FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 8429/05
by Roumen Trifonov PREZHDAROV and Anna Aleksandrovna PREZHDAROVA
against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 31 May 2011 as a Chamber composed of:
Nicolas Bratza, President,
Sverre Erik Jebens,
Päivi Hirvelä,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 7 March 2005,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Mr Roumen Trifonov Prezhdarov, is a Bulgarian national who was born in 1968 and lives in Pazardzhik. The second applicant, Ms Anna Aleksandrovna Prezhdarova, is a Russian national who was born in 1965 and lives in Pazardzhik. The applicants are represented before the Court by Mr V. Stoyanov, a lawyer practising in Pazardzhik.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background
The applicants are married.
As a sole trader, on 20 August 2002 the first applicant took out a bank loan in order to purchase computers and to set up a computer club. The computer club was situated in a garage, apparently owned by the applicants. According to the first applicant's submissions, the second applicant had assisted him in running the club and had replaced him when he was absent.
When he started his business the first applicant purchased five computers and several computer games which he installed on the computers. The clients of the club were able to use the computers at the price of one Bulgarian lev (BGN) per hour.
As the first applicant was renting the use of the computers to his clients, he was obliged to pay the necessary licensing fees to the distributors of the companies which owned the copyright in the products. In 2004 the first applicant had to renew his contracts with the distributors but he failed to do so.
On 9 November 2004 the director of the local sanitation department at the Ministry of Health ordered that the computer club be closed down for sanitary reasons. Apparently, the applicants continued running the club despite the order.
2. The search and seizure in the garage
On 31 January 2005 V.E., a manager of a company which distributed computer games, lodged a complaint against the first applicant with the district prosecutor in Pazardzhik. V.E. stated that in the period between September 2004 and December 2004 he had visited the computer club. He claimed to have noticed that despite their lack of a software license for reproduction and distribution the applicants had installed certain types of games on the computers and had rented them to their clients.
On 2 February 2005 the district prosecutor, after noting the lack of information sufficient to justify the institution of criminal proceedings, ordered the police to conduct a preliminary inquiry into the computer club premises. The prosecutor stated that in the event that the police officers established that illegal software was being used, they should take measures for securing the necessary evidence, amongst which were on-the-spot inspection and search and seizure of the computers.
In executing the prosecutor's order, on 14 February 2005 the police authorities drew up an action plan. It stated that police officer R.P. was in charge of the operation. It further provided that another police officer with technological expertise would compare the software installed on the computers to the purchased software. In the event that discrepancies were found the police would conduct a search and seizure. The operation was planned for 21 February 2005.
On 21 February 2005 at approximately 3.30 p.m. the police, including a police investigator (дознател), arrived at the computer club. They noted that the computers were running and that there were people in the club. The police officers explained the aim of the inspection. The first applicant objected to the possible search and seizure, stating that the police did not have a judicial warrant, and asked to contact a lawyer. The police apparently briefly pointed to the prosecutor's order of 2 February 2005. The first applicant was allowed to contact his lawyer but, according to the applicant's submissions, the police refused to wait for the lawyer's arrival.
The police inspected the receipts from the club's cash till and the daily sales record and concluded that the applicants had received money that day, most probably for providing commercial services. Following that, the police authorities inspected the applicants' five computers and found that a number of computer games had been installed on them.
The first applicant was invited to present documents such as purchase invoices or any other evidence of his title to the games. As he failed to do so, the police seized the computers.
The search and seizure operation terminated at 6 p.m.
The search and seizure operation was carried out in the presence of two certifying witnesses. The police drew up a report containing an inventory of the seized items, namely the computers and their content, which consisted of computer programmes, computer games and movies. The report was signed without comment by the certifying witnesses. The first applicant refused to comment on the report or to sign it.
On 22 February 2005 the police investigator sent a letter to the district prosecutor informing the prosecutor of the results of the operation. She noted that on the strength of the search and seizure operation a preliminary investigation had been instituted against the first applicant.
On the same day, at the request of the police investigator, a judge from the District Court approved the search and seizure operation on the basis of Article 135 § 2 of the Code of Criminal Procedure 1974. The judge briefly noted that there had been exigent circumstances and that an immediate search and seizure had been the only means by which the collection and preservation of the necessary evidence could be undertaken. The decision was sent to the police in order to be enclosed with the case file as an integral part of the search and seizure record.
On 23 February 2005 the first applicant filed an application with the District Court asking the court to disapprove the search and seizure record, arguing that a search and seizure had not been the only means by which the preservation of evidence could have been undertaken and that there had not been exigent circumstances. On 2 March 2005 the application was returned to the applicant as inadmissible as the search and seizure had already been approved by a court decision which was not subject to appeal.
Between February 2005 and February 2006 the applicants filed requests on several occasions with the prosecutor for the return of the seized computers. The applicants claimed that the computers had contained personal information. They further claimed that the computers had been necessary for their other business activities, namely the second applicant's typewriting services which she was allegedly offering to the public. Each time, their requests were rejected on the grounds that the computers were the subject of expert examination and were necessary for the investigation. In a decision of 15 April 2005 the District Court, which had examined an appeal against one of the prosecutor's refusals, confirmed that the retention was necessary for the further development of the criminal proceedings and stated that the complaints regarding the personal correspondence contained in the computers were irrelevant. In a decision of 15 July 2005 the District Court examined an identical appeal against another of the prosecutor's refusals and dismissed it with similar reasoning.
3. The criminal proceedings against the first applicant
On 8 November 2005 the applicant was charged, inter alia, with the unlawful distribution of computer programmes, computer games and movies. On the same date he was interviewed.
On 22 November 2005 the prosecutor lodged an indictment before the Pazardzhik District Court. The indictment stated that in the period between 14 October 2004 and 21 February 2005 the first applicant had been managing a computer club for the rental of computer programmes, computer games and movies without having the necessary licences (Article 324 § 1 of the Criminal Code). The indictment further charged that in the same period the applicant had been reproducing the above-mentioned products without the consent of the products' rightholders and had thus had caused significant damage (Article 172a § 2 in relation to article 172a § 3 of the Criminal Code). The indictment went on to charge that the applicant had been renting pornographic movies (Article 159 § 1 of the Criminal Code).
In the ensuing proceedings the first applicant was represented by both his wife and a lawyer. The court examined several expert reports, which were not contested by the applicant.
In making a closing argument on 2 November 2006, the prosecutor referred on several occasions to the first applicant's criminal conduct as having been both the unlawful reproduction and distribution of computer programmes.
By a judgment of 2 November 2006 the District Court convicted the applicant of illegally reproducing computer programmes, computer games and movies in the period between 14 October 2004 and 21 February 2005, finding that this had led to significant damage. The court ordered the confiscation of the five computers.
In its reasoning the court stated that the applicant had committed another offence, namely the unlawful distribution of computer programmes and computer games, as he had been renting them to other individuals. It further noted, however, that as the prosecutor had not filed charges in that regard, the court could not impose the relevant penalty.
The applicant lodged an appeal with the Pazardzhik Regional Court. He contested the professional expertise of some of the expert witnesses.
By a judgment of 2 March 2007 the Regional Court upheld the District Court's judgment. The court briefly discussed the complaints of the applicant concerning significant procedural breaches, apparently also referring to the alleged lack of expertise on the part of the expert witnesses, but found them to be ill-founded.
The applicant filed a petition for review (cassation) of his conviction for illegal reproduction of computer programmes and computer games. He also requested the suspension of the confiscation of the computers and again contested the professional expertise of the expert witnesses.
By a judgment of 1 June 2007 the Supreme Court of Cassation quashed the conviction and sent the case to the District Court for fresh examination. In its reasoning the court held that on the basis of the evidence it appeared that the applicant's criminal conduct had essentially constituted the unlawful distribution of computer programmes. The court further held that the applicant had failed to provide evidence that he had title to the programmes as well as a licence for their distribution. The court also noted that the damage suffered had not been calculated correctly and that the expert report on the matter had contained contradictory information.
By a judgment of 11 January 2008 the District Court convicted the applicant and ordered the confiscation of the computers.
Both the applicant and the prosecutor appealed.
In his appeal, the applicant argued that the court had confused the charges of unlawful 'reproduction' and 'distribution' of computer programmes and games and that it had not been clear which criminal conduct he had been convicted of.
The Regional Court ordered an expert report. The expert presented her conclusions orally at a hearing on 8 April 2008. According to the record the second applicant, who had acted as the first applicant's representative, stated that she did not have any further procedural requests to make. Neither did she contest the report.
By a judgment of 8 April 2008 the Regional Court convicted the applicant and sentenced him to one year and six months' imprisonment, suspended for three years, and ordered him to pay a fine in the amount of BGN 4,000 for the unlawful reproduction of computer programmes, computer games and movies, finding that such conduct had led to significant damage.
On 14 April 2008 the second applicant, acting in her capacity as the first applicant's representative, filed an application with the court to amend the record of the hearing of 8 April 2008. She stated that she could not specify her request upon making the application but that she would do so when the court made the record available to her. On 21 April 2008 the second applicant filed another application with the court, arguing that the record should be amended to reflect the fact that the court had explicitly prohibited her from interviewing the expert. The second applicant claims that she never received a response to this application.
On 22 April 2008 the first applicant filed a cassation appeal. He complained that the report had been elaborated by an expert lacking the necessary expertise and that his representative had been barred from interviewing the expert.
By a final judgment of 22 December 2008 the Supreme Court of Cassation partially amended the conviction. The court considered that the applicant had lawfully acquired title to the computer games but that he had been distributing them illegally by renting the games to his clients. It further indicated that while the prosecutor had not raised such a charge against the applicant the reasoning of the indictment had contained factual information about rental of the games. The court held that there had been a certain confusion between the terms “reproduction” and “distribution”. It further stated, however, that the courts had established facts which referred to the distribution of the games and that the applicant had had the opportunity to defend himself against the charges. Thus the court concluded that on the basis of Article 354 § 2 (2) of the Code of Criminal Procedure 2005 it could amend the legal characterisation of the facts from reproduction to distribution of computer games.
The court confirmed the conviction as regards the reproduction of computer programmes and movies. It also confirmed the confiscation of the computers.
4. Tax proceedings against the first applicant
On 30 August 2004 the director of the local tax department imposed a fine in the amount of BGN 200 on the first applicant in his capacity as a sole trader for a breach of the rules concerning the storage of financial records. Upon the applicant's appeal, by a final judgment of 20 May 2005 the Pazardzhik Regional Court granted the appeal, stating that the offence had been minor, and overturned the imposed fine.
5. First applicant's requests to the prosecutor
On 22 February 2005 the applicant filed a request with the military prosecutor, asking that the military prosecutor open criminal proceedings for abuse of office on the part of police officer R.P., who had been in charge of the search of the applicant's garage. The applicant stated that R.P. had revealed sensitive information about the criminal proceedings against the applicant and had used it in other proceedings involving the applicant. By a final order of 10 April 2006 a prosecutor at the Supreme Cassation Prosecutor's Office dismissed the applicant's request.
On 21 March 2005 the applicant filed a request with the district prosecutor, asking that the prosecutor open criminal proceedings for the illegal distribution of computer games against S.K., who had been a representative of one of the distributors of computer games. By a final order of 21 July 2006 the appellate prosecutor dismissed the applicant's request.
On an unspecified date in 2006 the prosecutor sent a decision to the applicant regarding some of his complaints. However, the decision was mistakenly sent to the address of V.E. V.E. allegedly presented himself as the applicant upon the letter being delivered and opened and read the letter's content. The applicant filed a request with the prosecutor to open criminal proceedings against V.E. for breach of the right to correspondence, which was subsequently rejected by an order of the regional prosecutor of 11 May 2006, stating that in view of the alleged facts criminal proceedings could be opened if the applicant brought a private criminal complaint before the courts.
B. Relevant domestic law and practice
1. The Code of Criminal Procedure
a) Search and seizure
According to the Code of Criminal Procedure 1974 (“the CCP”), investigations were to be carried out by a police investigator (дознател), and not by an investigator from the judiciary, for certain types of crimes, including computer crimes (Article 171). As provided for by Article 409 § 1 of the CCP, in the case of a police investigation, criminal proceedings were considered to have been instituted with the drawing up of a report of the first investigative measure (such as inspection, search, and so forth).
At the relevant time, searches were able to be carried out at any stage in the course of an inquiry (when there was insufficient evidence to initiate a preliminary investigation) as well as during the preliminary investigation. Article 191 of the CCP provided that in the course of an inquiry a search of premises could only be conducted by an investigator in certain cases envisioned by the law: when examining the scene of the crime if there would be no other possibility of collecting and securing evidence. The relevant prosecutor was required to be informed within twenty-four hours. Paragraph 2 provided that criminal proceedings were to be considered instituted upon the drawing up of a search report.
The new Code of Criminal Procedure 2005 (“the 2005 CCP”) combines Articles 191 and 409 of the CCP and provides that criminal proceedings are to be considered instituted upon the drawing up of a report of the first investigative measure (inspection, search and seizure, interviews with witnesses) taken by an investigator when there was no possibility of collecting and securing evidence if the investigative measure was not carried out immediately (Article 212 § 2). The prosecutor should be informed about the measure within twenty-four hours (Article 212 § 3).
Article 134 § 1 of the CCP, as in force at the material time, provided that where there existed sufficient grounds to believe that certain premises contained objects or documents which might be relevant to a criminal investigation, the authorities could carry out a search and seizure operation there. According to Article 135 § 1 of the CCP, as in force at the material time, during the preliminary investigation a search and seizure operation could only have been carried out pursuant to a warrant issued by a judge of the competent first-instance court. The warrant was to be issued in ex parte proceedings, without notification of or participation by the individuals concerned. An exception to the warrant requirement was only possible in exigent circumstances, in which case the record of the search had to be produced for approval before a judge within twenty-four hours (Article135 § 2 of the CCP). The 2005 CCP contains identical provisions (Articles 160 and 161).
b) Retention of physical evidence during criminal proceedings
Pursuant to the relevant provisions as in force at the material time, physical evidence were kept by the authorities for the course of the criminal proceedings (Article 108 § 1 of the CCP). Chattels which have been collected as physical evidence could be returned to their owners before the termination of criminal proceedings only as long as the return would not hinder the establishment of the facts in the case. The request for their return was submitted to the prosecutor. In case of prosecutor's refusal the owner had a right to appeal before the court who examined the issue in camera (Article 108 §§ 2 and 4 of the CCP).
The 2005 CCP contains almost identical provisions (Article 111 §§ 1-4).
c) Amendments in the charges
Article 285 § 1 of 1974 CCP required that a prosecutor file a new indictment in cases where, at the trial stage of the proceedings, there had been grounds to substantially amend the factual basis of the charges, or to bring charges which required a more severe punishment. Under Article 285 § 3, in cases where a new indictment was necessary and the parties had so requested, the domestic court had to adjourn the hearing for further argument. Identical provisions are contained in Article 287 §§ 1 and 3 of the 2005 CCP.
Article 354 § 2 (2) of the 2005 CCP, as in force at the relevant time, provides that a cassation court may amend a conviction when it is necessary to change the characterisation of the offence to one punishable by an identical or a lower penalty.
2. Family Code 1985
At the material time, chattels which had been acquired during the marriage in principle belonged to both spouses and constituted common matrimonial property (Article 19). Chattels which had been acquired by one of the spouses during the marriage in order to serve his or her professional activities were personal property (Article 20 § 2). This rule applies, in particular, to chattels acquired by a sole trader during the marriage in order to serve his commercial activities (реш. № 143 от 13 март 2002 г. на ВКС по гр.д. № 788/2001 г., I ГО).
3. The State and Municipalities Responsibility for Damage Act 1988 (“the State Responsibility Act”)
Section 1 (1) of the State Responsibility Act, as in force at the material time, provided that the State was liable for damage suffered by private individuals as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of administrative action. According to the Supreme Court of Cassation's case-law, the actions of the investigative and the prosecuting authorities in the context of a criminal investigation do not amount to administrative action and those authorities are therefore not liable under section 1 of the Act (тълк. реш. № 3 от 22 април 2005 г. на ВКС по тълк.д. № 3/2004 г., ОСГК). According to the Supreme Administrative Court's case-law, a search and seizure record is not an administrative act and cannot be grounds for seeking damages under the State Responsibility Act (опр. № 1270 от 01.02.2010 г. на ВАС по адм.д. № 63/2010 г.).
4. The Criminal Code 1968
Article 159 § 1 provides for a punishment of up to a year's imprisonment and a fine of between BGN 1,000 and BGN 3,000 for an individual who rents pornographic material.
Article 172a § 2 of the Criminal Code, as in force at the material time, provided for a punishment of up to three years' imprisonment and a fine from BGN 1,000 to BGN 3,000 for an individual who reproduces or distributes a video record or a computer programme without the legal consent of the copyright owner. According to Article 172a § 5 the chattel used to commit the crime was to be confiscated by the State if it belonged to the convicted person.
In case the chattel in question constitutes common matrimonial property the court orders the confiscation of half of it (реш. № 69 от 14 февруари 1972 г. на ВС по н.д. № 8/1972 г., I н.о.; реш. № 266 от 18 май 2010 г. на ВКС по к.д. № 164/2010 г.).
5. Copyright and Related Rights Act
Paragraph 2 of the Additional Provisions of the Copyright and Related Rights Act provides for a definition of both reproduction and distribution of copyrighted products. According to the Act, reproduction is the direct or indirect replication in any form of a copyrighted product. Distribution means the sale, exchange, donation, rent, storage in commercial quantities or offer for sale or rent of original products or copies of products.
COMPLAINTS
1. The two applicants complained under Article 8 of the Convention that the search and seizure operation in their garage had not been conducted in accordance with the law, as the circumstances had not been exigent. They complained, in particular, that the operation was also extended to cover private documents, as the seized computers had allegedly contained letters and other documents.
2. The first applicant also complained, relying on Article 6 § 3 (c), that he had not been allowed to have his lawyer attend during the search and seizure operation.
3. The applicants complained under Article 13 of the lack of domestic remedies related to the search and seizure operation. They further complained, relying upon Article 6 § 1, that the court had refused to examine their complaint as regards the lawfulness of the search and seizure operation.
4. The applicants complained, relying upon Article 1 of Protocol No. 1 to the Convention, that the authorities had refused to return the computers during the proceedings despite the fact that they contained personal information and that the second applicant allegedly had been using them for business purposes, namely offering typewriting services to the public, and that the computers had been confiscated upon the first applicant's conviction.
5. Relying on Article 6 § 1, the applicants complained that the prosecutor had not sent one of their appeals regarding the return of the computers to the judge and had thus hindered their right of access to court. They further complained, relying upon Article 6 § 1, that one of the judges who had examined the issue had been biased because she was the judge who had confirmed the lawfulness of the search and seizure record.
6. The first applicant complained under Article 6 § 1 of the Convention that the domestic court had based its conviction on contradictory evidence and had admitted as evidence the expert reports, even though the experts who had participated in the proceedings had not possessed the necessary expertise. He also complained, relying on Article 6 § 2, that the presumption of innocence had been violated because the court had based his conviction upon assumptions.
7. The first applicant further complained under Article 6 § 1 that the length of the proceedings had been excessive.
8. The first applicant further complained under Article 6 § 3 (a) that before the commission of the search and seizure operation he had not been informed promptly and given details of the nature of the accusations against him.
9. The first applicant also complained under Article 6 § 3 (a) in relation to Article 6 § 3 (b) that the Supreme Court of Cassation had raised a new charge against him in its final judgment and that he had not had the necessary time and facilities to prepare his defence to the charge of the unlawful distribution of computer games.
10. He further complained under Article 6 § 3 (d) that he had not had the chance to examine the expert witness at the hearing of 8 April 2008.
11. The first applicant complained under Article 8 that the conviction had ruined his reputation. He complained, relying on Article 8, that a third individual, V.E., had opened the letter from the prosecutor, that the authorities had refused to institute criminal proceedings against V.E., that police officer R.P. had revealed sensitive information about the criminal proceedings against the applicant and that the authorities had failed to act in that regard.
12. The first applicant also complained that the prosecutor had refused to institute criminal proceedings against S.K.
13. The first applicant complained under Article 1 of Protocol No. 1 and Article 13 that he had suffered damage as a result of the actions of the tax assessment office.
THE LAW
1. The applicants complained, relying upon Article 8, that the search and seizure operation in the garage had not been in accordance with the law and that they had not had effective domestic remedies in this respect as required by Article 13. They also complained, relying upon Article 1 of Protocol No. 1 and Article 6 § 1, that the authorities had retained the computers during the criminal proceedings against the first applicant although the computers contained personal information and the second applicant allegedly had been using them for business purposes and that the prosecutor had not sent one of their appeals in this respect to the court and thus had hindered their right of access to court.
The Court considers that on the basis of the case file it cannot determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The Court has examined the remainder of the applicants' complaints as submitted by them. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants' complaints concerning the search and seizure operation in the garage, the lack of effective domestic remedy in that respect and the retention of the computers during the proceedings;
Declares the remainder of the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy