CASE OF POSEVINI v. BULGARIA
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for home;Respect for private life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for correspondence;Respect for home;Respect for private life;Article 8 - Right to respect for private and family life)
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Síofra O’Leary;Yonko Grozev
6. The first applicant is a professional photographer. Since 1998 he has owned and managed a single-member limited liability company through which he operates a photography studio in Plovdiv. 7. In January 2014 the French authorities informed the Bulgarian Border Police that a Turkish national who had a permit to reside in Bulgaria was suspected of forging Bulgarian identity documents and providing them to Turkish nationals residing unlawfully in France. Electronic surveillance had showed that he had exchanged email messages with an alleged accomplice whose email account was hosted by a Bulgarian Internet service provider. 8. Enquiries by the Bulgarian Border Police revealed that the email account belonged to the first applicant and his company. A wiretap placed on the Turkish national’s French mobile telephone showed that on 4 March 2014 he had called the photography studio’s landline and talked with a woman who spoke Bulgarian with a Russian accent. They discussed the receipt of the photographs of two people. 9. On 10-11 March 2014 the Turkish national travelled from Bulgaria to France by car, and was arrested shortly after entering French territory. A search of his car revealed eight fake Bulgarian identity cards, five fake Bulgarian drivers’ licences and six fake Bulgarian passports. 10. Two days later, on 13 March 2014, the Plovdiv district prosecutor’s office applied for warrants to search the photography studio, the first applicant’s car and the applicants’ house, and seize evidence there. It set out the above developments, and said that it was investigating the forging of identity documents in which the main suspect was the above-mentioned Turkish national. According to the available information, he had received assistance from the first applicant. The applications were worded as follows: “In the course of the proceedings, the need has arisen to carry out a search and seizure in [the applicants’ house, the first applicant’s car, and the photography studio], since the available evidence gives probable cause to suspect that [these places] contain items of relevance to the case – items relating to the subject matter of the case. I therefore ... ask for permission for an investigator to search [these places] with a view to finding and seizing the above-mentioned items.” 11. Between 3.30 and 4 p.m. the same day, a judge of the Plovdiv District Court, sitting in private, issued three warrants authorising the searches and seizures in the following terms: “The submitted materials make it clear that it is necessary to carry out a search and seizure in [these places] with a view to finding the items set out in the application[s] relating to the forging of identity documents and others, relevant to the case which is the subject matter of the criminal proceedings.” 12. At about 9 a.m. the following day, 14 March 2014, just as the first applicant was leaving his house, he was intercepted by three police officers, two in plain clothes and one in uniform. 13. The parties’ accounts of the ensuing events differ widely. According to the applicants, the police did not identify themselves, roughly pinned down and handcuffed the first applicant behind his back, scared his two daughters, the third and fourth applicants, who were minors, and then searched the house in a rude and chaotic manner, without presenting the warrant authorising them to do so. According to the Government, whose account was based on a statement informally obtained from one of the officers who took part in the search, the first applicant attempted to run back to the house, possibly to conceal evidence, and was only handcuffed for that reason. The officers searched the house with restraint, specifically endeavouring not to frighten the two children. They were only looking for computers, mobile telephones and similar devices, and did not rummage needlessly through things in the house. 14. According to the record of the search, it lasted between 9.15 and 10.50 a.m. and took place in the presence of two certifying witnesses. The police seized eleven SIM cards, identity and other documents, a laptop computer, three mobile Internet dongles, and a mobile telephone. 15. According to the applicants, after the search the officers dragged the first applicant into the street, bent over with his hands handcuffed behind his back, in sight of many neighbours and passers-by. Between 10.55 and 11.05 a.m. they searched his car, from which they did not seize anything. The officers then put the first applicant in a police car and drove to the photography studio, very close to the corner of a busy pedestrian street in the centre of Plovdiv, which they searched between 11.35 a.m. and 12.30 p.m. They again refused to allow the first applicant to acquaint himself with the search warrant. According to the record of that search, the officers seized three desktop computers, two video cameras, two still cameras, several flash memory cards, flash memory drives, and cash. 16. At about the same time, between 11.15 and 11.30 a.m. the police searched the first applicant himself, without a judicial warrant. They seized three flash memory drives and two mobile telephones. They submitted the search record to a judge of the Plovdiv District Court, who approved it at 5 p.m. the same day. 17. The officers then took the first applicant to a police station for a “conversation”. According to the first applicant, he was kept in handcuffs the whole time. The Government denied this, noting that if that had indeed been the case, the first applicant would not have been able to sign the search records and produce a handwritten statement in the police station. 18. In the statement the first applicant explained, inter alia, that he used the email account in which the police were interested (see paragraphs 7 and 8 above) to exchange computer files, mostly image files, with clients of his photography studio. He stated that he agreed to provide access to the account for the needs of the investigation, so that the police could subject the messages in it relating to the Turkish national to examination by an expert, and then gave his password. The Government submitted that the police had used the password to go through the email account, but had not seized any messages from it. The first applicant was released at about 6 p.m. The police did not issue a written order for his detention. 19. The first applicant’s wife, the second applicant, came back to Plovdiv later that evening. According to her, she had been contacted earlier during the day by telephone by her older daughter, the third applicant, and had become worried at the news that her husband had been arrested and their daughters left alone, frightened, in the house. She kept calling her daughters and trying to call her husband throughout the day. 20. On 20 March 2014 the investigator in charge of the case asked a computer expert to copy the data from three of the seized flash memory cards to an optical disk. In his report, submitted the following day, 21 March 2014, the expert said that he had copied all the files from two of the cards and that the third card did not contain any files. 21. On 6 June 2014 the investigator asked the same expert to copy the data from the laptop computer seized in the applicants’ house to an external hard drive and to inspect the three desktop computers seized in the photography studio for the presence of software or files which could be used for the forging of documents. In his report, submitted on 18 June 2014, the expert said that he had copied 192,610 files with a total size of 333,204 megabytes from the laptop computer to an external hard drive, which he enclosed with his report, and that his inspection of the desktop computers had revealed that two of them contained software programs which could be used to edit image files, and that the third computer was defective and could not be booted up. 22. It is unclear what happened with the data copied from the laptop computer and the two memory cards. 23. On 17 March 2014 the first applicant asked the Plovdiv district prosecutor’s office to order the return of all the seized items. He submitted that they were not relevant for the case and that he urgently needed them for his work as a photographer. On 20 March 2014 the prosecutor’s office partly allowed the request and ordered the return of some of the items – two cameras, two flash memory cards, and two video cameras – but only after the police had made copies of their contents. The next day, 21 March 2014, those items were given back to the first applicant. On 7 April 2014 he appealed to the Plovdiv regional prosecutor’s office, complaining of the refusal of the lower prosecutor’s office to order the return of the remainder of the seized items. It does not appear that he received a formal reply to his appeal, but on 14 May 2014, two months after the seizure, the investigator in charge of the case gave him back three mobile telephones, three mobile Internet dongles, 1,000 euros (EUR), 100 United States dollars, four flash memory cards, and three flash memory drives. The remainder of the seized items were given back to the first applicant a little more than three months after the seizure, on 18 June 2014, immediately after their contents had been inspected by the expert (see paragraph 21 above). 24. On 9 July 2014 the police sent the case file to the Plovdiv district prosecutor’s office, recommending that the proceedings be discontinued. On 2 September 2014 that office disagreed and instead decided to stay the proceedings on the grounds that the author of the presumed offence had not been identified. On 10 September 2014 it sent the case file back to the police for further investigation. On 18 March 2015 the police again transmitted the case file to the Plovdiv district prosecutor’s office. It appears that the proceedings are still pending. Neither the first nor the second applicant has been charged with an offence.