Communicated on 14 November 2018
FIFTH SECTION
Application no. 44229/11
Lazar Milkov PENDOV
against Bulgaria
lodged on 1 July 2011
STATEMENT OF FACTS
The applicant, Mr Lazar Milkov Pendov, is a Bulgarian national, who was born in 1986 and lives in Plovdiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was the owner of a computer server, which hosted a number of web sites, including a site dedicated to Japanese anime culture owned and administered by the applicant himself (according to the applicant, with between 5,000 and 10,000 visits monthly until June 2010), and, partially only, a site owned and administered by other people and offering free access to books (according to the applicant, the latter site was taking about 1% of the server). The server computer was kept in premises used primarily by another person.
On 21 June 2010, in the framework of investigation for breach of copyright against the site offering access to books, the National Service for Combating Organised Crime searched the premises where the applicant’s server was located and seized that server, together with other chattels belonging to the person using the premises. The applicant was only informed of the operation by that person, after becoming aware that his server had stopped working. Despite his requests to that effect, he was never given a copy of the respective search warrant and the record of the search and seizure.
On 22 or 23 June 2010 the applicant visited the National Service for Combating Organised Crime, where he explained that his server had hosted numerous other sites which had stopped functioning as a result of the seizure, and that the server’s main purpose had not been to host the site under investigation.
The same was explained, in writing, in two requests to the Sofia district public prosecutor’s office, submitted by the applicant on 23 July and 10 August 2010. He stated in addition that the server contained his private correspondence and the correspondence of the users of the sites hosted on it, and that since that correspondence was unrelated to the investigated site its retention was unlawful. The applicant urged the prosecution authorities to have the information needed for the investigation copied, and to return his property to him, in accordance with Article 111 § 2 of the Code of Criminal Procedure (see “Relevant domestic law” below).
As there was no response to these requests, on 16 October 2010 the applicant addressed a similar request to the Chief Public Prosecutor’s office. He reiterated his complaints, explaining in addition that the server also contained software which he had been developing.
In the meantime, the criminal proceedings in the framework of which the applicant’s server had been seized were discontinued on 6 August 2010, by a prosecutor at the Sofia district public prosecutor’s office who established that proceedings having the same subject matter were already underway in another town. That decision was not served on the applicant.
Following the applicant’s repeated requests to that effect (additional requests were submitted by him on 15 December 2010 and 18 January 2011), a decision to return to him his server was taken by a prosecutor on 2 February 2011. The return took place on 8 February 2011. To the applicant’s knowledge, the server had not been examined by an expert or subject to any other investigative action.
The applicant submits that his own web site was only restored to its full functionality after the return of his server. However, due to its having been unavailable for several months, it failed to attract as many visitors as before.
B. Relevant domestic law
Article 160 § 1 of the Code of Criminal Procedure (“The Code”) 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.
As a rule, the search and seizure have to be carried out 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).
When the search and seizure concern computers or digital information products, they are to be carried out in the presence of a computer specialist (Article 162 § 6 of the Code). Moreover, when digital information data has to be seized, the files are to be printed out or copied (Article 163 § 7).
Objects representing physical evidence are to be kept by the authorities for the duration of the respective criminal proceedings, save where their return to the persons from whom they were taken would not encumber the investigation (Article 111 § 2 of the Code). Any refusal of the competent prosecutor to return seized property is appealable before the courts (Article 111 § 3).
COMPLAINTS
1. The applicant, relying on Article 6 and Article 7 of the Convention, complains of the seizure of his property, namely his computer server, which he considers unnecessary and disproportionate.
2. He also complains, under Article 8 of the Convention, of the seizure of his correspondence and of other personal material contained on the server.
3. Lastly, the applicant complains under Article 10 of the Convention that the closure of his own website prevented him from receiving and imparting information.
QUESTIONS TO THE PARTIES
1. Did the seizure of the applicant’s server by the authorities on 21 June 2010 amount to interference with the peaceful enjoyment of his possessions, within the meaning of Article 1 of Protocol No. 1? If so, was that interference lawful and otherwise in compliance with the requirements of that provision?
2. Has there been an interference with the applicant’s right to respect for his private life and correspondence, within the meaning of Article 8 § 1 of the Convention, on account of the seizure of his correspondence and private files contained on his server? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
3. Has there been an interference with the applicant’s freedom of expression, in particular his right to receive and impart information, within the meaning of Article 10 § 1 of the Convention, on account of the temporary closure of his website? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?
The Government are requested to submit the documents related to the seizure of the applicant’s property, in particular the search warrant and the record of search and seizure.
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