28 Apr The seizure and retention of a server for the purpose of a criminal investigation did not comply with the Convention

In the case Pendov v. Bulgaria application no. 44229/11 (26/03/2020) the European Court of Human Rights held that there was a violation of Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights (“Convention”) and Article 10 (freedom of expression) of the Convention.

The applicant, Lazar Pendov, is a Bulgarian national who was born in 1986 and lives in Plovdiv (Bulgaria). 

The case concerned the police’s seizure and retention of a server hosting websites. In June 2010 the police seized a server which partially hosted a website which had allegedly uploaded a book to the Internet, in breach of copyright. The server also hosted a website dedicated to Japanese anime culture, which was owned and administered by the applicant. The applicant made repeated requests for the return of the server, complaining that his website could not function without the data on it and stating that he had suffered “significant damage”. The Chief Public Prosecutor’s Office ultimately made enquiries into his complaints and the server was returned to him in February 2011. The applicant complained about the seizure and retention of his server.

The Court stated that Article 1 of Protocol No. 1 does not prohibit the retention of physical evidence in the context of an ongoing criminal investigation. Still, such a measure, which relates to the control of use of property, must comply with the requirements of Article 1 of Protocol No. 1. In the case at hand, the applicant’s server was retained by the prosecution authorities on the strength of Article 111 of the Code of Criminal Procedure The retention thus had a basis in domestic law. The salient question is therefore whether the measure was proportionate.

The fact that the applicant’s server was never examined for the purposes of the criminal investigation which was not directed against the applicant, but against third parties, the possibility of copying the necessary information, the importance of the server for the applicant’s professional activity, as well as the partial inactivity of the district public prosecutor’s office in Sofia – mean that the retention of the applicant’s server between 21 June 2010 and 8 February 2011 was disproportionate. The national authorities thus failed to strike the requisite fair balance between the legitimate aim pursued in the case and the applicant’s rights under violation of Article 1 of Protocol No. 1.

The Government pointed out also that the applicant had not been a journalist, a whistle-blower or another person needing enhanced protection. It is true that the expression engaged in by him was artistic, and as such did not enjoy the high level of protection attributed to political speech. Nevertheless, in the circumstances of the present case, this consideration is insufficient to tip the balance in favour of the Government. The Court pointed out once again that the retention of the applicant’s server in criminal proceedings proved to be unnecessary for the purposes of the investigation and that for some period of time the prosecution authorities made no effort to remedy the effects of their actions on the applicant’s freedom of expression, despite having been informed of those effects on many occasions. The above means that the interference with the applicant’s right to freedom of expression as defined above was not a measure proportionate to the legitimate aims served. It was not thus “necessary in a democratic society” as required under Article 10 of the Convention.

References from the official website of the European Court of Human Rights