 г., ВАС, III о.).

41. However, in May 2014 (see реш. № 6728 от 20.05.2014 г. по адм. д. № 15766/2013 г., ВАС, III о.), the Supreme Administrative Court held that the arrest of a witness who was later charged and became an accused was not “administrative action”, because the police officer who had arrested her had done so in his capacity as a criminal investigating authority and in the exercise of powers under the Code of Criminal Procedure.

42. In 2013 (see опр. № 11 от 13.02.2013 г. по адм. д. № 93/2012 г., ВКС и ВАС, см. петчл. с-в) a joint five-member panel of the Supreme Court of Cassation and the Supreme Administrative Court – the formation which resolves conflicts of jurisdiction between the civil and the administrative courts – held that when retaining items seized in a criminal case the police did not engage in “administrative action”, and that a claim for damages relating to such retention was to be heard by the civil rather than the administrative courts.

2. Under the Obligations and Contracts Act 1951

43. The general law of torts is set out in sections 45 to 54 of the Obligations and Contracts Act 1951. By section 45(1), everyone is obliged to make good the damage which he or she has, through his or her fault, caused to another. By section 49, a person who has entrusted another with a job is liable for the damage caused by that other person in the course of or in connection with the job. Legal entities cannot be liable under section 45(1), but can be vicariously liable under section 49 for the tortious conduct of individuals whom they employ (see пост. № 7 от 30 декември 1959 г., ВС, Пл.). Liability under those provisions is premised on the wrongfulness of the impugned conduct (see реш. № 567 от 24.11.1997 г. по гр. д. № 775/1996 г., ВС, петчл. с-в).

44. In August 2011 the Sofia Court of Appeal dismissed claims under section 49 against a criminal court and the prosecuting authorities in relation to a search and seizure. It held, inter alia, that a civil court could not examine whether a criminal court had duly authorised a search and seizure, or whether the actions of the prosecuting authorities in a criminal case were wrongful (see реш. № 1478 от 12.08.2011 г. по в. гр. д. № 1330/2011 г., САС). The Supreme Court of Cassation refused to examine an appeal on points of law against that judgment (see опр. № 640 от 30.05.2012 г. по гр. д. № 1728/2011 г., ВКС, IV г. о.).

45. In June 2012 the Supreme Court of Cassation dismissed claims under section 49 against the police and the prosecuting authorities in relation to the seizure of records in a notary’s office in a criminal case. It held that the seizure, having been duly ordered in criminal proceedings, had been necessary. It was therefore not wrongful (see реш. № 222 от 05.06.2012 г. по гр. д. № 967/2011 г., ВКС, IV г. о.).

46. By contrast, in December 2011 the Supreme Court of Cassation allowed a claim under section 49 in relation to the excessively lengthy retention of a motor car seized in a criminal case. It held that the retention of seized items beyond the time-limits for completing a criminal investigation was wrongful (see реш. № 465 от 20.12.2011 г. по гр. д. № 1794/2010 г., ВКС, IV г. о.).

III. RELEVANT COUNCIL OF EUROPE MATERIALS

47. In an action plan submitted to the Committee of Ministers in April 2015 in connection with the execution of the Court’s judgments in Peev v. Bulgaria (no. 64209/01, 26 July 2007) and Iliya Stefanov v. Bulgaria (no. 65755/01, 22 May 2008), the Government acknowledged that, to comply with those judgments, Bulgaria had to put in place a “procedure whereby a person c[ould] contest [a] search and seizure, air his or her grievances related to the repercussions on the right to respect for private life ... and have the possibility to obtain redress”. The measures being considered included a change in the courts’ case-law or amendments to the 1988 Act (see paragraphs 34 and 35 above).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

48. The applicants complained that the police had searched their house and had arrested the first applicant in a needlessly brutal and public manner, and had then, again needlessly, kept his hands handcuffed behind his back for nearly all the time he was in detention at the police station. They relied on Article 3 of the Convention, which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. The parties’ submissions

49. The Government submitted that the applicants had not exhausted domestic remedies. They had not attempted to trigger criminal or disciplinary proceedings against the police officers who had taken part in the searches, or brought a claim for damages under section 1(1) of the 1988 Act. In view of the recent case-law of the Supreme Administrative Court in such cases, which pre-dated the searches of the applicants’ house and the photography studio and the first applicant’s arrest, such a claim had to be seen as an effective remedy. The applicants had also not brought a claim for damages under section 49 of the 1951 Act.

50. The applicants submitted that any attempt to seek the imposition of criminal or disciplinary sanctions on the police officers who had carried out the searches and seizures and arrested the first applicant would have failed. Internal police investigations were normally entrusted to colleagues of those involved, and were hence not effective and impartial. They were usually not duly carried out and often amounted to a whitewash rather than a serious attempt to uncover misconduct. A complaint to the prosecuting authorities would not have led to serious investigative efforts either. Those authorities clearly knew about the incident, and yet had not investigated it. A claim under section 1(1) of the 1988 Act would have been bound to fail, as under the prevailing case-law of the Bulgarian courts, including the Supreme Court of Cassation’s 2005 interpretative decision (cited in paragraph 36 above), the actions of the police in a criminal case were not “administrative” within the meaning of that provision. Unlike in the other cases (cited in paragraph 40 above), here the police had acted on orders by the prosecuting authorities in a pending criminal case. The February 2014 judgment of the Supreme Administrative Court (cited in paragraph 37 above) had been an isolated precedent rather than settled case-law, and ran against the Supreme Court of Cassation’s interpretative decision, which was binding on all courts. Moreover, it had not resulted in a final award by the time the application had been lodged. Lastly, it had assessed the conduct of the police under the domestic rules governing searches rather than by reference to Article 3 of the Convention.

B. The Court’s assessment

51. On the basis of the Supreme Court of Cassation’s 2005 interpretative decision cited in paragraph 36 above, in Gutsanovi v. Bulgaria (no. 34529/10, § 94, ECHR 2013 (extracts)) the Court found that a claim for damages under section 1(1) of the 1988 Act (see paragraph 34 above) with respect to rough treatment by the police in carrying out a search and arrest in a criminal case, would have been bound to fail. The Court accordingly rejected the Government’s objection of non-exhaustion of domestic remedies.

52. In three more recent judgments, which likewise concerned heavy‑handed searches and arrests, the Court also rejected similar objections by the Government. It noted that the purported change in the Supreme Administrative Court’s case-law under section 1(1) of the 1988 Act in relation to such matters had taken place after the searches or arrests at issue and after the lodging of the applications, whereas the availability of an effective domestic remedy had to be assessed by reference to the time when the application had been lodged (see Slavov and Others v. Bulgaria, no. 58500/10, § 55, 10 November 2015; Govedarski v. Bulgaria, no. 34957/12, § 38, 16 February 2016; and Alexey Petrov v. Bulgaria, no. 30336/10, § 41, 31 March 2016).

53. By contrast, here the searches and the first applicant’s arrest took place a little over a month after the Supreme Administrative Court’s February 2014 judgment that the police could be liable in damages under section 1(1) of the 1988 Act for the way in which they carry out a search and a related arrest in a criminal case (see paragraphs 12 and 37 above). The applicants lodged their application a little more than seven months after that judgment (see paragraph 1 above). By that time, they could have known of the judgment, which was available on the Supreme Administrative Court’s website and in various commercial legal databases (see, among other authorities, Broca and Texier-Micault v. France, nos. 27928/02 and 31694/02, § 20, 21 October 2003; Scordino v. Italy (no. 1) [GC], no. 36813/97, § 147, ECHR 2006-V; and Valada Matos das Neves v. Portugal, no. 73798/13, §§ 104-06, 29 October 2015).

54. It was thus at least reasonably probable that a claim for damages under section 1(1) of the 1988 Act in relation to the manner in which the police carried out the searches and treated the first applicant in the course of his arrest and subsequent stay in the police station would have succeeded. The existence of an adverse ruling in a somewhat similar case (see paragraph 41 above) does not mean that the applicants should not have attempted such proceedings. Doubts about the prospects of a remedy which appears to offer a reasonable possibility of redress are not a sufficient reason to eschew it (see, among other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 74 and 84 in fine, 25 March 2014; Avotiņš v. Latvia [GC], no. 17502/07, § 122, ECHR 2016; and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX). One such situation is when the domestic courts have given conflicting rulings (see Whiteside v. the United Kingdom, no. 20357/92, Commission decision of 7 March 1994, Decisions and Reports 76-A, p. 80), as opposed to a consistent line of adverse precedents (see, among other authorities, Open Door and Dublin Well Woman v. Ireland, 29 October 1992, § 50, Series A no. 246-A; Keegan v. Ireland, 26 May 1994, § 39, Series A no. 290; and Colon v. the Netherlands (dec.), no. 49458/06, § 56, 15 May 2012).

55. There is no reason to suspect that the Bulgarian courts would not examine such a claim by reference to Article 3 of the Convention. They did so in the case which gave rise to the February 2014 judgment (see paragraph 37 above). It can reasonably be expected that they would do so in a similar case, especially considering that the Convention is part of Bulgarian domestic law (see Neshkov and Others v. Bulgaria, nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, §§ 95-97, 27 January 2015).

56. In view of that conclusion, there is no need to examine whether criminal or disciplinary proceedings against the police officers who carried out the searches and the first applicant’s arrest would, in themselves, also have been effective domestic remedies. It should only be noted that such proceedings – which the applicants did not attempt to trigger at any point –could have enabled the establishment of the facts and thus facilitated the use of the above-mentioned civil-law remedy, even if they had not resulted in individual criminal or disciplinary liability (see, mutatis mutandis, Golovan v. Ukraine, no. 41716/06, §§ 74 and 79, 5 July 2012). Nor is it necessary to decide whether a claim for damages under section 49 of the 1951 Act (see paragraphs 43-45 above) would have stood a chance of success.

57. The complaint must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

58. The applicants complained that the searches in their house and the photography studio had not been duly circumscribed by the search warrants which had authorised them, had encompassed many items – such as mobile telephones, computers, flash memory drives and memory cards, and later even the first applicant’s email account – which contained personal data, and had been carried out chaotically. They relied on Article 8 of the Convention, which provides:

“1. Everyone has the right to respect for his private and family life, his home 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

59. The Government submitted that the searches had been lawful. Unlike in some earlier cases against Bulgaria, they had been authorised beforehand in well-reasoned judicial decisions. The searches had also been necessary. They had taken place in the investigation of cross-border criminal conduct, and been based on a reasonable suspicion of the first and second applicants’ involvement in the forging of identity documents. The searches had been limited to items which might have been used to commit this offence and items which could have shown a link between the first and second applicants and the main suspect, the Turkish national arrested in France. All seized items later deemed irrelevant had been quickly given back to the applicants. The applicants had not complained to the authorities, either during the search or later, that some of the items contained personal information.

60. As for the search of the first applicant’s email account, he had freely provided his password. There was, moreover, no evidence that he had objected to the search at the time when it had been carried out or later. Lastly, no email messages had been seized.

61. The applicants submitted that the prior judicial authorisation of the searches had not sufficiently protected them against arbitrariness. The applications by the prosecuting authorities had not borne legible dates or document numbers, and the search warrants had not had document numbers, which raised the suspicion that they had been drawn up later, for the purposes of these proceedings. Moreover, the court’s reasoning had been brief and formulaic. Also, some of the information serving as a basis for the warrants had been obtained by covert surveillance, whereas in Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (no. 62540/00, 28 June 2007), this Court had found that Bulgarian law did not lay down enough safeguards against the improper use of such surveillance. The interference with the applicants’ rights had therefore been unlawful and disproportionate.

62. The applicants went on to submit that while the police had not directly ordered the first applicant to provide the password for his email account, he had done so after having been arrested and mistreated, which had caused him to feel vulnerable and had pressured him into complying with the informal urging of the police to do so. The fact that the authorities had not seized any email messages did not mean that they had not searched the account.

B. The Court’s assessment

1. Scope of the complaint

63. In their application, the applicants only complained of the searches of their house and the photography studio, and of the search of the first applicant’s email account (see paragraph 58 above). The Court will accordingly only examine those matters, even though in the course of their operation the police also searched the first applicant himself and his car.

2. The searches of the applicants’ house and the photography studio

64. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on other grounds. It must therefore be declared admissible.

65. A search of residential and business premises entailing, as here, the seizure of equipment containing electronic data, is an interference with the “private life”, “home” and “correspondence” of those concerned (see Niemietz v. Germany, 16 December 1992, §§ 29-31, Series A no. 251-B; Buck v. Germany, no. 41604/98, §§ 31-32, ECHR 2005-IV; and Heino v. Finland, no. 56720/09, § 33, 15 February 2011, as regards searches in business premises; Smirnov v. Russia, no. 71362/01, § 36, 7 June 2007, as regards the seizure of equipment containing electronic data from a person’s home; and Sallinen and Others v. Finland, no. 50882/99, § 71, 27 September 2005; Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, § 45, ECHR 2007-IV; and Prezhdarovi v. Bulgaria, no. 8429/05, § 41, 30 September 2014, as regards the seizure of equipment containing electronic data from business premises).

66. Such interference is in breach of Article 8 of the Convention unless it was “in accordance with the law”, pursued a legitimate aim as defined in the second paragraph of that Article, and was “necessary in a democratic society” to achieve that aim.

67. The searches and seizures in the applicants’ house and the photography studio were based on the relevant provisions of the Code of Criminal Procedure of 2005, and were based on judicial warrants (see paragraphs 11 and 26-31 above). It can thus be accepted that the interference was “in accordance with the law”. The question whether the way in which the police carried out the searches was duly circumscribed by the warrants which authorised them will be examined from the perspective of the necessity of the interference (see Robathin v. Austria, no. 30457/06, § 41 in fine, 3 July 2012, and Bagiyeva v. Ukraine, no. 41085/05, § 48, 28 April 2016).

68. Since the searches and seizures took place in the course of an investigation into the suspected forgery of documents, they served a legitimate aim under Article 8 § 2 of the Convention: the prevention of crime.

69. Whether the interference was “necessary in a democratic society” turns on whether domestic law laid down effective safeguards against abuse or arbitrariness, and on whether those safeguards operated properly in practice (see Vinci Construction and GTM Génie Civil et Services v. France, nos. 63629/10 and 60567/10, § 66, 2 April 2015, with further references).

70. The situation here differed from those in Gutsanovi (cited above, § 221), Slavov and Others (cited above, § 145), Govedarski (cited above, § 82), and Prezhdarovi (cited above, §§ 45-46), in all of which the searches had not been authorised beforehand by a judge. But the fact that a search is based on a warrant issued by a judge does not necessarily amount to a sufficient safeguard. It also matters whether that prior judicial scrutiny was properly carried out (see Vinci Construction and GTM Génie Civil et Services, cited above, § 79): whether the judge duly examined the existence of a reasonable suspicion justifying the search, drawing up the search warrant in a way to keep its impact within reasonable bounds (see Iliya Stefanov, cited above, §§ 39-41, as well as Ernst and Others v. Belgium, no. 33400/96, § 116, 15 July 2003; Van Rossem v. Belgium, no. 41872/98, §§ 45-48, 9 December 2004; Robathin, cited above, §§ 45-47; and Bagiyeva, cited above, § 52), and sought to satisfy herself that a search in the place in respect of which a warrant was sought could yield relevant evidence (see, mutatis mutandis, Keegan v. the United Kingdom, no. 28867/03, §§ 32-35, ECHR 2006-X, and Smirnov, cited above, § 47).

71. It can be accepted that the searches of the applicants’ house and photography studio were based on a reasonable suspicion. The applications by the prosecuting authorities chiefly referred to information from the French authorities that the first applicant had links with a Turkish national suspected of trafficking in forged Bulgarian identity documents, and also referred to intelligence obtained via a wiretap of that person’s mobile telephone (see paragraphs 7, 8 and 10 above). Contrary to the applicants’ arguments, the use of wiretap information does not in itself cast doubt on the existence of a reasonable suspicion. It is true that in Association for European Integration and Human Rights and Ekimdzhiev (cited above, §§ 85-86) the Court found, inter alia, that Bulgarian law, as it stood in 2007, did not contain enough safeguards that the authorities deploying covert surveillance measures, such as wiretaps, would faithfully reproduce the original data in the written record, or lay down proper procedures for preserving the integrity of such data. But, in the wake of that judgment, in 2008 the statute governing covert surveillance was amended in 2008 to bring it into line with the requirements of the Convention (see Lenev v. Bulgaria, no. 41452/07, § 80, 4 December 2012). The Court’s findings in Association for European Integration and Human Rights and Ekimdzhiev (cited above) are therefore of no relevance for the wiretap in this case, which was put in place in 2014. Moreover, the wiretap information was only part of the material used to justify the need for the searches (contrast, mutatis mutandis, C.G. and Others v. Bulgaria, no. 1365/07, §§ 14 and 47-48, 24 April 2008).

72. The warrants were couched in relatively broad terms. Although limiting the searches to specific premises, they did not describe in detail the items which could be searched for and seized, but instead referred in more general terms to the type of items “relating to the forging of identity documents and others, relevant to the case” (see paragraphs 10 and 11 above), that is, objects which might be used to perform the activities which were the subject of the offence under investigation. The specificity of the items subject to seizure varies from case to case depending on the nature of the offence being investigated (see Sher and Others v. the United Kingdom, no. 5201/11, § 174, ECHR 2015 (extracts)). In this case, the prosecuting authorities and the police, which had to act quickly after the arrest of the first applicant’s alleged accomplice in France (see paragraph 9 above), could not have known in advance what specific items could furnish proof of the forging of identity documents of which the first applicant was a suspect. Although it might have been feasible to frame the warrants in more precise terms, it was sufficient, in the circumstances, that their scope was limited by reference to the nature of the alleged offence, thus circumscribing sufficiently the discretion of the officers who carried out the searches, who only seized items which could be seen as potentially connected with the alleged offence (see paragraphs 14 and 15 above).

73. It is true that, as recognised by the Government, Bulgarian law did not lay down a procedure whereby the applicants could challenge the searches after they had taken place (see paragraph 47 above). But, since prior judicial control of the searches was available, the absence of such a procedure did not in itself render them disproportionate. In any event, this point is more appropriately dealt with under Article 13 of the Convention (see paragraphs 84-86 below).

74. There has therefore been no breach of Article 8 of the Convention.

3. The search of the first applicant’s email account

75. Email is “correspondence” within the meaning of Article 8 § 1 of the Convention (see Copland v. the United Kingdom, no. 62617/00, § 41, ECHR 2007-I, and M.N. and Others v. San Marino, no. 28005/12, § 52, 7 July 2015). But the search of the first applicant’s email account was not an interference with his rights under this provision. The police were only able to go through the account because the first applicant gave them his password and invited them to do so (see paragraph 18 above). There is no evidence that he did so under overt or implied coercion: that he was made to understand that he had no choice but to allow the police to access the account (contrast, mutatis mutandis, Kučera v. Slovakia, no. 48666/99, § 119, 17 July 2007, and Rachwalski and Ferenc v. Poland, no. 47709/99, § 72, 28 July 2009), or that they would do so anyway (contrast, mutatis mutandis, Saint-Paul Luxembourg S.A. v. Luxembourg, no. 26419/10, § 38, 18 April 2013). The fact that the first applicant had been taken to the police station in handcuffs and was in custody does not in itself alter that conclusion.

76. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

77. The applicants complained that they did not have an effective domestic remedy in respect of the alleged breaches of Articles 3 and 8 of the Convention. They 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.”

A. The parties’ submissions

78. The Government submitted that the complaints under Articles 3 and 8 of the Convention were not arguable, and that Article 13 did not therefore apply. In the alternative, they argued that the applicants had had an effective remedy in respect of the searches and seizures in the form of disciplinary proceedings against the police officers who had carried them out and a claim for damages under section 1(1) of the 1988 Act or section 49 of the 1951 Act. The applicants had not pursued any of those remedies, but it was still open to them to do so.

79. The applicants referred to their submissions on the exhaustion of domestic remedies with respect to the complaint under Article 3 of the Convention (see paragraph 50 above). They also pointed out that the prosecuting authorities and the Ministry of Internal Affairs had not opened disciplinary proceedings against the police officers who had carried out the searches, even after becoming aware of the applicants’ complaints before the Court.

B. The Court’s assessment

1. Article 13 of the Convention in conjunction with Article 3

80. In paragraphs 51-55 above, the Court found that the applicants had at their disposal a remedy which offered a reasonable chance of success with respect to their complaint under Article 3 of the Convention. In view of the close affinities between Articles 13 and 35 § 1 of the Convention, that finding is equally valid in the context of this complaint (see Slimani v. France, no. 57671/00, § 42, ECHR 2004-IX (extracts), and Dimitrovi v. Bulgaria (dec.), no. 25776/05, § 70, 17 December 2013). To be effective within the meaning of Article 13, a remedy does not need to guarantee a favourable outcome (see Soering v. the United Kingdom, 7 July 1989, § 122, Series A no. 161; Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 122, Series A no. 215; and, more recently, Nationaldemokratische Partei Deutschlands v. Germany (dec.), no. 55977/13, § 23, 4 October 2016).

81. It follows that the complaint under Article 13 of the Convention in conjunction with Article 3 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. Article 13 of the Convention in conjunction with Article 8

82. The complaint Article 8 of the Convention about the search of the first applicant’s email account was declared manifestly ill-founded because the search was not an interference with his rights under this provision (see paragraphs 75 and 76 above). It follows that the first applicant did not have an arguable claim in this regard, and that this part of the complaint under Article 13 of the Convention is inadmissible (see Iliya Stefanov, cited above, §§ 61-62).

83. By contrast, although the Court found no breach of Article 8 of the Convention in relation to the searches of the applicants’ house and the photography studio (see paragraphs 70-74 above), the claim that those searches were not necessary in a democratic society can be regarded as arguable. This part of the complaint under Article 13 of the Convention is therefore admissible, and it must be seen whether the applicants had an effective remedy in respect of the searches.

84. The possibility to seek disciplinary proceedings against the police officers who carried out the searches was not such a remedy (see, mutatis mutandis, Van Droogenbroeck v. Belgium, 24 June 1982, § 51, Series A no. 50). The notion of an effective remedy in this context does not entail the imposing of sanctions on the officials who carried out the searches (see Peev, § 70, and Golovan, § 72, both cited above). It must rather be seen whether the applicants had access to a procedure enabling them to contest the lawfulness of the searches and seizures and obtain appropriate redress if they were unlawfully ordered or executed.

85. In Iliya Stefanov (cited above, § 59), the Court found that neither the Code of Criminal Procedure of 1974 nor any other provision of Bulgarian law laid down such a procedure. In Gutsanovi (cited above, §§ 234-35), Govedarski (cited above, § 94), Stoyanov and Others v. Bulgaria (no. 55388/10, § 152, 31 March 2016) and Popovi v. Bulgaria (no. 39651/11, § 122, 9 June 2016), the Court found the same with respect to the Code of Criminal Procedure of 2005. Although the Government appear to be considering steps to fill this gap (see paragraphs 47 and 73 above), it continues to exist. The February 2014 judgment of the Supreme Administrative Court that the police may be liable under section 1(1) of the 1988 Act with respect to heavy-handedness in searches (see paragraph 37 above) only partly fills it, as in such proceedings it is not possible to challenge a search as such, or the way in which it has been ordered or authorised. For their part, the civil courts appear reluctant to review the lawfulness of decisions by the prosecuting authorities and criminal courts to order and authorise searches and seizures in criminal proceedings (compare with Saint-Paul Luxembourg S.A., cited above, § 31). They have only imposed liability in damages for the unduly prolonged retention of seized items (see paragraphs 44-46 above).

86. Thus, as things stood in March 2014 and still stand today, under Bulgarian law it is not possible to challenge a search or a seizure as such (contrast Chappell v. the United Kingdom, 30 March 1989, §§ 21-23, Series A no. 152-A (search in civil proceedings); Buck, cited above, §§ 20 and 46 (search in proceedings relating to a regulatory offence); Keegan v. the United Kingdom, §§ 14-20; Smirnov, §§ 30 and 45 in fine; Robathin, §§ 12 and 50; and Sher and Others, §§ 85-86, 109-12 and 175, all cited above (searches in criminal proceedings); and Société Canal Plus and Others v. France, no. 29408/08, §§ 22-23, 21 December 2010 (search in proceedings conducted by the competition authorities)).

87. There has therefore been a breach of Article 13 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

88. The applicants complained that under Bulgarian law it was not open to them to bring judicial proceedings to challenge the searches and seizures and obtain damages in relation to them. They relied on Article 6 § 1 of the Convention, which provides, in so far as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] tribunal ...”

89. The Government submitted that recent case-law showed that the Bulgarian courts examined claims for damages relating to searches, seizures and the retention of seized material. It was also possible to seek judicial review of the prosecuting authorities’ refusal to give back retained items. The applicants had not attempted to use either of those procedures.

90. The applicants referred to their submissions on the exhaustion of domestic remedies with respect to their complaint under Article 3 of the Convention (see paragraph 50 above).

91. The complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on other grounds. It must therefore be declared admissible.

92. But, in view of the findings under Article 13 of the Convention (see paragraphs 85 and 86 above), it is not necessary to examine the merits of this complaint.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

93. 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

94. The applicants claimed 10,000 euros (EUR) each in respect of the alleged breaches of their rights under Article 3, Article 6 § 1, Article 8 and Article 13 of the Convention.

95. The Government left it to the Court to determine the appropriate amount of just satisfaction.

96. In this case, an award of just satisfaction can only be based on the breach of Article 13 of the Convention. Ruling on an equitable basis, as required under Article 41 of the Convention, and finding that it would be artificial to distinguish between the non-pecuniary damage suffered by each of the four applicants as a result of this matter, the Court awards them jointly EUR 1,500, plus any tax that may be chargeable.

B. Costs and expenses

97. The applicants sought reimbursement of EUR 4,440 incurred in lawyers’ fees for thirty-seven hours of work on the proceedings before the Court, at EUR 120 per hour. They said that they had already paid their legal representatives EUR 1,200 and remained liable for the remainder. The applicants further sought reimbursement of 103.20 Bulgarian levs (BGN) (EUR 52.77) which their legal representatives had spent for postage, EUR 25 which they had spent for office supplies, and EUR 10 which they had spent for photocopying. Lastly, they claimed EUR 159.08 spent on the translation of the observations and claims made on their behalf into French. They requested that any award under this head, except the EUR 1,200 which they had already paid their legal representatives, be made directly payable to their legal representatives’ firm, Ekimdzhiev and Partners. In support of their claim, the applicants submitted a fee agreement with their legal representatives, which said, inter alia, that the applicants had paid BGN 2,347 (EUR 1,200) up front; a time-sheet, which also said that the applicants had paid BGN 2,347 (EUR 1,200) up front; receipts showing that they had spent BGN 48.20 to post their original application; and a contract for translation services between their legal representatives and a translator.

98. The Government submitted that the claim in respect of lawyers’ fees was excessive, and that there was no evidence that the applicants had actually paid the EUR 1,200 to their lawyers.

99. According to the Court’s settled case-law, costs and expenses are recoverable under Article 41 of the Convention if it is established that they were actually and necessarily incurred and are reasonable as to quantum.

100. In this case, part of the application was declared inadmissible, which calls for a certain reduction in the award of costs (see, among other authorities, Yordanova and Toshev v. Bulgaria, no. 5126/05, § 85, 2 October 2012). Also, the hourly rate charged by the applicants’ legal representatives is higher than those charged in recent cases against Bulgaria of similar or greater complexity (see Dimitrov and Others v. Bulgaria, no. 77938/11, § 185, 1 July 2014 (EUR 60 per hour); Myumyun v. Bulgaria, no. 67258/13, § 83, 3 November 2015 (EUR 100 per hour); and Ivanova and Cherkezov v. Bulgaria, no. 46577/15, § 86, 21 April 2016 (EUR 80 per hour)). It is therefore not reasonable as to quantum. Having regard to these points and the material in its possession, the Court awards the applicants EUR 2,000, plus any tax that may be chargeable to them, in respect of their legal costs. Since the fee agreement and the time-sheet specified that the applicants had paid their legal representatives the equivalent of EUR 1,200, that sum is to be paid to the applicants, and the remainder of the award, EUR 800, to their legal representatives’ firm, Ekimdzhiev and Partners. As regards the claim for other expenses, the applicants did not submit supporting documents other than a contract for translation services and postal receipts for documents sent to the Court. In those circumstances, the Court awards them EUR 200 in respect of those expenses. This sum is likewise to be paid to the firm of their legal representatives.

C. Default interest

101. 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. Declares, unanimously, the complaints concerning (a) the interference with the applicants’ private life, home and correspondence resulting from the searches and seizures in their house and the photography studio, (b) the lack of an effective remedy in that respect, and (c) the lack of access to a court in that respect admissible and the remainder of the application inadmissible;

2. Holds, by five votes to two, that there has been no violation of Article 8 of the Convention with respect to the searches and seizures in the applicants’ house and the photography studio;

3. Holds, unanimously, that there has been a violation of Article 13 read in conjunction with Article 8 of the Convention owing to the lack of an effective remedy in respect of the searches in the applicants’ house and the photography studio;

4. Holds, unanimously, that there is no need to examine the complaint under Article 6 § 1 of the Convention;

5. Holds, unanimously,

(a) that the respondent State is to pay the applicants, jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,200 (two thousand two hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; EUR 1,200 of this sum is to be paid to the applicants, and the remainder to the firm of their legal representatives, Ekimdzhiev and Partners;

(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;

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

Done in English, and notified in writing on 19 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident

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

A.N.
M.B.

PARTLY DISSENTING OPINION
OF JUDGES GROZEV AND RANZONI

While we agree with all the other findings in the present judgment, we find ourselves unable to follow the majority with respect to its ruling on the applicants’ complaint of a violation of Article 8 as a result of the search of their home. We are of the view that the search warrant was not sufficiently precise in describing the items to be searched for and that this lack of specific description of the items to be seized was not counterbalanced by any subsequent safeguards.

In reviewing complaints of unlawful searches and seizures under Article 8 of the Convention, the Court has underlined the need for specificity in a search warrant. While the Court has never treated this as a stand-alone requirement but as one of the factors to be taken into consideration when deciding on the proportionality of the interference, it has still given it particular weight. According to the Court, a search warrant must be accompanied by certain limitations, in order to guarantee that the interference which it authorises is not potentially unlimited. The Court has held in this respect that the warrant itself must specify the items being searched for and that this cannot be supplemented by a description of those items in the application for a warrant made by the investigating or prosecuting authorities, unless that application is enclosed with the warrant when it is presented to the person whose premises are to be searched (see Van Rossem v. Belgium, no. 41872/98, § 47).

The purpose of such a requirement is quite obvious, namely to make it possible to verify subsequently whether the police officers who enforced it had complied with the scope of the authorised search (see Van Rossem, cited above). It is only where the person affected is informed of the items being searched for that he or she is able to check whether the search is being lawfully carried out and to react if it is not. For this reason, a subsequent review of the lawfulness of the search is also an element that the Court will take into account in assessing the lawfulness of the search warrant. A warrant that is too broad in scope can nonetheless be considered valid if there are other sufficient safeguards, including a procedure after the search in which the persons concerned can challenge it (see Robathin v. Austria, no. 30457/06, §§ 47 in fine and 48).

The sufficiency of the description of the items to be seized will certainly vary from case to case, depending on all the relevant circumstances, such as the place to be searched and the nature of the allegations (see Sher and Others v. the United Kingdom, no. 5201/11, § 174, ECHR 2015 (extracts)). If the case is a large-scale and complex terror investigation, with a significant number of uncertainties, a wide description could well be sufficient (ibid.). However, in a financial fraud investigation, a search warrant granted “in order to investigate and seize any documents that might assist in the investigation” has been found by the Court to be insufficiently precise, as it imposed no limitation of any sort on the police officers carrying out the search (see Van Rossem, cited above).

Turning to the case at hand, we cannot help but note that the search warrant was couched in very broad terms. It referred solely to the crime that was being investigated, namely forgery of identity documents, and did not mention any specific items to be searched for (see paragraphs 10 and 11 of the judgment). The sufficiency of the description certainly has to be judged in the light of the information available to the authorities at the time they obtain the warrant and in the present case it was clear that at the time when the search warrant was requested and granted, the authorities did have quite specific information. The prosecuting authorities and the police were looking for technical equipment and storage devices – computers, hard drives, video cameras, flash memory drives – which could prove that the first applicant, a professional photographer, was forging Bulgarian identity documents. However, this information was not reflected in the search warrant or any other document communicated to the applicants during the search of their home. Furthermore, the search warrant did not refer to proceeds of the alleged crime. Nevertheless, the police also seized cash (see paragraph 15 of the judgment). This fact clearly demonstrates, in our view, that the search warrant was not sufficiently specific and limited in scope.

The fact that the searched premises were the home of the applicants made it even more important that in its search warrant the domestic court enumerate the items that the investigators were looking for. Such a procedural requirement seems neither excessively burdensome nor unreasonable, and it certainly allows a meaningful and effective subsequent review to be made. Combined with the fact that no subsequent review of the lawfulness of the search (see paragraphs 85 and 86 of the judgment), capable of protecting the applicants against any abuse or arbitrariness, was possible under the national law, the failure to specify the scope of the search warrant leads us to the conclusion that there was a violation of Article 8 of the Convention.

 

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