Last Updated on November 21, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no. 38482/11
Todor Stoyanov KOLEV
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 1 October 2019 as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President,
Yonko Grozev,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 8 June 2011,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Todor Stoyanov Kolev, is a Bulgarian national who was born in 1959 and lives in Veliko Tarnovo. He was represented before the Court by Ms V. Koeva, a lawyer practising in Veliko Tarovo.
2. The Bulgarian Government (“the Government”) were represented by their Agents, Ms M. Dimitrova and Ms I. Sotirova, of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Events leading to the search of the premises of the applicant’s company
4. The applicant, an accountant, is the owner and manager of the company Cont Consult EOOD, which is based in Veliko Tarnovo and provides accounting services.
5. In 2010 the prosecution authorities in Veliko Tarnovo opened criminal proceedings against several individuals suspected of usury. The investigation showed that the money obtained through usury was being invested in several companies created with the purpose of concealing its origin. It was also established that Cont Consult EOOD was providing accounting services to some of these companies.
6. On 15 April 2011, on an application by the prosecuting authorities, the Veliko Tarnovo Regional Court issued a search warrant authorising the search of the premises of Cont Consult EOOD, as well as parts of the same building where the applicant and his family lived. It noted that criminal proceedings had been opened against several persons for usury and money laundering and that the proceeds of crime had been invested in several companies. Some of these companies, as well as their suppliers, were clients of Cont Consult EOOD. There were thus sufficient grounds to believe that a search of the latter’s premises would yield relevant evidence. The domestic court also authorised the seizure of “money, personal belongings, hardware and documents” related to the suspects’ companies and relevant to the investigation, and of documents related to other companies which had been their suppliers.
7. Search warrants concerning the premises of other persons were also issued, and the searches were scheduled for 18 April 2011.
2. The search and seizure of 18-19 April 2011
8. In the morning of 18 April 2011 police officers and tax inspectors, led by an investigator of the Veliko Tarnovo Regional Investigation Service, arrived at the premises of Cont Consult EOOD. They were accompanied by a computer specialist, as well as by two cadets in a military school in the city who were to act as certifying witnesses. Since the applicant was away, the group awaited his return.
9. The search warrant was read out to the applicant on his arrival. He stated that he would cooperate, and presented documents concerning one of the companies under investigation. When asked to provide additional documents on the latter’s suppliers, he said that his company did not keep any. The police officers who searched the premises did not find any such documents in hard copy. They then started searching the computers in the office, where they found some of the documents they were looking for, as well as data relating to deleted files. They announced that they would seize the computers and the servers. The applicant explained that this would significantly hinder the work of his company and requested that he be given an opportunity to copy some of the information. The search-and-seizure operation was thus interrupted to allow the copying to be carried out. It was resumed and completed the next day.
10. As a result of the search, the police seized numerous documents and all of the company’s computers and servers. The search-and-seizure record contains an objection by the applicant, who stated that much of the seized material did not concern the companies under investigation.
11. During the search police officers entered the parts of the building inhabited by the applicant’s family and checked their personal belongings. The applicant and his company’s employees were prohibited from answering their telephones and from leaving the premises. The applicant was not allowed to check on his elderly mother, who lived in the same building.
12. In May 2011 a lawyer’s office, a client of Cont Consult EOOD, complained to the Veliko Tarnovo Regional Public Prosecutor’s Office about the seizure of documents concerning it, stating that these contained privileged information on its clients. The applicant also submitted three letters sent by other clients of his company complaining of the quality of its service in April 2011.
3. Attempts by the applicant to recover the items seized from his company’s premises
13. In the morning of 19 April 2011 a lawyer retained by the applicant lodged with the Veliko Tarnovo Regional Public Prosecutor’s Office – which was supervising the investigation – a request under Article 111 of the Code of Criminal Procedure (see paragraph 28 below) for the return of the items seized from the premises of Cont Consult EOOD. She pointed out that the search and seizure had been hugely disproportionate in view of the requirements of the investigation, that the computers contained information on numerous other clients of the company and, lastly, that the absence of the computers and the data stored on them was impeding the company’s work. In the afternoon of the same day the lawyer submitted a further request for the return of three computers, a memory stick and a server, pointing out that they were needed urgently by the company and did not contain any information relevant to the investigation.
14. As no response to those requests was received in the following days, the lawyer submitted a further request on 26 April 2011, pointing out that the company’s work continued to be impeded.
15. 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 until the items had been examined by experts. Nevertheless, the two prosecutors stated that the applicant should be allowed to copy the information necessary for his company’s work with other clients.
16. The applicant copied the information in question on 30 April 2011.
17. On different dates in April and May 2011 Cont Consult EOOD bought new computers and other equipment.
18. On 2 and 12 May 2011 the applicant again requested, under Article 111 of the Code of Criminal Procedure, the return of the items seized from the premises of Cont Consult EOOD.
19. In a decision dated 3 June 2011 two prosecutors from the Veliko Tarnovo Regional Public Prosecutor’s Office refused the applicant’s request. They pointed out that the computers contained data on the accounting of the companies under investigation, and that the experts appointed to examine them had not yet completed their reports.
20. The applicant appealed against that decision and that of 26 April 2011 (see paragraph 15 above). In a final decision of 24 June 2011 the Veliko Tarnovo Regional Court upheld the refusals, noting that the computers represented physical evidence and could only be returned once the experts appointed by the prosecuting authorities had finished examining them. It further noted that the bodies carrying out the search and seizure had not exceeded the terms of the search warrant.
21. On 17 November 2011 the applicant submitted a new request under Article 111 of the Code of Criminal Procedure. In a decision dated 7 December 2011 two prosecutors from the Veliko Tarnovo Regional Public Prosecutor’s Office ordered the return of some of the items seized from the premises of his company. As to the remainder, they found that a computer, a server and a hard disk contained data which was relevant to the investigation and thus represented physical evidence. Several computers had also been found to contain unlicensed software and were to be retained, since they could constitute the object of another criminal or administrative offence.
22. On 23 January 2012, on an appeal by the applicant, the above decision was upheld by the Veliko Tarnovo Regional Court.
23. On 12 December 2012 the applicant requested once again the return of the items which continued to be retained by the prosecution authorities. He pointed out that a lengthy period of time had passed since their seizure in April 2011.
24. In a decision of 18 December 2012 two prosecutors from the Veliko Tarnovo Regional Public Prosecutor’s Office refused to return the items, pointing out that they were considered to be physical evidence. It was also noted that the experts had managed to restore some deleted files which had been created by Cont Consult EOOD and which represented fictitious contracts used for the purpose of tax evasion.
25. The applicant did not appeal against the above decision, and has not subsequently sought the return of the seized items. He submitted an undated statement from the company providing IT services to his own company, explaining that the computers and equipment seized in 2011 were no longer compatible with the current state of technology.
4. The course of the criminal proceedings
26. In December 2012 the criminal investigation in the context of which the premises of Cont Consult EOOD had been searched was taken over by a prosecution office specialised in organised crime. At the time of the parties’ submissions to the Court the criminal proceedings were still pending. The applicant himself has not been charged, nor has it been alleged that he was suspected of committing any offence.
B. Relevant domestic law and practice
27. The relevant domestic law concerning search and seizure in the context of criminal proceedings has been summarised in Posevini v. Bulgaria (no. 63638/14, §§ 25-31, 19 January 2017).
28. In addition, Article 111 of the Code of Criminal Procedure stipulates that physical evidence must be retained until the end of the criminal proceedings. It can be released earlier to authorised persons if that does not hinder the establishment of the facts. A refusal by the prosecutor to release the evidence can be appealed against before the first-instance courts.
COMPLAINTS
29. The applicant complained under Article 8 of the Convention about the search of his company’s premises and the seizure and retention of numerous items. He contended that the search had been disproportionate because the authorities had seized data which were unrelated to its aims, and equipment which contained information on other clients of the company as well as personal information. The applicant also relied on Article 6 of the Convention, arguing that his requests for the return of the seized items had not been examined effectively. Lastly, he complained under Article 13 of the Convention that he did not have any effective domestic remedy with regard to his remaining complaints.
THE LAW
30. The Court is of the view that the complaints fall to be examined under Article 8 and Article 13 of the Convention, which read as follows:
Article 8
“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.”
Article 13
“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
1. The Government
31. The Government argued that the applicant had not exhausted the available domestic remedies. They considered that it had been open to him to bring a tort action against the prosecuting authorities and to seek compensation for any damage resulting from the allegedly disproportionate search and seizure and from the retention of the items which had been seized.
32. The Government argued that the interference with the applicant’s rights under Article 8 of the Convention had been lawful and had pursued the legitimate aim of prevention of crime. The prosecution authorities had obtained a prior judicial warrant and the search and seizure had been carried out within the framework of an ongoing criminal investigation. Moreover, the operation had been carried out in accordance with the requirements of the law, and the restrictions imposed on the applicant – the instructions not to leave the premises and not to contact other persons – were lawful and designed to prevent any obstruction of the investigation. Any unjustified seizure of data relating to third parties had been liable to affect their rights rather than those of the applicant. As to the alleged seizure of personal information, the applicant had never specified what this was and had never raised the matter before the national authorities.
33. The Government pointed out that only eleven days after the search and seizure, namely on 30 April 2011, the applicant had been allowed to copy all the information necessary for the work of his company. As to his company’s computers, which had been retained for a longer period, it was significant that all the requests to return them had been examined by the relevant authorities quickly and adequately. The retention of the data had been necessary for the examination of the computers by experts. Such examination, carried out in a laboratory, was a guarantee against any misuse of the information contained on the computers.
2. The applicant
34. The applicant argued that he had not had any effective domestic remedy at his disposal.
35. He considered that the judicial warrant authorising the search of his company’s premises had been phrased too broadly and had allowed for excessive interference with his rights. Moreover, the manner in which the search and seizure had been carried out had exceeded the authorisation given in the warrant, because the prosecuting authorities had seized all of his company’s computers and servers, while it was “natural” to suppose that these also contained information on other clients. Moreover, it was “normal” to assume that the computers also contained personal information. Furthermore, the police officers had unnecessarily entered the parts of the building where the applicant’s family lived. In addition, the fact that the certifying witnesses were cadets in the city’s military school meant that their participation was not an effective procedural guarantee.
36. The applicant claimed that the search-and-seizure operation had resulted in his company losing clients and had humiliated him in the eyes of his neighbours, who had witnessed him and his family being “treated like dangerous criminals”.
37. As to the retention of his company’s computers and equipment, the applicant argued that it had not been necessary, in particular because the Government had failed to submit the expert reports showing the results of their examination. He explained that he had eventually lost interest in the return of these items, after several unsuccessful attempts to obtain their return. This latter statement was made in December 2018.
B. The Court’s assessment
1. Article 8 of the Convention
38. The Court takes note of the objection of non-exhaustion of domestic remedies raised by the Government on the ground that the applicant had not brought a tort action against the prosecuting authorities (see paragraph 31 above). However, it finds that it is not necessary to examine that objection, since it considers that the complaints raised by the applicant are at all events inadmissible for the reasons set out below.
39. The applicant complained, in the first place, of the search of his company’s premises and the seizure of numerous items. His complaint concerned, in the second place, the lengthy retention by the prosecution authorities of some of these items, namely computers and other equipment (see paragraph 29 above).
40. As to the search, the Court observes that a search of residential and business premises entailing the seizure of equipment containing electronic data is an interference with the rights to private life, home and correspondence of those concerned, as guaranteed under Article 8 of the Convention (see Posevini, cited above, § 65 with further references).
41. Turning to the present case, the Court notes that the search and seizure were based on the relevant provisions of the Code of Criminal Procedure, and that the search-and-seizure operation was carried out on the basis of a prior judicial warrant (see paragraphs 6 and 27-28 above). The interference with the applicant’s rights under Article 8 of the Convention was thus “in accordance with the law”. Moreover, since it took place in the course of a criminal investigation, that interference served a legitimate aim under Article 8 § 2 of the Convention, namely the prevention of crime (see Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, § 55, ECHR 2007‑IV, and M.N. and Others v. San Marino, no. 28005/12, § 75, 7 July 2015).
42. The salient question is thus whether the interference was “necessary in a democratic society”.
43. In that context, in earlier cases the Court has examined whether domestic law laid down effective safeguards against abuse or arbitrariness, and whether those safeguards had operated properly in practice (see Iliya Stefanov v. Bulgaria, no. 65755/01, § 38, 22 May 2008; Vinci Construction and GTM Génie Civil et Services v. France, nos. 63629/10 and 60567/10, § 66, 2 April 2015; and Amarandei and Others v. Romania, no. 1443/10, § 218, 26 April 2016). In that regard, it does not suffice to note that a search is based on a judicial warrant. It also matters whether that prior judicial scrutiny was properly carried out, whether the judge duly examined the existence of a reasonable suspicion and was satisfied that the search could yield relevant evidence, and whether the search warrant was drawn up in such a way as to keep its impact within reasonable bounds (see Posevini, cited above, § 70, with further references).
44. The Court is satisfied that the above requirements were met in the case at hand. When issuing a judicial warrant, the Veliko Tarnovo Regional Court gave sufficient reasons for its conclusion that a search of the premises of the applicant’s company was necessary, pointing out that the company had been providing accounting services to some of the companies under investigation, and concluding that a search could thus yield relevant evidence (see paragraph 6 above). Moreover, the search was evidently based on a reasonable suspicion that criminal offences had been committed.
45. The Court does not consider that the search warrant was couched in overly broad terms, noting that it only allowed the seizure of materials connected with the companies under investigation and their suppliers. In addition, while the warrant did allow the search of the applicant’s home and not merely the premises of his company (see paragraph 6 above), it should be noted that both were situated in the same building, and it does not appear unreasonable to assume that some materials relating to the company might be found in the residential parts of the building. The scope of the search of the applicant’s home was furthermore limited by reference to the offences being investigated, thus circumscribing the discretion of the officers carrying it out (see Posevini, cited above, § 72). The Court is consequently satisfied that the search warrant of 15 April 2011 was drawn up in such a manner as to keep its impact within reasonable bounds.
46. The applicant further argued that, notwithstanding the wording of the warrant, the search and seizure had been carried out in a disproportionate manner (see paragraphs 35-36 above). The Court, however, does not find that this was so and that the authorities acted excessively. In particular, while it is true that as a result of the search the police officers seized all the computers and servers in the office, some of which turned out subsequently not to contain information relevant to the investigation, this could only be established once the computers had been examined by experts. Such examination appears particularly warranted in the light of the fact that during the search some of the computers were found to contain data relating to deleted files (see paragraph 9 above).
47. The applicant also contested the search on the ground that the authorities had seized information concerning third parties (see paragraph 35 above). The Court explained in the preceding paragraph why it considered the decision to seize all the computers and servers and have them examined by experts to be reasonable. Moreover, it agrees with the Government’s argument (see paragraph 32 above) that the allegedly unjustified seizure of data concerning third parties was liable to affect the rights of those parties rather than the rights of the applicant. One of those parties itself complained to the prosecuting authorities (see paragraph 12 above). As to any personal information concerning the applicant which may have been the subject of seizure, the Government noted (see paragraph 32 above) that the applicant had never specified what that information might be, nor had he raised the matter with the national authorities.
48. It is also significant that on 18 April 2011 the search was interrupted and the applicant was allowed to copy some of the information necessary for his company’s work. The search was resumed the next day (see paragraph 9 above). The applicant was allowed to copy the remaining relevant information soon after that (see paragraphs 15-16 above). This would inevitably have reduced any negative impact of the search and seizure on his work.
49. The Court does not consider that the personal restrictions imposed on the applicant, which were provided for by law (see Posevini, cited above, § 30) – the instructions not to leave the office and not to contact anyone during the search – were unreasonable or unnecessary. They appear even more relevant in the light of the fact that the premises of several companies were being searched at the same time (see paragraph 7 above).
50. As to other guarantees against abuse, the Court notes that two certifying witnesses were present during the search and seizure (see paragraph 8 above). The applicant pointed out that they were cadets in a military school (see paragraph 35 above), but for the Court this fact alone is not sufficient to prove any partiality on their part.
51. Lastly, the applicant argued that the search and seizure had impacted on his good name and reputation and his company’s business (see paragraph 36 above). It is true that some of the company’s clients complained of the quality of its services in April 2011 (see paragraph 12 above), but it has not been shown that these or other clients actually withdrew their custom. At all events, any such negative repercussions cannot be imputed to the authorities. As noted above, there is no indication of abuse or arbitrariness on their part.
52. The Court therefore finds that the search of the premises of the applicant’s company on 18 and 19 April 2011 and the seizure of numerous items was not disproportionate, and that the safeguards against abuse and arbitrariness provided for under domestic law operated properly in practice.
53. Accordingly, this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
54. The applicant further complained about the lengthy retention of the computers and servers seized from his company’s premises (see paragraph 29 above). Some of these items, seized in April 2011, were returned to him in December 2011 (see paragraphs 21-22 above), and the remainder were still being held by the prosecuting authorities at the time of the most recent submissions from the applicant in December 2018 (see paragraph 37 above). The authorities justified the retention by the need to have the equipment examined by experts and, after that examination had been completed, by the fact that some of the computers and servers were considered to be physical evidence (see paragraphs 15 and 19-24 above). On one occasion it was also noted that some of the computers had been found to contain unlicensed software (see paragraph 21 above). After December 2012 the applicant lost interest in having the computers and servers returned to him (see paragraph 25 above).
55. The Court observes that it has not been informed of the value of the retained computers and servers, and that at an unspecified moment in time their return became pointless because they were no longer compatible with the most recent technologies (see paragraph 25 above).
56. It further notes that it has not been specified whether the items in issue were the property of the applicant or of his company, which has a separate legal personality and is not itself an applicant. It is significant that the new equipment necessary for its work was bought by the company itself (see paragraph 17 above).
57. In these circumstances, in so far as the retention of the items may have represented an interference with the applicant’s own rights under Article 8 of the Convention, the Court cannot conclude that any such interference was disproportionate.
58. Accordingly, this part of the complaint is also 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
59. Having declared the complaints under Article 8 of the Convention inadmissible, the Court concludes that the applicant had no arguable claim for the purposes of Article 13 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 24 October 2019.
Milan Blaško Gabriele Kucsko-Stadlmayer
Deputy Registrar President
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