FOURTH SECTION
CASE OF EKIMDZHIEV AND OTHERS v. BULGARIA
(Application no. 70078/12)
 
 
 
JUDGMENT
Art 8 • Private life • Correspondence • Inadequate legal safeguards against arbitrariness and abuse for secret surveillance, retention and access of communications data
 
STRASBOURG
11 January 2022
 
FINAL
 
11/04/2022
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. TABLE OF CONTENTS
INTRODUCTION
THE FACTS
RELEVANT BULGARIAN LAW AND PRACTICE
I. SPECIAL MEANS OF SURVEILLANCE
A. Meaning of the term “special means of surveillance” and most common types of surveillance techniques
B. General outline and evolution of the relevant legislation
C. Situations which may trigger the use of special means of surveillance
D. Persons who or objects which can be subjected to secret surveillance
1. General rules
2. Rules relating to lawyer-client communications
E. Authorisation procedures
1. Authorities entitled to request secret surveillance
2. Content of an application for secret surveillance
(a) The application itself
(b) Materials supporting the application
3. Authorities competent to issue secret surveillance warrants
4. Manner of examination of secret surveillance applications
(a) Relevant statutory provisions and case-law
(b) Information about the courts’ practices relating to the examination of secret surveillance applications emerging from the National Bureau’s annual reports
(c) Other official accounts of the courts’ practices
(i) In the Sofia City Court in 2013-17
(α) Criminal and disciplinary proceedings against the President of the Sofia City Court
(β) April 2017 report by the Vice-Presidents of the Sofia City Court
(γ) Examples of surveillance warrants issued by the Sofia City Court in 2012-13
(ii) In the Specialised Criminal Court in 2015-19
(iii) Generally
(d) Public reporting requirements
5. Further vetting by the authorities deploying special means of surveillance
6. Retrospective authorisation in urgent cases
F. Maximum duration of secret surveillance
G. Situations in which secret surveillance must be stopped
H. Processing of information obtained through special means of surveillance
1. Purposes for which the information may be used
2. Means of acquiring electronic communications
3. Stages of processing
(a) “Primary recording” and “derivative data carrier”
(b) Evidentiary material
(c) Destruction of irrelevant information
4. Rules on the permissible uses of surplus surveillance information
5. Relevant provisions of the Protection of Classified Information Act 2002
I. Authorities supervising the use of special means of surveillance
1. Judges who have issued the surveillance warrants
2. National Bureau
(a) Manner of election and term of office of the National Bureau’s members
(i) Statutory provisions
(ii) Members of the National Bureau in 2013-18 and since 2018
(b) Powers of the National Bureau
(i) To access materials
(ii) To give instructions and set standards
(iii) To bring irregularities to the attention of the competent authorities
(iv) Number of inspections by the National Bureau
3. Parliamentary committee
(a) Manner of election of the Committee’s members
(b) Powers of the Committee
J. Notification of persons placed under secret surveillance
K. Civil liability of the authorities for unlawful secret surveillance
L. Criminal liability of officials for unlawful secret surveillance
II. DISCLOSURE OF DOCUMENTS IN CIVIL PROCEEDINGS
III. RETENTION AND ACCESSING OF COMMUNICATIONS DATA
A. General evolution of the legal regime
B. The regime as it stands at present
1. Types of communications data subject to retention
2. Purposes for which that data is retained
3. Rules on the processing of the retained data by the communications service providers
4. Destruction of retained data which has not been accessed by the authorities
5. Authorisation procedure
(a) Authorities entitled to seek access
(b) Content of the access application
(c) Authorities competent to issue access warrants
(d) Manner of examination of access applications
(e) Retrospective authorisation in urgent cases
6. Procedure for accessing retained data
7. Storage of retained data accessed by the authorities
8. Destruction of retained data accessed by the authorities
9. Authorities supervising the retention of and the access to communications data
(a) Judges who have issued the respective access warrants
(b) Commission for Protection of Personal Data
(i) Manner of election and term of office of the Commission’s members
(ii) Powers of the Commission under the 2007 Act
(α) To obtain information
(β) To give instructions and recommendations
(γ) To impose sanctions
(c) Parliamentary committee
(i) Manner of election of the Committee’s members
(ii) Powers of the Committee under the 2007 Act
(α) To obtain information
(β) To give instructions
(iii) To bring irregularities to the attention of the competent authorities
10. Notification arrangements
(a) In cases of unlawful access or attempted access
(b) In cases of a personal data breach
IV. RELEVANT DATA PROTECTION PROVISIONS
A. Field of application
B. On the processing of personal data by private persons
1. Limitations on the rights of data subjects
2. Remedies
C. On the processing of personal data by the competent authorities for law-enforcement purposes
1. Conditions on which such processing is lawful
2. Possible limitations on the rights of data subjects
3. Supervisory authorities
4. Remedies
RELEVANT DECISIONS OF THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE
RELEVANT EUROPEAN UNION LAW
I. E-PRIVACY DIRECTIVE
II. DATA RETENTION DIRECTIVE
III. GENERAL DATA PROTECTION REGULATION
IV. LAW-ENFORCEMENT DIRECTIVE
V. CJEU CASE-LAW ON ARTICLE 15 § 1 OF THE E-PRIVACY DIRECTIVE
THE LAW
I. SECRET SURVEILLANCE
A. Admissibility
1. The parties’ submissions
(a) Victim status of the applicants
(i) The Government
(ii) The applicants
(b) Exhaustion of domestic remedies
2. The Court’s assessment
(a) Whether the complaint is “substantially the same”
(b) Whether the Court is prevented from examining the complaint by Article 46 of the Convention
(c) The applicants’ victim status and exhaustion of domestic remedies
(d) Conclusion about the admissibility of the complaint
B. Merits
1. The applicants’ victim status and the existence of an interference
(a) The parties’ submissions
(b) The Court’s assessment
(i) General principles
(ii) Application of those principles
(α) Scope of the relevant law
(β) Availability of an effective remedy
(γ) Conclusion
2. Justification for the interference
(a) The parties’ submissions
(i) The applicants
(ii) The Government
(b) The Court’s assessment
(i) General principles
(ii) Application of those principles
(α) Accessibility of the law
(β) Grounds on which secret surveillance may be resorted to and persons who can be placed under surveillance
(γ) Duration of secret surveillance measures
(δ) Authorisation procedures
(ε) Procedures for storing, accessing, examining, using, communicating and destroying surveillance data
(στ) Oversight arrangements
(ζ) Notification
(η) Remedies
(θ) Conclusion
II. RETENTION AND ACCESSING OF COMMUNICATIONS DATA
A. Admissibility
1. The parties’ submissions
(a) Victim status of the applicants
(i) The Government
(ii) The applicants
(b) Exhaustion of domestic remedies
2. The Court’s assessment
B. Merits
1. The applicants’ victim status and the existence of an interference
(a) The parties’ submissions
(b) The Court’s assessment
(i) Retention of communications data by communications service providers
(ii) Accessing of retained communications data by the authorities
(α) Scope of the relevant law
(β) Availability of an effective remedy
(γ) Conclusion
2. Justification for the interference
(a) The parties’ submissions
(i) The applicants
(ii) The Government
(b) The Court’s assessment
(i) General principles
(ii) Application of those principles
(α) Accessibility of the law
(β) Protection of retained data by communications service providers
(γ) Grounds on which retained data can be accessed by the authorities
(δ) Procedure for obtaining access
(ε) Amount of time for which the authorities may store and use accessed data not subsequently used in criminal proceedings
(στ) Procedures for storing, accessing, examining, using, communicating and destroying data accessed by the authorities
(ζ) Oversight arrangements
(η) Notification
(θ) Remedies
(ι) Conclusion

Outcome for Article 41: violation