Last Updated on April 24, 2019 by LawEuro
Communicated on 28 February 2019
FIFTH SECTION
Application no. 71808/12
Maria Gencheva IVANOVA
against Bulgaria
lodged on 5 November 2012
STATEMENT OF FACTS
The applicant, Ms Maria Gencheva Ivanova, is a Bulgarian national, who was born in 1966 and lives in Gabrovo. She is represented before the Court by Mr Y. Yordanov, a lawyer practising in Veliko Tarnovo.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s activities
The applicant is a practicing lawyer and at the relevant time was a member of the Gabrovo Bar Association. Much of her professional activity was dedicated to representing clients in tort proceedings, and in particular proceedings concerning traffic accidents.
In 2011, together with other persons, the applicant founded a non-profit organisation – a foundation providing legal and other aid to victims of traffic accidents.
2. The search of the applicant’s home and office
In the morning of 10 May 2012 about ten police officers, including from services tasked with combatting organised crime, arrived at the applicant’s home and told her that they had a judicial warrant to conduct a search. The applicant was not shown the warrant and was not given any other explanation. After the search was completed, the police officers seized two coins which, according to the applicant, had no numismatic value.
After that the officers and the applicant went to her office, which was searched as well. The search was conducted in the presence of two certifying witnesses, who were not lawyers. Once again, the applicant was not given any explanation as to what was being searched.
The applicant objected to the search, relying on section 33 of the Bar Act (see below, “Relevant domestic law and practice”). She states that she handed over voluntarily any documents concerning the activity of the foundation she was participating in. However, the officers seized numerous other documents concerning legal cases she had been working on. The applicant’s computer, containing information on all her clients, was seized as well.
After the searches the applicant was brought to a police station, where she was briefly detained.
The applicant was not shown the judicial warrants authorising the searches of her home and her office. When she applied to receive copies of these and of other related documents, she was refused, on the ground that the case file contained classified information.
Subsequently the applicant discovered that the searches had been related to an investigation opened in May 2011 by the Gabrovo Regional Public Prosecutor’s Office. It concerned suspicions of abuse of office and was conducted against an unknown employee of the hospital in Gabrovo. The applicant discovered in addition that the search warrants only permitted the seizure of documents related to the activities of the foundation.
3. Information disseminated by the prosecution authorities
On 11 May 2012 the police in Gabrovo published the following press release:
“A special operation of the unit [combatting organised crime] and the police in Gabrovo was conducted yesterday. The anti-mafia unit had been investigating for about a year a criminal scheme, allowing the unlawful receipt of money from victims of traffic accidents. In the course of the investigation the two participants in that scheme – Y.K. (42 years old), a forensic doctor, and M.I. (46 years old), a lawyer of the Gabrovo Bar Association – were detained.
The scheme operated as follows: Y.K. put the victims in touch with M.I. with a promise that she would conduct proceedings for damages to be received from the insurer. Medical and technical expert reports were prepared for that purpose, for which the barrister paid the doctor in cash. After the award of damage in the judicial proceedings she received, again in cash, additional remuneration from her clients, varying between 10% and 20% of the damages awarded – an income which M.I. did not declare. A foundation was registered to disguise the unlawfully received means. Sometimes the lady herself put part of the unlawfully received money on its bank account, and on other occasions she instructed the victims of traffic accidents to donate a part of the compensation received to the foundation – an offence under Article 253 § 1 of the [Criminal Code]. …
During searches in premises of the Gabrovo hospital and a lawyer’s office the police seized two computers and documents related to the criminal activities of the two persons who have been detained.
The preliminary investigation concerns an offence under Section 282 § 2 of the [Criminal Code].”
A press conference was also organised by the prosecutor in charge of the case. In so far as can be seen from the ensuing media publications which quoted him, he made a statement identical to the press release above, but mentioning the applicant’s and Y.K.’s full names. In the following days the information was published in local and national newspapers.
4. Complaints lodged by the applicant
In the following days the applicant lodged complaints with the Gabrovo Regional Public Prosecutor’s Office, the Supreme Judicial Council and the Chief Public Prosecutor. She stated that the searches and the seizure of her documents had been unlawful, in particular in view of the provision of section 33 of the Bar Act. She complained in addition of the press release of 11 May 2012 and the prosecutor’s comments on the case.
In a letter to the applicant dated 8 June 2012 the Gabrovo Regional Public Prosecutor’s Office stated that the privilege under section 33 of the Bar Act did not apply to the documents related to the activities of the foundation. On 26 June 2012 the Veliko Tarnovo Appellate Public Prosecutor’s Office (superior of the Gabrovo Regional Public Prosecutor’s Office) informed the applicant that its commission on professional ethics saw no reason to interfere. Lastly, on 17 October 2012 the Chief Public Prosecutor’s Office also stated that it had found no irregularities.
In October 2012 the applicant requested that the items seized on 10 May 2012 be returned to her.
No information has been provided on the course of the proceedings after that.
B. Relevant domestic law and practice
The relevant domestic law and practice have been summarised in Gutsanovi v. Bulgaria (no. 34529/10, §§ 59-61 and 70-74, ECHR 2013 (extracts)) and Posevini v. Bulgaria (no. 63638/14, §§ 25-31 and 34-46, 19 January 2017).
In addition, section 33 of the Bar Act 2004 provides that a barrister’s files and papers are inviolable and cannot be checked or seized.
Article 282 § 2 of the Criminal Code criminalizes abuse of office by a public official, and Article 253 § 1 criminalises money laundering.
COMPLAINTS
The applicant complains under Article 8 of the Convention that the searches of her home and her office were unlawful and disproportionate. She also complains under Article 13 of the Convention that she lacked effective domestic remedies in that regard.
The applicant complains that the statements made by the prosecutor in charge of her case breached her right to be presumed innocent, guaranteed by Article 6 § 2 of the Convention, as well as her right to private life under Article 8.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right to respect for her private life and home, contrary to Article 8 of the Convention, on account of the searches of her home and office carried out on 10 May 2012 and the seizure of her chattels? Did the applicant have at her disposal effective domestic remedies for her complaint under Article 8, as required by Article 13 of the Convention?
In that relation the Government are requested to submit any declassified documents concerning the searches and the seizure.
2. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case, in view of the statement to the press of the prosecutor in charge of the investigation against the applicant? Did that statement breach in addition the applicant’s right to private life, guaranteed under Article 8 of the Convention?
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