Communicated on 7 June 2018
FIFTH SECTION
Application no. 38482/11
Todor Stoyanov KOLEV
against Bulgaria
lodged on 8 June 2011
STATEMENT OF FACTS
The applicant, Mr Todor Stoyanov Kolev, is a Bulgarian national, who was born in 1959 and lives in Veliko Tarnovo. He is represented before the Court by Ms V. Koeva, a lawyer practising in Veliko Tarovo.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, an accountant, is the owner and manager of a company providing accounting services in Veliko Tarnovo. In the beginning of 2011 the company had more than 300 clients.
In the morning of 18 April 2011 police officers and tax inspectors, led by an investigator of the Veliko Tarnovo Regional Investigation Service, arrived in the applicant’s office, situated next to his house. The investigator read out to the applicant a judicial search warrant, without giving him a copy of the document. The applicant, understanding that several companies which were his clients were under investigation, and that the officers would be searching for information concerning them, said that he would present such information voluntarily. He provided numerous documents – some in hard copy and the remainder in electronic format. He states that, despite his doing so, the investigator insisted that he provide further documents, concerning business partners of one of the investigated companies. The applicant explained that he did not have such documents, which was confirmed by his employees who had arrived in the meantime.
Following the applicant’s “refusal”, the police and tax officers searched the premises of the company, also entering the applicant’s house and checking the family’s private belongings. The applicant’s wife, grandson and mother were there at that time. The applicant was not allowed to leave the premises or to use his telephones.
The search was stayed in the evening and completed in the morning of the next day. It was carried out in the presence of certifying witnesses – two persons who had arrived with the police officers. The officers seized all computers of the applicant’s accounting company, including ones on which no information related to the investigated companies was stocked, but which contained electronic signatures and access codes to the online banking accounts of some of the applicant’s other clients. The applicant’s objections to the seizure of these items were not accepted. Documents in hard copy and other items were seized as well.
It became clear later on that several individuals who were shareholders in the companies information on which was sought with the applicant were being investigated for usury and tax offences. It has not been claimed that the applicant was himself implicated in these offences.
In the morning of 19 April 2011 a lawyer retained by the applicant lodged with the Veliko Tarnovo Regional Public Prosecutor’s Office – which supervised the investigation – a request for the return of the chattels seized from the company’s premises. She pointed out that the search and seizure had been hugely disproportionate with a view of the requirements of the investigation, that the computers contained information, including sensitive one, on numerous other clients of the applicant’s company who had not agreed to reveal such information to the authorities, and that abuse with that information was possible, and, lastly, that the absence of the computers and the data stocked on them impeded the company’s work. In the afternoon of the same day the lawyer submitted a further request for the return of three computers and a server, pointing out that they were needed urgently by the company and did not contain any information on the investigated companies.
In the afternoon of the same day the applicant was interviewed by the investigator. According to him, during the interview it was revealed to him that the documents which had been sought with him had been found with his respective clients.
As no answer to the applicant’s requests to receive back his chattels was received in the following days, on 26 April 2011 he submitted a further request, pointing out that his company’s work continued to be impeded.
On the same day two prosecutors from the Veliko Tarnovo Regional Public Prosecutor’s Office issued a decision, mentioning only the items of which the applicant’s lawyer had requested the urgent return in the afternoon of 19 April 2011, and refusing to return them, reasoning that this could not be done before the items were examined by the experts who had in the meantime been appointed. Nevertheless, the two prosecutors stated that the applicant should be allowed to make a copy of the information necessary for his company’s work with other clients.
The applicant received this decision on 28 April 2011. He was allowed to copy the information at issue on 30 April 2011.
On 2 and 12 May 2011 the applicant requested once again the return of the items seized from his company’s premises. He explained that he had had to buy new computers, but still some of his employees could not resume their work.
On 28 May 2011 he informed the prosecution that the online banking accounts of some of his clients, the access codes to which had been saved on the seized computers, had been accessed by IP addresses other than his.
B. Relevant domestic law and practice
1. Search and seizure
Article 160 § 1 of the Code of Criminal Procedure provides that where there exist sufficient grounds to believe that certain premises contain objects or documents which may be relevant to a criminal investigation, the authorities can carry out a search and seizure there.
According to Article 161 § 1 of the Code, save in exigent circumstances, during the preliminary investigation a search and seizure can be carried out only pursuant to a warrant issued by a judge of the competent first‑instance court. The warrant is issued in ex parte proceedings, without notification or participation of the persons concerned.
As a rule, the search and seizure has to be carried out during the day and in the presence of the person using the premises. That person is first to be invited to provide the items searched (Articles 162 § 1 and 163 §§ 1 and 2 of the Code). The officers carrying out the search cannot undertake any actions which are not necessary for the search (Article 163 § 4).
2. State liability for damage
The relevant domestic law and practice in this regard have been summarised in Iliya Stefanov v. Bulgaria (no. 65755/01, §§ 28-29, 22 May 2008).
COMPLAINTS
The applicant complains under Article 8 of the Convention (relying in addition on Article 6) that the search of his office was disproportionate and that the authorities seized numerous items which were unrelated to the aims of that search. He points out that the search and seizure paralysed the work of his company and damaged his good name and his professional reputation.
The applicant complains in addition under Article 13 of the Convention that he did not have any effective domestic remedy in relation to his complaints above.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s right to respect for his private life, home and correspondence, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 8, as required by Article 13 of the Convention?
3. The authorities are requested to provide a copy of the search warrant against the applicant.
Both parties are requested to indicate what the relevant developments after the lodging of the present application were.
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