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FIFTH
SECTION
CASE OF THE ASSOCIATION FOR EUROPEAN INTEGRATION AND HUMAN RIGHTS
AND EKIMDZHIEV v. BULGARIA
(Application
no. 62540/00)
JUDGMENT
STRASBOURG
28
June 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of the Association for European Integration and Human
Rights and Ekimdzhiev v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 5 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 62540/00) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) on 13 September 2000. It was lodged by the
Association for European Integration and Human Rights, a non profit
association founded in March 1998 and having its registered office in
Plovdiv (“the applicant association”) and by Mr Mihail
Ekimdzhiev, a Bulgarian national who was born in 1964 and lives in
Plovdiv (“the second applicant”).
- The
applicant association was represented by the second applicant, who is
a lawyer and who acted pro se. The Bulgarian Government (“the
Government”) were represented by their Agent, Ms M. Kotseva, of
the Ministry of Justice.
- The
applicants alleged that the Bulgarian legislation allowing the use of
secret surveillance measures infringed their rights under Articles 6
§ 1, 8 and 13 of the Convention, as it fell short of the
standards stemming from the Court's case law under these
provisions.
- On
10 June 2005 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- One
of the principal aims of the applicant association is the protection
of human rights. The second applicant is a lawyer. His practice
includes acting as counsel in civil and criminal cases in the courts
in Plovdiv and representing applicants in proceedings before the
European Court of Human Rights.
- Their
application is directed against the Special Surveillance Means Act of
1997, a piece of legislation which presently regulates the use of
special means of surveillance in Bulgaria. The applicants do not aver
that surveillance measures have in fact been ordered or implemented
against them, nor that they have been indirectly involved in a
surveillance measure directed against other persons. They contend
that under the law as it stands they may be subjected to such
measures at any point in time without any notification prior to,
during, or after the said measures are applied.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution of 1991
- The
relevant provisions of the Constitution of 1991 are:
Article 32
“1. The private life of citizens shall
be inviolable. Everyone shall have the right to be protected against
unlawful interferences with his private and family life and against
encroachments on his honour, dignity and reputation.
2. No one may be spied on, photographed,
filmed, recorded, or subjected to similar actions without his or her
knowledge or despite his or her express disagreement, except in cases
provided for by law.”
Article 33 § 1
“The home shall be inviolable. No one may enter or
remain in it without the consent of its inhabitant, except in the
cases expressly specified by law.”
Article 34
“1. The freedom and secret of
correspondence and other communications shall be inviolable.
2. This rule may be subject to exceptions
only with the permission of the judicial authorities when necessary
for uncovering or preventing serious offences.”
Article 41 § 2
“Citizens shall have the right to information from
state bodies or agencies on any matter of legitimate interest to
them, unless the information is a state secret or a secret protected
by law, or affects the rights of others.”
Article 117 § 2
“The judiciary shall be independent. In carrying
out their duties the judges, the jurors, the prosecutors and the
investigators shall have regard solely to the law.”
B. The Special Surveillance Means Act of 1997
- The
Special Surveillance Means Act of 1997 („Закон
за специалните
разузнавателни
средства“
– “the SSMA”), which presently is the principal
legislative enactment regulating the use of special means of
surveillance, was adopted in October 1997. It underwent minor
amendments in August 1999 and June 2000, more extensive ones in
February 2003, and some further minor changes in April 2006. Its
essential provisions have however remained intact since its adoption
and the account which follows is based on their present version.
- The
SSMA governs the conditions for and the manner of use of special
means of surveillance, as well as the control of their use and of the
results obtained thereby (section 1(1)). It defines special means of
surveillance as technical devices which can be used for creating
photographs, audio and video recordings and marked objects, as well
as the methods for operating them (section 2(1)).
- By
section 3(1) of the SSMA, special means of surveillance may be used
when necessary to prevent or uncover serious offences (Article 93
§ 7 of the Criminal Code of 1968 defines a “serious”
offence as one punishable by more than five years' imprisonment), if
the requisite intelligence cannot be obtained through other means.
Section 4 provides that special means of surveillance may also be
used for activities relating to national security.
- Special
means of surveillance may be used against persons suspected, on the
basis of the information available, of planning, committing, or
having committed serious offences, or against persons who might be
unwittingly involved in the above by the suspected perpetrators. Such
means may also be used against persons and objects related with
national security (section 12(1)). Such means may also be used in
respect of persons who have agreed to that in writing, to protect
their lives or property (section 12(2)).
- Only
the following bodies may request the use of special means of
surveillance and draw on the intelligence obtained thereby, in the
spheres of their respective competencies: (i) the central “Security”
and “Police” services of the Ministry of Internal
Affairs, as well as the national and territorial directorates of that
Ministry; (ii) the “Military Information” and “Military
Police and Military Counter Intelligence” services of the
Ministry of Defence; (iii) the National Intelligence Service; (iv)
the National Investigation Service, the Sofia Investigation Service
and the regional investigation services; (v) the Prosecutor General,
the Supreme Cassation Prosecutor's Office, the Supreme Administrative
Prosecutor's Office, the Military Appellate Prosecutor's Office, the
appellate prosecutor's offices, the Sofia City Prosecutor's Office
and the regional and regional military prosecutor's offices
(section 13(1) and (2)).
- The
procedure for deploying special means of surveillance starts with a
written application by the head of the respective service. The
application must set out in detail the circumstances grounding the
suspicion that a serious offence is being planned or committed or has
been committed, so as to justify the use of surveillance. It must
also fully describe the steps which have already been undertaken and
the results of the hitherto inquiries or investigations. It has to
contain information allowing the identification of the persons or
objects to be subjected to surveillance, its duration, and the
methods to be used. Finally, the application has to specify the name
of the official to be informed of the results obtained (section
14(1)).
- The
application is made to the president of the Sofia City Court or of
the respective regional court, or to a duly authorised deputy (for
military personnel the application is made to the president of the
deputy president of the respective military regional court) who
may issue a warrant (section 15(1)). If they refuse to issue a
warrant, the application may be re submitted to the president or
a duly authorised deputy of the respective court of appeals
(section 15(3)). The decision whether or not to issue a warrant
must be taken immediately upon receipt of the application, and the
originals of the application and of the warrant must be returned to
the service which has made the application (section 15(2)).
- After
the warrant is issued, the Minister of Internal Affairs or a
deputy minister designated in writing by the Minister makes a
written order for the deployment of special means of surveillance
(section 16). In urgent cases, this step of the procedure may be
skipped and the deployment may start immediately upon the issue of
the warrant (section 17). However, in that case the Minister or the
deputy minister must be informed without delay (ibid.).
- Section
18(1) of the SSMA provides for an exception to the procedure outlined
above in cases where there is an immediate risk that a serious
intentional offence may be committed or where there is an immediate
threat to national security. In such cases, the Minister of Internal
Affairs or a deputy minister designated by the Minister may
order the deployment of special means of surveillance without a
judicial warrant. The deployment of these means must be discontinued
if the warrant is not issued within twenty four hours (section
18(2)). In that case, the president or the vice president of the
respective court decides whether the material obtained is to be kept
or destroyed (ibid.). He or she may thus retrospectively validate the
use of special means of surveillance (section 18(3)).
- The
Minister of Internal Affairs or a deputy minister authorised in
writing may discontinue the use of special means of surveillance at
any time before the planned end of the surveillance. In that case,
the president or the vice president of the respective court must
be informed in writing (section 19).
- The
only services which are authorised to deploy special means of
surveillance are the “Operative and Technical Information”,
the “Operative Tracking” and the “Protection of the
Means of Communication” directorates of the Ministry of
Internal Affairs (section 20(1)). However, the National Intelligence
Service and the intelligence services of the Ministry of Defence may
also deploy such means in the performance of their duties
(section 20(2)).
- Special
means of surveillance may be used for a maximum of two months
(section 21(1)). This time may, if necessary, be extended by the
president or the vice president of the respective court for up
to six months, by a fresh warrant (section 21(2)).
- The
use of special means of surveillance must be discontinued after the
expiry of the time limit set in the warrant, after the desired
aims have been attained, or if the use of the means proves fruitless
(section 22(1)).
- The
intelligence obtained by such means must be recorded (section 24).
It must then, immediately after being obtained, be put down in
writing by the service which has in fact deployed the means (section
25(1)). The resulting document, which must faithfully reflect the
contents of the recordings, is sent to the body which has requested
the use of such means, possibly along with photographs and recordings
(section 25(2), (3) and (4)). While the special means of surveillance
are still being used, the original recordings must be kept at the
service which has deployed them (section 25(5)).
- If
at the end of the period of authorised surveillance the sought
intelligence has been obtained, the service which has deployed the
means of surveillance draws up a note of physical evidence (section
27). The same is done if the sought intelligence has been obtained
before the end of the period, pursuant to the written request of the
body which has requested the measures (section 26). Conversely, if
the use of the means is fruitless, the body which has requested it
advises in writing the service which deploys them that their use is
to be discontinued. In that case no note of physical evidence is
drawn up and the material obtained is destroyed (section 28(1) and
(2)).
- The
note of physical evidence must conform to the requirements of the
Code of Criminal Procedure (section 29(1)). It has to be signed by
the head of the service which has deployed the means (section 29(2))
and refer to the application for their use, the order of the Minister
or the deputy minister and the judicial warrant (section 29(3)).
It has to specify the time and place of the use of the means, the
types of devices and methods employed, the intelligence obtained, the
textual reproduction of this intelligence, and the physical
conditions under which the intelligence has been acquired (section
29(4)). The raw data is part of the record (section 29(5)). The
evidence thus obtained is kept by the Ministry of Internal Affairs
pending the opening of a criminal investigation. After the opening of
an investigation the evidence is kept by the respective judicial
authorities (section 31(1) and (2)). The intelligence which is not
used as evidence has to be destroyed by the directorate which has
deployed the means within ten days and the destruction has to be
recorded in minutes (section 31(3)).
- If
the special means of surveillance have yielded results outside the
scope of the initial application for their use and if these results
come within the purview of other bodies allowed to request the use of
such means (see paragraph 12 above), the Minister of Internal Affairs
or the duly authorised deputy minister must be notified
immediately. He or she then decides how this intelligence is to be
used (section 30).
- The
information obtained by using special means of surveillance may not
be used for ends other than the prevention and detection of offences,
or the gathering of evidence for the perpetration of offences, in
accordance with the conditions and the manner specified by the law
(section 32).
- All
persons who come across information about the use of special means of
surveillance under the conditions and according to the manner set out
in the SSMA, or intelligence obtained thereby, are under a duty not
to disclose it (section 33).
- The
overall control over the use of special means of surveillance and the
intelligence obtained thereby is entrusted to the Minister of
Internal Affairs, who may issue instructions for the application of
the SSMA (section 34(1) and paragraph 2 of the concluding provisions
of the Act). The directorates which deploy these means may also carry
out inspections to check whether special means of surveillance have
been unlawfully used (section 34(2)).
- To
date, no instructions or regulations on the implementation of the
SSMA have been published in the State Gazette.
C. The Constitutional Court's judgment in case no.
17/1997
- In
a judgment of 10 February 1998, published in the State Gazette on
17 February 1998 (реш. №
1 от 10 февруари
1998 г. по конституционно
дело № 17 от 1997 г.,
обн., ДВ, бр. 19 от
17 февруари 1998 г.)
the Constitutional Court rejected an application by the
Prosecutor General to declare sections 18(1), 19, 30 and 34(1)
of the SSMA contrary to Articles 34 § 2 and 117 § 1 of
the Constitution.
- The
court started by noting that the special means of surveillance
regulated by the SSMA amounted to interferences with private life,
home and correspondence, all of which were permissible under
Articles 32 § 2, 33 and 34 § 2 of the Constitution
(see paragraph 7 above).
- The
court then proceeded to examine section 18(1) of the SSMA, which
allows, under certain conditions, the use of special means of
surveillance before the issue of judicial warrant. It held that
Article 34 § 2 of the Constitution could not be read as
requiring the prior issue of warrant in every case. The risk of abuse
by the executive was reduced by the facts that the possibility of
dispensing with prior judicial control was narrowly circumscribed and
that immediate subsequent control was mandatory. This state of
affairs was also compatible with Article 8 of the Convention and
Article 17 of the International Covenant on Civil and Political
Rights. In the court's view, the SSMA provided an even higher level
of protection than these instruments.
- As
regards section 19 of the SSMA, the court found that the possibility
for the Minister of Internal Affairs to discontinue the use of
special means of surveillance was not violative of Article 117 §
2 of the Constitution. While by Article 34 § 2 of the
Constitution and section 15 of the SSMA the judiciary alone was
empowered to authorise the use of such means, it was not the only
branch of government which could order the termination of their use.
The prerogative of the Minister did not therefore impinge on the
independence of the judiciary.
- With
regard to section 30 of the SSMA, the court held that its true
meaning, when read in the context of the Act as a whole, was not that
the Minister of Internal Affairs could order the use of special means
of surveillance anew if intelligence outside the scope of the initial
request for their use was obtained. It was rather to be construed as
allowing the Minister to decide to which authority to forward the
intelligence already obtained. His powers in this respect were thus
not in breach of Article 117 § 2 of the Constitution.
- Concerning
section 34(1) of the SSMA, which entrusts the overall control over
the system to the Minister of Internal Affairs, the court noted that
it was impossible to empower another minister, let alone a
non executive body, with such functions, because that would
disrupt the equality between, and the independence of, the three
branches of government. This followed also from paragraph 2 of the
concluding provisions of the SSMA, which allowed the Minister to
issue instructions for its application. Moreover, the logic of the
system, which was apparent from the wording of section 31 of the Act,
required that the Minister be made responsible for controlling the
use of the special means of surveillance until the moment when the
intelligence obtained thereby was given to the judicial authorities.
Therefore, the judicial control over the intelligence thus gathered
had not been infringed and the resulting situation was compatible
with Article 117 § 2 of the Constitution.
- Two
judges dissented in part.
- One
of them was of the opinion that section 34(1) of the SSMA, which
entrusts the control over the use of special means of surveillance to
the Minister of Internal Affairs, was unconstitutional. In his view,
this provision was not sufficiently precise and the powers it
conferred to the Minster were not clearly delineated. It followed
from the reading of the SSMA as a whole that the Minister had powers
in respect of both the use and the control over the use of special
means of surveillance, which was inadmissible. The resulting lack of
external control meant that section 34(1) was unconstitutional. When
the law spoke about control over the system, it meant control over
both its functioning as a whole and control in specific cases. To
bestow controlling functions to the Minister, who also played a key
part in the operation of the system, did not provide sufficient
safeguards against the unwarranted use of special means of
surveillance.
- The
other dissenting judge considered that section 18(1) of the SSMA was
unconstitutional, in that it allowed the Minister of Internal Affairs
to order the use of special means of surveillance without the prior
issue of judicial warrant, even in cases when their use would
interfere with the freedom of correspondence or other communications.
In his view, Article 34 § 2 of the Constitution, which protects
those freedoms, required prior judicial authorisation in all cases.
D. The Codes of Criminal Procedure of 1974 and 2005
- Articles
111 13a of Code of Criminal Procedure of 1974 (“the Code
of 1974”) also regulated the use of special means of
surveillance in the context of pending or impending criminal
proceedings. They coincided almost verbatim with the provisions of
the SSMA. One difference was that Article 111b § 6 provided that
the judge who issued the warrant had to be informed in writing when
the use of the means was discontinued. If their use had been
fruitless, he or she was to order the destruction of the material
obtained.
- These
provisions were superseded by Articles 172 77 of the Code of
Criminal Procedure of 2005 (“the Code of 2005”), which
entered into force on 29 April 2006.
- By
Article 172 §§ 1 and 2 of the Code of 2005, the
investigation authorities may use special means of surveillance for
investigating certain serious offences, which are exhaustively
listed, if the relevant facts cannot be established in another manner
or if their establishment would be extremely difficult. Such means
may be used for a maximum duration of two months (Article 175 §
3), which may, if needed, be extended by four months (Article 175 §
4).
- The
procedure starts with a reasoned application made by the prosecutor
in charge of the case (Article 173 § 1). The application must
contain information about the offence under investigation, a
description of the hitherto investigative steps and their results,
information about the persons or objects which will be subjected to
surveillance, the methods which will be used and the duration of the
surveillance (Article 173 § 2). The surveillance warrant is
issued under the hand of the president of the respective regional
court or of a specifically authorised deputy (Article 174 §
1). He or she must issue the warrant or refuse to do so immediately
after receiving the application, and give reasons (Article 174 § 3).
If he or she refuses, the application may be re submitted to the
president of the respective court of appeals or a specifically
authorised deputy (Article 174 § 4). All applications and
warrants are recorded in a special non public register (Article
174 § 6). The Code of 2005 makes no provision for exceptions
from this procedure save in the case of an undercover agent, who may,
in urgent cases, start to operate pursuant to a prosecutor's order,
which must be confirmed by the respective judge within twenty four
hours (Article 173 § 4).
- After
the issue of warrant the special means of surveillance are deployed
in accordance with the provisions of the SSMA (Article 175 § 1).
The judge who issued the warrant must be informed in writing when the
use of the means is discontinued. If their use has been fruitless,
the judge orders the destruction of the material obtained (Article
175 § 6).
E. Relevant provisions of the Protection of Classified
Information Act of 2002
- The
Protection of Classified Information Act of 2002 („Закон
за защита на
класифицираната
информация“
– “the PCIA”), which was enacted in April 2002 and
amended several times thereafter, provides a comprehensive framework
for the creation, processing and storage of classified information,
as well as the conditions and the procedure for providing access to
such information (section 1(1)). “Classified information”
includes information which is a state or an official secret (section
1(3)).
- Section
25 defines a “state secret” as the “information set
out in Schedule No. 1 [to the Act], the unregulated access to which
could endanger or prejudice the interests of the Republic of Bulgaria
and which relates to the national security, the defence, the foreign
policy, or the protection of the constitutional order”.
Schedule No. 1 to the Act sets out a list of the categories of
information which are liable to be classified as being a state
secret. Thus, the information about special means of surveillance
(technical devices and/or the manner of their use) used pursuant to
the law is a state secret (point 6 of part II of Schedule No. 1). So
is the intelligence obtained as a result of the use of such means
(point 8 of part II of Schedule No. 1).
- Section
26(1) defines an “official secret” as the “information
created or stored by state or local government authorities, which is
not a state secret, but the unregulated access to which could have a
negative impact on the interests of the State or on another legally
protected interest”. By section 26(2), the information
classified as an “official secret” must be set out in a
statute.
- Section
34(1) lays down time limits for protecting classified
information. They vary from thirty years for information marked as
“highly secret” to two years for information graded as an
“official secret”. These time limits may be
extended, but by not more than the double of their original length
(section 34(2)). After the expiration of these time limits the
access to this information is effected in accordance with the Access
to Public Information Act of 2000 (section 34(3)).
- While
the information is classified, it may be accessed only under certain
conditions and by limited categories of persons, which must, in most
cases, undergo a security check and obtain a security clearance
(sections 36 71).
- Section
33(3) provides that classified information may not be destroyed
earlier than one year after the expiration of the time limit for
its protection. The destruction of such information is possible only
by virtue of a decision of the State Information Security Commission,
made pursuant to the proposal of a special commission (section
33(4)). The Commission's decision is subject to review by the Supreme
Administrative Court (section 34(5)).
F. The judgment of the Supreme Administrative Court in
case no. 9881/2003
- In
a final judgment of 12 February 2004 (реш.
№ 1195 от 12 февруари
2004 г. по адм. д. №
9881/2003 г.), given pursuant to an appeal by a person
who had been refused information on whether the use of special means
of surveillance had been authorised against him during the period
1 January 1996 – 1
November 2001, the Supreme Administrative Court held that
while Article 41 of the Constitution enshrined the right to obtain
information from a state body, that right was subject to limitations
when, for instance, this information was a state or an official
secret. It was apparent from section 33 of the SSMA that information
about the use of special means of surveillance was not to be
disclosed. The refusal to provide the requested information was thus
compatible with Article 32 § 2 of the Constitution and Article 8
of the Convention. The appellant's argument that the refusal had been
in breach of the Protection of the Personal Data Act of 2002 was
inapposite, because the material gathered pursuant to the SSMA was
outside the purview of the Protection of the Personal Data Act of
2002, as was the information whether the use of special means of
surveillance had been authorised. The appellant's further arguments
that the information requested was not a state or an official secret
within the meaning of sections 25 and 26 of the PCIA and could
moreover be divulged because of the expiry of the two year
time limit under section 34(1)(4) of that Act were likewise
unavailing, because that Act did not apply retroactively.
G. The judgment of the Supreme Administrative Court in
case no. 996/2004
- In
a final judgment of 15 May 2004 (реш.
№ 4408 от 15 май 2004 г. по
адм. д. № 996/2004 г.),
given pursuant to an appeal by the same person as in case no.
9881/2003 (see paragraph 49 above), concerning a further refusal to
inform him of measures of covert surveillance against him, the
Supreme Administrative Court held that his request for such
information had properly been denied, because the information
relating to special means of surveillance and the intelligence
obtained by using them was a state secret within the meaning of
section 25 of the PCIA and points 6 and 8 of part II of Schedule No.
1 to the PCIA (see paragraphs 43 45 above). On the other hand,
the eventual intelligence obtained pursuant to a warrant to use
special means of surveillance, as well as the warrant itself, were an
official secret within the meaning of section 26(1) of the PCIA. This
followed also from the prohibition to divulge information about
special means of surveillance laid down in section 33 of the SSMA.
The court went on to hold that the fact that the use of special means
of surveillance could only be authorised by the presidents of the
regional courts was sufficient to ensure independent judicial review
of the activities of the executive and provided sufficient safeguards
against unwarranted restriction on the citizens' rights.
H. The Criminal Code of 1968
- Article
145a § 1 of the Criminal Code of 1968 criminalises the use of
information obtained through special means of surveillance for ends
other than protecting national security or combating crime. The
offence is aggravated if it has been committed by officials who have
acquired or have come across this information in connection with the
performance of their duties (paragraph 2 of that Article). It is
furthermore an offence to unlawfully use information obtained through
such means with a view to misleading a judicial authority (Article
287a § 1 (4) of the Code). There is no reported case law on
the application of these texts.
I. Relevant official reports and newspaper publications
- In
the end of 2000 the Supreme Cassation Prosecutor's Office carried out
a special inquiry on the use of special means of surveillance by the
Ministry of Internal Affairs during the period 1 January 1999 –
1 January 2001. While the inquiry was pending, the prosecutor in
charge gave an interview, published in the daily Trud on 24
November 2000, in which he said that the Ministry of Internal Affairs
was obstructing the inquiry. The report of the inquiry, which was
finalised in January 2001, was presented to the National Assembly,
the Council of Ministers, the Supreme Judicial Council and the
Ministry of Internal Affairs, but was apparently not made available
to the general public. Nevertheless, some of the report's findings
were leaked to and reported by several daily newspapers. The report
stated that the overall number of warrants for the use of special
means of surveillance during the period 1 January 1999 – 1
January 2001 was just over 10,000, and that not including tapping of
mobile phones. Out of these, only 267 or 269 had subsequently
supplied evidence for use in criminal proceedings. In 243 cases
special means of surveillance had been used against persons in
respect of whom there had been no grounds for suspecting that they
had committed a serious intentional offence. In a number of cases the
orders for the deployment of such means had not been signed by the
Minister of Internal Affairs himself, but by unknown persons on his
behalf. In 36 cases the dates of the applications for warrants and of
the warrants themselves had been modified. In 28 cases the warrants
had not been assigned a number. In some cases the warrants had
authorised measures implemented more than twenty four hours
before their issue. In two cases the persons in respect of whom the
warrants had been issued were not the persons under investigation.
- In
an interview published by the daily Trud on 26 January 2001
the Minster of Internal Affairs said that during his thirteen months
in office he had signed 4,000 orders for the use of special means of
surveillance.
- During
the period December 2002 – February 2003 various newspaper
publications reported a number of cases where it was alleged that the
services of the Ministry of Internal Affairs had unlawfully used
special means of surveillance. The allegations included illegal
tapping of the telephones of opposition leaders, journalists, a
former constitutional court judge, and other judges. In an interview
published on 11 December 2002 the Minister of Justice stated that “a
tremendously high number of wiretappings take place in Bulgaria, but
apparently for aims different from those of the criminal process”.
THE LAW
I. ADMISSIBILITY
A. The parties' submissions
- The
Government disputed the applicant association's status as a victim
within the meaning of Article 34 of the Convention. In their view,
legal persons could not invoke the protection of Article 8 of the
Convention. The Government relied on the former Commission's decision
in the case of Scientology Kirche Deutschland v. Germany (no.
34614/97, Commission decision of 7 April 1997, unreported).
- The
applicants replied that even if it were to be admitted that legal
persons could not have a private or family life within the meaning of
Article 8 of the Convention, the same was not true of
correspondence, in the form of mail or of telephone or electronic
communications. They further pointed out that the applicant
association was a “human rights watchdog”. It mounted
strategic human rights cases, which was often viewed with resentment
and hostility by the authorities. Several lawyers, widely known for
their criticism of the authorities, were working on staff. Domestic
and international human rights organisations, as well as people
seeking legal advice, some of whom were prisoners, accounted for a
large part of its correspondence. There was therefore a reasonable
likelihood that its communications – which in practice were
indistinguishable from those of the lawyers working for it –
could have been monitored. Moreover, as these communications were
between lawyers and clients and their monitoring could have an
incidence on the rights enshrined in Article 6 of the Convention, the
Court had to apply a more rigorous standard in assessing the
potential interference with them.
B. The Court's assessment
- Article
34 of the Convention provides, as relevant:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. ...”
- The
Court considers that this case closely resembles the cases of Klass
and Others v. Germany, Malone v. the United Kingdom, and
Weber and Saravia v. Germany. In all these cases the Court
found that to the extent that a law institutes a system of
surveillance under which all persons in the country concerned can
potentially have their mail and telecommunications monitored, without
their ever knowing this unless there has been either some
indiscretion or subsequent notification, it directly affects all
users or potential users of the postal and telecommunication services
in that country. The Court therefore accepted that an individual may,
under certain conditions, claim to be the victim of a violation
occasioned by the mere existence of secret measures or of legislation
permitting them, without having to allege that such measures were in
fact applied to him or her (see Klass and Others, judgment of
6 September 1978, Series A no. 28, pp. 16 20, §§
30 38; Malone v. the United Kingdom, judgment of 2 August
1984, Series A no. 82, p. 31, § 64; and Weber and Saravia v.
Germany ((dec.), no. 54934/00, §§ 78 and 79, ECHR
2006 ...).
- In
line with its holdings in these cases, the Court finds that the
second applicant, being an individual, can claim to be victim, within
the meaning of Article 34, on account of the very existence of
legislation in Bulgaria permitting secret surveillance. It notes in
this connection that the applicants do not contend that measures of
surveillance were actually applied to them; it is therefore
inappropriate to apply a reasonable likelihood test to determine
whether they may claim to be victims of a violation of their Article
8 rights (see Halford v. the United Kingdom, judgment of 25
June 1997, Reports of Judgments and Decisions 1997 III,
pp. 1018 19, §§ 55 57).
- As
regards the applicant association, the Court notes that it has
already held that a legal person is entitled to respect for its
“home” within the meaning of Article 8 § 1 of the
Convention (see Société Colas Est and Others v.
France, no. 37971/97, § 41, ECHR 2002 III; Buck v.
Germany, no. 41604/98, § 31, 28 April 2005; and Kent
Pharmaceuticals Limited and Others v. the United Kingdom (dec.),
no. 9355/03, 11 October 2005). The applicant association is
therefore, contrary to what the Government suggest, not wholly
deprived of the protection of Article 8 by the mere fact that it is a
legal person. While it may be open to doubt whether, being such a
person, it can have a “private life” within the meaning
of that provision, it can be said that its mail and other
communications, which are in issue in the present case, are covered
by the notion of “correspondence” which applies equally
to communications originating from private and business premises (see
Halford, cited above, p. 1016, § 44; Aalmoes and
Others v. the Netherlands (dec.), no. 16269/02, 25 November 2004;
and Weber and Saravia, cited above, § 77, with further
references). The former Commission has already held, in circumstances
identical to those of the present case, that applicants who are legal
persons may fear that they are subjected to secret surveillance. It
has accordingly accepted that they may claim to be victims (see
Mersch and Others v. Luxembourg, nos. 10439 41/83,
10452/83 and 10512/83 and 10513/83, Commission decision of 10 May
1985, Decisions and Reports (DR) 43, p. 34, at pp. 113 14). The
applicant association is therefore entitled to the protection
afforded by Article 8.
- Furthermore,
unlike the situation obtaining in the cases of Scientology Kirche
Deutschland (cited above) and Herbecq and Association “Ligue
des droits de l'homme” v. Belgium (nos. 32200/96 and
32201/96, Commission decision of 14 January 1998, DR 92 A, p.
92), the Article 8 rights in issue in the present case are those of
the applicant association, not of its members. There is therefore a
sufficiently direct link between the association as such and the
alleged breaches of the Convention. It follows that it can claim to
be a victim within the meaning of Article 34 of the Convention.
- The
Government's objection must therefore be rejected.
- The
Court further considers that the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention, nor inadmissible on any other grounds. It must therefore
be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants alleged that by giving the authorities a wide discretion
to gather and use information obtained through secret surveillance
and by failing to provide sufficient safeguards against abuse, the
SSMA entailed by its very existence a violation of Article 8 of the
Convention. Article 8 reads, as relevant:
“1. Everyone has the right to respect
for his private ... life ... 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.”
A. The parties' submissions
- The
applicants conceded that the Constitution of 1991 and the SSMA
provided a basis for the impugned interference with their Article 8
rights. However, they were of the view that this was not enough to
justify the interference as being “in accordance with the law”.
The Court's case law required a very detailed national law on
secret surveillance, and was even more demanding when it came to
monitoring of lawyers and their offices. Sections 16, 18(1) and 34 of
the SSMA were particularly problematic in this respect. Indeed, in
his dissenting opinion a constitutional court judge had found that
section 34(1) of the SSMA, which entrusted control over the system of
secret surveillance solely to the Minister of Internal Affairs, did
not provide sufficient safeguards against arbitrary interferences
with the rights to private life and correspondence. This lack of
effective control was further reinforced by the blurred provisions of
section 34(2) of the SSMA. Similarly, section 30 of the Act gave
the Minister full discretion to decide what to do with intelligence
falling outside the scope of the initial application for the use of
special means of surveillance. So did a number of other texts.
Section 18 of the SSMA did not map out a procedure for informing the
judiciary that surveillance had started without its prior sanction,
nor a procedure for acquainting them with the intelligence gathered.
Moreover, this provision allowed the Minister to make an unlimited
number of consecutive orders for surveillance, thus making possible
monitoring without judicial sanction for prolonged periods of time.
The SSMA did not provide for judicial control of the destruction of
material not used as evidence in criminal proceedings, nor for
control over the obligation of the services deploying special means
of surveillance to discontinue their use pursuant to the request of
the agency which has requested them. The Act did not set out in
detail the procedures for obtaining ex post facto judicial
authorisation of surveillance ordered by the Minister of Internal
Affairs in urgent cases, for transcribing the raw data obtained, and
for destroying the unused data. It did not prohibit the issuing of
consecutive warrants on the basis of the same facts, and thus allowed
the circumvention of the six month time limit for
surveillance.
- Concerning
the necessity of the interference, the applicants pointed out that
the number of secret surveillance measures was extremely high, as
evidenced by the report of the Supreme Cassation Prosecutor's Office
and various interviews given by high ranking officials. So was
the number of breaches of the SSMA. Another material circumstance was
the complete lack of notification of the persons concerned and the
attendant impossibility of obtaining any information on the matter.
- The
Government submitted that the interference was allowed by the
Constitution of 1991 and the SSMA and was intended to protect
national security and prevent disorder and crime. By law, special
means of surveillance could only be used in respect of a limited
class of persons. There was a special procedure to safeguard against
arbitrary action. It included a reasoned application to a judge, who
was the only official with the power to authorise the use of special
means of surveillance. Exceptions from this prior judicial control
were only possible in urgent cases. Even in such cases the
surveillance had to be ordered by the Minister of Internal Affairs
and approved ex post facto by a judge. In 1997 the SSMA had
been the subject of a challenge before the Constitutional Court,
which had found it compatible with the Constitution of 1991. The fact
that the law did not provide for the notification of the persons
concerned was fully compatible with this Court's holding in the case
of Klass and Others (cited above). The applicants' reliance on
the report of the Supreme Cassation Prosecutor's Office was
misguided, because this report related only certain cases where the
SSMA had been breached and was accordingly not pertinent for
determining the issue before the Court in the instant case.
- In
sum, the Government were of the view that, while abuses could not
fully be ruled out, the SSMA provided adequate guarantees against
unlawful infringements of the rights of individuals. It was beyond
doubt that averting and uncovering certain offences and protecting
national security was unthinkable without the use of special means of
surveillance. The SSMA kept the delicate balance between these aims
and respect for the rights enshrined by Article 8 of the Convention.
B. The Court's assessment
1. Was there an interference
- Having
regard to its established case law in the matter (see Klass
and Others, p. 21, § 41; Malone, p. 31, § 64;
and Weber and Saravia, §§ 77 79, all cited
above), the Court accepts that the existence of legislation allowing
secret surveillance amounts in itself to an interference with the
applicants' rights under Article 8 of the Convention. Indeed, this
point was not disputed by the parties.
- It
is therefore necessary to examine whether this interference is
justified under the terms of paragraph 2 of that Article: whether it
is “in accordance with the law” and “necessary in a
democratic society” for one of the purposes enumerated in that
paragraph.
2. Was the interference justified
- The
expression “in accordance with the law”, as used in
Article 8 § 2, does not only require that the impugned
measure should have some basis in domestic law. It also refers to the
quality of this law, demanding that it should be accessible to the
person concerned, who must moreover be able to foresee its
consequences for him or her, and compatible with the rule of law
(see, among many other authorities, Malone, cited above,
Kruslin v. France, judgment of 24 April 1990, Series A
no. 176 A, p. 20, § 27; Huvig v. France, judgment of
24 April 1990, Series A no. 176 B, p. 52, § 26; Kopp
v. Switzerland, judgment of 25 March 1998, Reports 1998 II,
p. 540, § 55; and Amann v. Switzerland [GC], no.
27798/95, § 50, ECHR 2000 II).
- It
is obvious that the SSMA provides a legal basis for the interference.
The first requirement does not therefore raise any problem.
- The
second requirement, that the law be accessible, does not raise any
problem either.
- As
to the third requirement, the law's foreseeability and compatibility
with the rule of law, the Court notes the following principles
emerging from its case law.
- In
the context of covert measures of surveillance, the law must be
sufficiently clear in its terms to give citizens an adequate
indication of the conditions and circumstances in which the
authorities are empowered to resort to this secret and potentially
dangerous interference with the right to respect for private life and
correspondence (see, among other authorities, Malone, cited
above, p. 32, § 67; Valenzuela Contreras v. Spain,
judgment of 30 July 1998, Reports 1998 V, p. 1925, §
46 (iii); and Khan v. the United Kingdom, no. 35394/97, §
26, ECHR 2000 V). In view of the risk of abuse intrinsic to any
system of secret surveillance, such measures must be based on a law
that is particularly precise. It is essential to have clear, detailed
rules on the subject, especially as the technology available for use
is continually becoming more sophisticated (see Kruslin, p.
23, § 33; Huvig, p. 55, § 32; Amann, §
56 in fine; and Weber and Saravia, § 93, all cited
above).
- To
ensure the effective implementation of the above principles, the
Court has developed the following minimum safeguards that should be
set out in statute law to avoid abuses: the nature of the offences
which may give rise to an interception order; a definition of the
categories of people liable to have their communications monitored; a
limit on the duration of such monitoring; the procedure to be
followed for examining, using and storing the data obtained; the
precautions to be taken when communicating the data to other parties;
and the circumstances in which data obtained may or must be erased or
the records destroyed (see Weber and Saravia, cited above,
§ 95, with further references).
- In
addition, in the context of secret measures of surveillance by public
authorities, because of the lack of public scrutiny and the risk of
misuse of power, the domestic law must provide some protection
against arbitrary interference with Article 8 rights (see Klass
and Others, cited above, pp. 25 26, §§ 54 56;
mutatis mutandis, Leander v. Sweden, judgment of 26
March 1987, Series A no. 116, pp. 25 27, §§ 60 67;
Halford, cited above, p. 1017, § 49; Kopp, cited
above, p. 541, § 64; and Weber and Saravia, cited
above, § 94). The Court must be satisfied that there exist
adequate and effective guarantees against abuse. This assessment
depends on all the circumstances of the case, such as the nature,
scope and duration of the possible measures, the grounds required for
ordering them, the authorities competent to permit, carry out and
supervise them, and the kind of remedy provided by the national law
(see Klass and Others, cited above, p. 23, § 50).
- Turning
to the facts of the present case, the Court notes that, while in
certain respects Bulgarian law fully comports with the above
requirements, in other respects it falls short.
- The
SSMA circumscribes the purposes for which covert monitoring may be
used: preventing or uncovering serious offences or protecting
national security (see paragraph 10 above; see also Klass and
Others, cited above, p. 24, § 51; and Christie v. the
United Kingdom, no. 21482/93, Commission decision of 27 June
1994, DR 78 A, p. 119, at pp. 121 22). Moreover, such
monitoring may be used only if there are grounds to suspect that a
serious offence is being planned or is or has been committed, and
only if the establishment of the facts by other methods are deemed
unlikely to succeed (see paragraph 10 above; see also Klass and
Others, cited above, p. 24, § 51). However, these
latter requirements apparently apply only with regard to combating
criminal conduct, not protecting national security (see paragraph 10
above).
- Surveillance
may only be allowed pursuant to a written application giving reasons,
which may be made solely by the heads of certain services. The
application must identify the persons or objects to be placed under
surveillance. It must also set out the grounds for suspecting these
persons of planning, or committing, or having committed an offence.
Finally, the application must specify the duration of the proposed
surveillance and the methods to be used, as well as all hitherto
investigative steps (see paragraph 13 above).
- The
warrant authorising the surveillance can be issued only under the
hand of the president or the vice president of a regional court,
a military regional court, or a court of appeals (see paragraphs 14
above). This judicial authorisation must in principle be given before
the surveillance has taken place. It must also, as a rule, be
followed by an order of the Minister of Internal Affairs or a
specifically designated deputy (see paragraph 15 above).
- Exceptions
from the procedure outlined above are only possible in urgent cases:
the authorisation is then given by the Minister of Internal Affairs
or a specifically designated deputy. However, a judicial warrant must
be issued not more than twenty-four hours after that (see paragraph
16 above). Despite the applicants' allegations, it is apparent that
the SSMA envisages that this exception is to be used sparingly and
only in duly justified cases.
- Surveillance
may be authorised for a maximum of two months. This time limit
may be extended, up to six months, only pursuant to a fresh
application and warrant (see paragraph 19 above).
- It
thus seems that during the initial stage, when surveillance is being
authorised, the SSMA, if strictly adhered to – in particular,
if care is taken not to stretch the concept of “national
security” beyond its natural meaning (see Christie,
cited above, p. 134; and, mutatis mutandis, Al-Nashif
v. Bulgaria, no. 50963/99, § 124, 20 June 2002) –,
provides substantial safeguards against arbitrary or indiscriminate
surveillance. However, the Court must also examine whether such
safeguards exist during the later stages, when the surveillance is
actually carried out or has already ended. On this point, it notes
the following elements.
- Unlike
the system of secret surveillance under consideration in the case of
Klass and Others (cited above, p. 31, § 70; see also
Weber and Saravia, § 57), the SSMA does not provide for
any review of the implementation of secret surveillance measures by a
body or official that is either external to the services deploying
the means of surveillance or at least required to have certain
qualifications ensuring his independence and adherence to the rule of
law. Under the SSMA, no one outside the services actually deploying
special means of surveillance verifies such matters as whether these
services in fact comply with the warrants authorising the use of such
means, or whether they faithfully reproduce the original data in the
written record. Similarly, there exists no independent review of
whether the original data is in fact destroyed within the legal
ten day time limit if the surveillance has proved fruitless
(see, as examples to the contrary, Klass and Others, p. 11, §
20; and Weber and Saravia, § 100; and Aalmoes and
Others, all cited above). On the contrary, it seems that all
these activities are carried out solely by officers of the Ministry
of Internal Affairs (see paragraphs 18, 21 and 22 above). It is true
that the Code of 1974 provided, in its Article 111b § 6, that
the judge who had issued a surveillance warrant had to be informed
when the use of special means of surveillance has ended. So does
Article 175 § 6 of the Code of 2005. It is also true that there
is an obligation under section 19 of the SSMA to inform the issuing
judge when the use of special means of surveillance has been
discontinued before the end of the authorised period (see paragraphs
38 and 42 above). However, the texts make no provision for
acquainting the judge with the results of the surveillance and do not
command him or her to review whether the requirements of the law have
been complied with. Moreover, it appears that the provisions of the
Codes of 1974 and 2005 are applicable only in the context of pending
criminal proceedings and do not cover all situations envisaged by the
SSMA, such as the use of special means of surveillance to protect
national security.
- Another
point which deserves to be mentioned in this connection is the
apparent lack of regulations specifying with an appropriate degree of
precision the manner of screening of the intelligence obtained
through surveillance, or the procedures for preserving its integrity
and confidentiality and the procedures for its destruction (see, as
examples to the contrary, Weber and Saravia, §§
45 50; and Aalmoes and Others, both cited above).
- The
Court further notes that the overall control over the system of
secret surveillance is entrusted solely to the Minister of Internal
Affairs (see paragraph 27 above) – who not only is a political
appointee and a member of the executive, but is directly involved in
the commissioning of special means of surveillance –, not to
independent bodies, such as a special board elected by the Parliament
and an independent commission, as was the case in Klass and Others
(cited above, p. 12, § 21 and pp. 24 25, § 53), or a
special commissioner holding or qualified to hold high judicial
office, as was the case in Christie (cited above, pp. 123-30,
135 and 137), or a control committee consisting of persons having
qualifications equivalent to those of a Supreme Court judge, as was
the case in L. v. Norway (no. 13564/88, Commission decision of
8 June 1990, DR 65, p. 210, at pp. 215 16 and 220). A dissenting
judge in the Constitutional Court had serious misgivings about this
complete lack of external control (see paragraph 36 above; and,
mutatis mutandis, Al-Nashif, cited above, § 127).
- Moreover,
the manner in which the Minister effects this control is not set out
in the law. Neither the SSMA, nor any other statute lays down a
procedure governing the Minister's actions in this respect. The
Minister has not issued any publicly available regulations or
instructions on the subject (see paragraph 28 above). Moreover,
neither the Minister, nor any other official is required to regularly
report to an independent body or to the general public on the overall
operation of the system or on the measures applied in individual
cases (see, as examples to the contrary, Klass and Others, p.
12, § 21 in limine and p. 25, § 53; Christie,
pp. 123 28 and 137; and L. v Norway, p. 216, all cited
above).
- The
Court further notes that if the intelligence gathered falls outside
the scope of the application for the use of special means of
surveillance, it is the Minister of Internal Affairs who decides,
discretionarily and without any independent control, what is to be
done with it (see paragraph 24 above; see also, mutatis mutandis,
Kopp, cited above, p. 543, § 74). By contrast, German
law, as modified by the German Federal Constitutional Court,
subjected the transmission of intelligence to other services to very
strict conditions and entrusted the responsibility of checking the
existence of these conditions to an official qualified to hold
judicial office. Compliance with the relevant requirements was also
reviewed by the special independent commission set up under German
law (see Weber and Saravia, cited above, §§ 125 28).
- Finally,
the Court notes that under Bulgarian law the persons subjected to
secret surveillance are not notified of this fact at any point in
time and under any circumstances. According to the Court's case law,
the fact that persons concerned by such measures are not apprised of
them while the surveillance is in progress or even after it has
ceased cannot by itself warrant the conclusion that the interference
was not justified under the terms of paragraph 2 of Article 8, as it
is the very unawareness of the surveillance which ensures its
efficacy. However, as soon as notification can be made without
jeopardising the purpose of the surveillance after its termination,
information should be provided to the persons concerned (see Klass
and Others, p. 27, § 58; mutatis mutandis, Leander,
p. 27, § 66; and, more recently, Weber and Saravia, §
135, all cited above). Indeed, the German legislation in issue in the
cases of Klass and Others and Weber and Saravia, as
modified by the German Federal Constitutional Court, did provide for
such notification (see Klass and Others, p. 8, § 11 and
p. 11, § 19; and Weber and Saravia, §§
51 54). The position in the Leander case was similar
(see, mutatis mutandis, Leander, cited above, pp.
14 15, § 31).
- By
contrast, the SSMA does not provide for notification of persons
subjected to surreptitious monitoring under any circumstances and at
any point in time. On the contrary, section 33 of the SSMA, as
construed by the Supreme Administrative Court, expressly prohibits
the disclosure of information whether a person has been subjected to
surveillance, or even whether warrants have been issued for this
purpose (see paragraphs 26, 49 and 50 above). Indeed, such
information is considered classified (see paragraphs 43 45, 49
and 50 above). The result of this is that unless they are
subsequently prosecuted on the basis of the material gathered through
covert surveillance, or unless there has been a leak of information,
the persons concerned cannot learn whether they have ever been
monitored and are accordingly unable to seek redress for unlawful
interferences with their Article 8 rights. Bulgarian law thus eschews
an important safeguard against the improper use of special means of
surveillance.
- Having
noted these shortcomings, the Court must now verify, in so far as the
available information permits, whether they have an impact on the
actual operation of the system of secret surveillance which exists in
Bulgaria. In this connection, the Court notes that the Bulgarian
Supreme Cassation Prosecutor's Office apparently found, in a report
of January 2001, that numerous abuses had taken place. According to
this report, more than 10,000 warrants were issued over a period of
some twenty four months, from 1 January 1999 to 1 January 2001,
and that number does not even include the tapping of mobile
telephones (for a population of less than 8,000,000). Out of these,
only 267 or 269 had subsequently been used in criminal proceedings. A
significant number of breaches of the law had been observed (see
paragraph 52 above). Additionally, in an interview published on 26
January 2001 the then Minster of Internal Affairs conceded that he
had signed 4,000 orders for the deployment of means of secret
surveillance during his thirteen months in office (see paragraph 53
above). By contrast, in Malone (cited above, p. 25, § 53
and p. 36, § 79), the number of the warrants issued was
considered relatively low (400 telephone tapping warrants and less
than 100 postal warrants annually during the period 1969 79, for
more than 26,428,000 telephone lines nationwide). These differences
are telling, even if allowance is made for the development of the
means of communication and the rise in terrorist activities in recent
years. They also show that the system of secret surveillance in
Bulgaria is, to say the least, overused, which may in part be due to
the inadequate safeguards which the law provides. By contrast, in
Klass and Others (cited above, p. 28, § 59) and in
Christie (cited above, p. 137) there were no indications that
the practice followed was not in strict accordance with the law.
- Against
this background, the Court concludes that Bulgarian law does not
provide sufficient guarantees against the risk of abuse which is
inherent in any system of secret surveillance. The interference with
the Article 8 rights of the applicants was therefore not “in
accordance with the law” within the meaning of paragraph 2 of
that provision. This conclusion obviates the need for the Court to
determine whether the interference was “necessary in a
democratic society” for one of the aims enumerated therein (see
Malone, p. 37, § 82; Kruslin, p. 25, § 37;
Huvig, p. 57, § 36; and Khan, § 28, all cited
above).
- There
has therefore been a violation of Article 8 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants alleged that owing to the lack of information on whether
they had been subjected to secret surveillance they were prevented
from seeking any redress therefor, in breach of Article 13 of the
Convention. Article 13 reads:
“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.”
- Neither
the applicants, nor the Government have made submissions on this
complaint.
- Article
13 of the Convention requires that where a person has an arguable
claim to be the victim of a violation of the rights set forth in the
Convention, they should have a remedy before a national authority in
order both to have their claim decided and, if appropriate, to obtain
redress (see, among many other authorities, Leander, cited
above, p. 29, § 77 (a)).
- Having
regard to its findings under Article 8 of the Convention, the Court
considers that the applicants' complaint has raised an arguable claim
under the Convention and that, accordingly, they were entitled to an
effective remedy in order to enforce their rights under that Article
(ibid., p. 30, § 79).
- According
to the Convention organs' case law, in the context of secret
surveillance an effective remedy under Article 13 means a remedy that
is as effective as can be having regard to the restricted scope for
recourse inherent in such a system (see Klass and Others, p.
31, § 69; mutatis mutandis, Leander, p. 30, §
78 in fine; and Mersch and Others, p. 118, all
cited above). The Court must therefore verify whether there exist
under Bulgarian law remedies which are effective in this limited
sense. In this connection, the Court notes that review of
surveillance may intervene at three stages: when it is first ordered,
while it is being carried out, or after it has been terminated.
- It
is obvious that when surveillance is ordered and while it is under
way, no notification of the persons concerned is possible, as such
notification would jeopardise the surveillance's effectiveness. They
are therefore of necessity deprived of the possibility to challenge
specific measures ordered or implemented against them. However, this
does not mean that it is altogether impossible to provide a limited
remedy – for instance, one where the proceedings are secret and
where no reasons are given, and the persons concerned are not
apprised whether they have in fact been monitored – even at
this stage. Examples of such remedies may be found in Klass and
Others, where individuals believing themselves to be under
surveillance could, albeit in exceptional cases, complain to the
commission overseeing the system of secret surveillance and also
apply to the German Federal Constitutional Court (see Klass and
Others, cited above, p. 31, § 70; see also Weber and
Saravia, § 57), in Christie, where recourse was
possible to a special tribunal (see Christie, cited above,
pp. 122 23, 128 29 and 136 37), in Mersch and
Others, where it was possible to appeal to the Council of State
(see Mersch and Others, cited above, p. 118), and in L. v.
Norway, where complaints were possible to a control committee
(see L. v. Norway, cited above, pp. 216 and 220). By contrast,
Bulgarian law does not provide any such mechanism, nor does it
contain, as already found (see paragraphs 84 92 above), a
sufficiently effective apparatus for controlling the use of special
means of surveillance.
- As
regards the availability of remedies after the termination of the
surveillance, the Court notes that, unlike the legislation in issue
in Klass and Others, and Weber and Saravia, as modified
by the German Federal Constitutional Court (see Klass and Others,
p. 8, § 11; and Weber and Saravia, §§ 51 54
and 136, both cited above), the SSMA does not provide for
notification of the persons concerned at any point in time and under
any circumstances. On the contrary, in two judgments of 12 February
and 15 May 2004 the Supreme Administrative Court held that the
information whether a warrant for the use of means of secret
surveillance had been issued was not to be disclosed. The second
judgment stated that such information was classified (see paragraphs
49 and 50 above). It thus appears, that, unless criminal proceedings
have subsequently been instituted or unless there has been a leak of
information, a person is never and under no circumstances apprised of
the fact that his or her communications have been monitored. The
result of this lack of information is that those concerned are unable
to seek any redress in respect of the use of secret surveillance
measures against them.
- Moreover,
the Government have not provided any information on remedies –
such as an application for a declaratory judgment or an action for
damages – which could become available to the persons concerned
if they find out about any measures against them (see Hewitt and
Harman v. the United Kingdom, no. 12175/86, Commission's
report of 9 May 1989, DR 67, p. 103, § 55). In Klass and
Others the existence of such remedies was not open to doubt (see
Klass and Others, p. 31, § 71; see also Weber and
Saravia, § 61, both cited above).
- In
view of the foregoing considerations, the Court concludes that
Bulgarian law does not provide effective remedies against the use of
special means of surveillance. There has therefore been a violation
of Article 13 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained under Article 6 § 1 of the Convention that
because by law they were not to be apprised at any point in time of
the use of special means of surveillance against them, they could not
seek redress against that in the courts. Article 6 § 1 provides,
as relevant:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law.”
- Neither
the applicants, nor the Government have made submissions on this
complaint.
- The
first issue to be decided is the applicability of Article 6 § 1.
The Court notes that it did not express an opinion on the matter in
its judgment in the case of Klass and Others, where a similar
complaint was made (see Klass and Others, cited above, pp.
32 33, § 75). However, the former Commission did rule on it
in its report in the same case. It found that Article 6 § 1
was not applicable either under its civil or under its criminal limb
(see Klass and Others, Report of the Commission, Series B no.
26, pp. 35 37, §§ 57 61). The Court does not
perceive anything in the circumstances of the present case that can
alter that conclusion.
- There
has therefore been no violation of Article 6 § 1 of the
Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants stated that they asked the Government to ensure that the
legislation on the use of special means of surveillance be brought in
line with the standards stemming from the Court's case-law within six
months. Failing that, they claimed 5,000 euros (EUR) in non pecuniary
damages.
- The
Government have not made submissions on these claims.
- The
Court reiterates that, in the context of the execution of judgments
in accordance with Article 46 of the Convention, a judgment in which
it finds a violation of the Convention or its Protocols imposes on
the respondent State a legal obligation not just to pay those
concerned any sums awarded by way of just satisfaction, but also to
choose, subject to supervision by the Committee of Ministers, the
general and/or, if appropriate, individual measures to be adopted in
its domestic legal order to put an end to the violation found by the
Court and make all feasible reparation for its consequences in such a
way as to restore as far as possible the situation existing before
the breach (see, among other authorities, Assanidze v. Georgia
[GC], no. 71503/01, § 198, ECHR 2004 II; and Ilaşcu
and Others v. Moldova and Russia [GC], no. 48787/99, § 487,
ECHR 2004 VII). Furthermore, in ratifying the Convention, the
Contracting States undertake to ensure that their domestic law is
compatible with it (see Maestri v. Italy [GC], no. 39748/98, §
47, ECHR 2004 I). The Court sees no reason to presume at this
juncture that the Government will not comply with their obligation
under Article 46 § 1 of the Convention to abide in a timely
fashion by the Court's judgment, once it has become final and
binding. It therefore sees no reason to make any award to the
applicants.
B. Costs and expenses
- The
applicants did not make a specific claim for the reimbursement of
costs and expenses and, stating that the case had involved a
considerable amount of work, left the matter to the discretion of the
Court.
- The
Government did not express an opinion on the matter.
- The
Court notes that all the submissions in the case were drafted by the
manager of the applicant association and by the second applicant. The
Court cannot make an award in respect of the hours the applicants
themselves spent working on the case, as this time does not represent
costs actually incurred by them (see Steel and Morris v. the
United Kingdom, no. 68416/01, § 112, ECHR 2005 II,
with further references). On the other hand, the Court considers it
reasonable to assume that the applicants have incurred certain
expenses for the conduct of the proceedings. Ruling on an equitable
basis, it awards them jointly EUR 1,000, plus any tax that may be
chargeable.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds that has been no violation of Article 6 §
1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros) in respect of costs and expenses, plus any tax that
may be chargeable;
(b) that
from the expiry of the above mentioned three months until
settlement simple interest shall be payable on the above amount at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 28 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
