CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 novembre 2021

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margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF920FE69 { font-family:Arial; color:#f8f8f8 } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sD235C05 { width:205.98pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }     FOURTH SECTION CASE OF VASIL VASILEV v. BULGARIA (Application no. 7610/15)       JUDGMENT   Art 8 • Private life • Correspondence • Unlawful recording and subsequent transcription of conversation between a lawyer and his client resulting from covert monitoring of the client’s telephone line • Lack of sufficient clarity in the legal framework and absence of procedural guarantees relating concretely to the destruction of accidentally intercepted lawyer-client communications   STRASBOURG 16 November 2021   FINAL   16/02/2022   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Vasil Vasilev v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Tim Eicke, President ,   Yonko Grozev,   Armen Harutyunyan,   Gabriele Kucsko-Stadlmayer,   Pere Pastor Vilanova,   Jolien Schukking,   Ana Maria Guerra Martins, judges , and Andrea Tamietti, Section Registrar , Having regard to: the application (no. 7610/15) 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”) by a Bulgarian national, Mr Vasil Tonchev Vasilev (“the applicant”), on 30   January 2015; the decision to give the Bulgarian Government (“the Government”) notice of the complaints (a) under Article 8 of the Convention that a telephone conversation of the applicant had been covertly intercepted, recorded and transcribed, and (b) under Article 6 § 1 of the Convention that the ensuing proceedings for damages and the judgments given in them were not public, and to declare the remainder of the application inadmissible; the parties’ observations; Having deliberated in private on 19 October 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicant, a lawyer defending a client in a criminal case, found out that a telephone conversation between him and that client had been intercepted, recorded and transcribed as a result of the covert monitoring of the client’s telephone line. He complained under Article 8 of the Convention that the authorities, although aware that the conversation had been between a lawyer and his client, had not destroyed the recording and the transcription, as required by law. The case presents the question whether the laws governing those matters in Bulgaria spell out in enough detail how materials obtained by covertly intercepting lawyer-client communications are to be handled. 2.     The proceedings for damages brought by the applicant in connection with the recording and transcription were classified, and so the public was excluded from the hearings in them and the judgments in them were not made public. The case thus also concerns the question whether that lack of publicity was compatible with the requirements of Article 6 § 1 of the Convention. THE FACTS 3.     The applicant was born in 1958 and lives in Sofia. He was represented before the Court by Ms S. Razboynikova, a lawyer practising in Sofia. 4.     The Government were represented by their Agent, Ms B. Simeonova of the Ministry of Justice. COVERT INTERCEPTION, RECORDING AND TRANSCRIPTION OF THE APPLICANT’S CONVERSATION WITH HIS CLIENT 5.     The applicant is a lawyer in private practice. His main areas of work are criminal law and procedure. 6 .     In late 2009 and early 2010 he was retained by a former Minister of Defence to represent him in several criminal cases. In each of those cases the applicant submitted to the investigating authorities powers of authority featuring the coordinates of his law office. His mobile telephone number was likewise noted down by those authorities on 4 December 2009 and   22   March 2010, when he was present at his client’s charging. 7 .     On 4 April 2010, when acquainting himself with the evidentiary materials in one of the cases against his client, the applicant saw that one of the documents was a transcript of a telephone conversation which he had had with the client on 21 March 2010, when he had called him from his mobile telephone. 8 .     The conversation, as recorded in the transcript, ran as follows: “Man with a telephone number [the applicant’s mobile telephone number] calls [the client]: [Client]: Hello. Man: Hi. [Client]: Hi. Man: Aaa, [K.] has, I presume, told you about tomorrow. [Client]: Which [K.]? A, today he... Man: A. [Client]: He, he told me that we would be going tomorrow, but... Man: Yes, sure, yes. Yes. We must go tomorrow at nine thirty to read the case file; they want us to. They claim that they [will] have finished the investigation by nine. [Client]: Aha. Man: To read the materials. [Client]: All right then. Man: All right. [Client]: To send, shall I send [I.] to pick you up, and I will come there with another [vehicle], so as not to (incomprehensible, both are speaking at the same time). Man: All right, all right, up there, directly, at the Military Police. [Client]: Yes. Man: All right, all right, [N.], all right. [Client]: This is how we are going to do it. Man: OK, good. [Client]: Good. Man: I will be waiting in the law office, you will call when... [Client]: All right, all right. Man: All right, [have a] good day. [Client]: All right, ciao, ciao. Man: Ciao.” 9 .     It later transpired that the client’s two mobile telephone lines had been placed under covert monitoring in connection with another criminal investigation against him for a period of sixty days pursuant to a warrant issued by the president of the Burgas Court of Appeal on 17 March 2010 at the request of the Sofia City prosecutor’s office, and that the conversation had been intercepted and recorded in the course of that monitoring. The president of the Burgas Court of Appeal had not given any reasons for her decision to authorise the monitoring, but had simply signed the warrant which had been drawn up for her by the public prosecutor in charge of the case. 10 .     The monitoring had been carried out by the Technical Operations Directorate of the Ministry of Internal Affairs, which on 3 April 2010 had drawn up the official transcript of the conversation and had sent the intercept materials to the prosecuting authorities. COMPLAINT TO THE PROSECUTING AUTHORITIES 11 .     The same day, 4 April 2010, the applicant informed the Sofia City prosecutor’s office of the matter, insisting that the content of the intercepted conversation made it obvious that it had been between a lawyer and a client. Citing section 33(3) of the Bar Act 2004 (see paragraph 34 below), he requested that the officials who had not destroyed the intercept material be charged with misconduct in public office and misuse of intercept material. 12.     The applicant also sent a copy of his complaint to the Supreme Bar Council, which forwarded it to the Supreme Cassation Prosecutor’s Office. 13 .     In July 2010 the head of the Supreme Cassation Prosecutor’s Office’s inspectorate refused the applicant’s request. She noted that at the time when the transcript of the intercepted conversation had been drawn up, the owner of the telephone line used by the applicant had still been unknown to the authorities, and that the conversation had not concerned any confidential matters covered by lawyer-client privilege. 14 .     The applicant appealed to the Chief Prosecutor. He pointed out, inter   alia , that by section 33(3) of the 2004 Act (see paragraph 34 below) lawyer-client communications were protected irrespective of their content. 15 .     In August 2010 one of the Chief Prosecutor’s deputies replied to the applicant, stating, inter alia , that in principle secret surveillance was a legitimate tool for combatting crime, and that there was no evidence that in his case prosecutors had wilfully disregarded section 33(3) of the 2004 Act. PLAYING OF THE AUDIO RECORDING OF THE INTERCEPTED CONVERSATION IN THE TRIAL OF THE APPLICANT’S CLIENT 16 .     In November 2010, during the trial against the applicant’s client in the criminal case in connection with which the covert monitoring had taken place (in which he was likewise represented by the applicant), the Sofia City Court played several recordings of intercepted telephone conversations of the client, including the one with the applicant on 21 March 2010 (see paragraph 8 above); they had been put into evidence by the prosecution. According to the applicant, the trial was attended by many journalists who then reported on it. REFUSAL OF THE CRIMINAL COURTS TO USE THE SURVEILLANCE EVIDENCE 17 .     When deciding the criminal case against the applicant’s client in October 2012 – which resulted in an acquittal – the Sofia City Court held, inter alia , that the president of the Burgas Court of Appeal had lacked competence ratione loci to issue the warrant authorising the monitoring of the client’s mobile telephone lines, and that by applying to her for that warrant even though the investigation had concerned solely events taking place in Sofia, the prosecuting authorities had abused the procedure (see paragraph 9 above). The evidentiary materials obtained as a result of the monitoring were therefore to be disregarded. That ruling was prompted by, inter alia , an objection raised by the applicant in his capacity as his client’s counsel (see прис. № 310 от 29.10.2012 г. по н. о. х. д. № 4048/2010 г., СГС). In February 2014 the Sofia Court of Appeal fully upheld the acquittal and the lower court’s ruling in respect of those evidentiary materials, adding that the president of the Burgas Court of Appeal had also lacked competence ratione personae to issue the warrant (see реш. № 365 от   14.02.2014 г. по в. н. о. х. д. № 653/2013 г., САС). In February 2015 the Supreme Court of Cassation fully upheld the acquittal (see реш. № 189 от 03.02.2015 г. по н. д. № 515/2014 г., ВКС, II н. о.). PROCEEDINGS FOR DAMAGES Course of the proceedings 18 .     In April 2011 the applicant brought a claim for damages against the Prosecutor’s Office and the Technical Operations Directorate of the Ministry of Internal Affairs. He relied on section 2(1)(7) of the State and Municipalities Liability for Damage Act 1988 (see paragraph 47 below). He sought 1,500 Bulgarian levs (767 euros) in non-pecuniary damages. He argued that the failure of the Directorate’s officials who had intercepted and recorded his conversation with his client to destroy the recording rather than transcribe it, and the ensuing failure of the Prosecutor’s Office officials who had requested the monitoring of his client’s telephone lines to order the destruction of the recording and of the transcript rather than use it as evidence in the criminal case against his client had been in breach of section   33(3) of the Bar Act 2004 (see paragraph 34 below) and of Article 8 of the Convention. 19 .     In their replies to the statement of claim, filed in July 2011, the Prosecutor’s Office and the Technical Operations Directorate of the Ministry of Internal Affairs argued that the interception, recording and transcribing of the applicant’s conversation with his client had been lawful, in particular since at the relevant time the authorities had not been aware that the applicant was a lawyer. They furthermore requested, with reference to Article 136 § 1 (4) of the Code of Civil Procedure (see paragraph 56 below), that access to the case file be restricted and that the case be heard in private, since classified materials had been put into evidence. 20 .     In November 2011 the Sofia District Court held that it was not competent ratione materiae to hear the case and sent it to the Sofia City Administrative Court. 21 .     Having received the case a few days later, in late December 2011 the Sofia City Administrative Court classified it, on the basis that it concerned classified materials: the recording and transcription of the applicant’s telephone conversation, obtained by way of secret surveillance (see paragraph   53 below). 22 .     At first the Sofia City Administrative Court proceeded with the examination of the case. In January 2012 the applicant asked the court to declassify the case, pointing out that the intercepted conversation had already been played in the course of his client’s public trial (see paragraph   16 above). It does not appear that the court responded to the request. In June 2012 it held one hearing from which the public was excluded. 23 .     In August 2012 the Sofia City Administrative Court reconsidered its competence ratione materiae to hear the claim and found that it was likewise unable to deal with it. It referred the case to a mixed panel of the Supreme Administrative Court and the Supreme Court of Cassation for a decision on which court was competent ratione materiae to examine the claim. In October 2012 that panel held that since the case concerned law-enforcement rather than administrative activities, it fell within the subject-matter jurisdiction of the Sofia District Court, and referred it back to that court for examination. The panel’s proceedings and its decision were likewise classified. 24 .     The case remained classified even after its referral back to the Sofia District Court, and as a result the court excluded the public from the single hearing which it held in March 2013. 25 .     In a judgment of 30 April 2013 (реш. от 30.04.2013 г. по гр.   д.   №   47391/2012 г., СРС) the Sofia District Court allowed the applicant’s claim. It held at the outset that the claim did not fall to be examined under the State and Municipalities Liability for Damage Act 1988 (see paragraph 47 below), which was a lex specialis , but under the general law of tort. It noted that the applicant had been retained by his client on   2   November 2009 and had already acted in his capacity as his client’s counsel on 12 November and 4 December 2009, when the investigators had noted down the mobile telephone number from which he had later spoken to his client (see paragraph 6 above). The court went on to say that the content of the conversation between the two had made it obvious that it had been between a lawyer and his client. In any event, the applicant’s mobile telephone number had been available to the investigators and the public prosecutor in charge of the criminal case against his client before the covert monitoring of the client’s telephone had started on 17 March 2010. It followed that the covert interception and recording of the conversation had been in breach of Article 30 § 5 of the Constitution and section 33(3) of the Bar Act 2004 (see paragraphs 33 and 34 below), and also of Article 8 of the Convention. Transcribing the conversation instead of destroying the recording had likewise been in breach of those provisions. 26 .     The same day the Sofia District Court decided to classify its judgment by reference to point 8 of part II of Schedule no. 1 to the Protection of Classified Information Act 2002 (see paragraph 53 below), on the basis that in the reasons for the judgment it had analysed classified materials: those resulting from the covert interception of the applicant’s conversation. 27 .     The Prosecutor’s Office and the Technical Operations Directorate of the Ministry of Internal Affairs both appealed. The Prosecutor’s Office argued, in particular, that the telephone conversation between the applicant and his client had not fallen under the protection of section 33(3) of the Bar Act 2004 (see paragraph 34 below) since it had not consisted in legal advice. 28 .     In June 2014 the Sofia City Court held a hearing from which the public was excluded. In a final judgment of 1 August 2014 (реш. № 5 от   01.08.2014   г. по гр. д. № С-27/2013 г., СГС) it quashed the lower court’s judgment and dismissed the applicant’s claim. It held that the claim, as framed by the applicant, concerned the solely initial failure to destroy the recording and the transcript rather than the failure to do so after his ensuing complaint to the prosecuting authorities. The court found no evidence that at that point the Technical Operations Directorate of the Ministry of Internal Affairs had been aware of the applicant’s mobile telephone number; only the Prosecutor’s Office had been aware of it. Unlike the lower court, the Sofia City Court was furthermore not satisfied that the content of the conversation had made it evident that it had been between a lawyer and his client. It noted that although the applicant and his client had discussed their intention to acquaint themselves with the materials in the criminal case against the client, had mentioned the completion of the investigation, and had used the words “military police” and “law office”, they had not uttered their names or the word “lawyer” (see paragraph 8 above). The officials of the Technical Operations Directorate of the Ministry of Internal Affairs had therefore not breached section 33(3) of the Bar Act 2004 (see paragraph 34 below). Nor was there any evidence that upon receiving the transcript of the recording officials of the Prosecutor’s Office had become aware from the content of the conversation that it had been between a lawyer and his client, or that they had checked to whom the telephone number featuring in the transcript belonged. Also, it had to be noted that the telephone line under monitoring had been that of the client rather than that of the applicant. 29 .     The Sofia City Court likewise decided to classify its judgment, on the basis that it analysed the lower court’s judgment, which had itself been classified (see paragraph 26 above). Declassification of the judgments given in the proceedings 30 .     On 25 November 2014 the applicant asked the Sofia District Court to provide him with a copy of its judgment. On 9 December 2014 the court allowed the request. It noted that the only reason for the classification of its judgment had been that it had analysed the recording and transcript of the applicant’s conversation, which had itself been classified. However, following the repeal in August 2013 of the rule according to which any materials obtained as a result of secret surveillance were classified information (see paragraph 53 below) and the instructions in the interpretative decision issued on 3 December 2014 by the General Meeting of the Supreme Court of Cassation’s Criminal Divisions (see paragraph 57 below), there were no longer any grounds for its judgment to remain classified. 31 .     On 28 January 2015 the applicant asked the Sofia City Court to provide him with a copy of its judgment. On 30 January 2015 the court allowed the request. It held, for the same reasons as those given by the lower court, that there were no longer grounds for its judgment to remain classified. 32 .     Neither the Sofia District Court’s judgment nor that of the Sofia City Court appear to have been published on those courts’ websites, as normally required by section 64(1) of the Judiciary Act 2007 (see paragraph 60 below). It is unclear whether after their declassification they have been placed in the respective registers of judgments of the two courts (see paragraph 58 below). RELEVANT LEGAL FRAMEWORK PROTECTION OF LAWYER-CLIENT COMMUNICATIONS 33 .     By Article 30 § 5 in fine of the 1991 Constitution, the secret of the communications between lawyers and the people for whom they act is “inviolable”. In a 2006 judgment the Constitutional Court explained that the term “communications” in that provision means not only communications in person but all forms of exchange of information (see реш. № 4 от   18.04.2006   г. по к. д. № 11/2005 г. КС, обн., ДВ, бр. 6/2006 г.). 34 .     Section 33(3) of the Bar Act 2004 provides that conversations between lawyers and clients cannot be intercepted and recorded, and that any possible recordings of such conversations cannot be used as evidence and are subject to immediate destruction. By Article 136 § 2 of the Code of Criminal Procedure, the use of special means of surveillance with respect to lawyers is subject to the requirements of the 2004 Act. 35 .     In a 2010 judgment, the Supreme Court of Cassation held that section   33(3) of the 2004 Act precluded the covert monitoring and recording of conversations between lawyers and their clients, and that any resulting recordings could not be used in evidence and were subject to immediate destruction (see реш. № 378 от 29.06.2010 г. по н. д. № 188/2010 г., ВКС, III н. о.). However, in a 2019 judgment the Supreme Court of Cassation held that in spite of the literal terms of that provision, the prohibition which it laid down was not necessarily absolute in all cases, in view of, inter alia , the public interest to detect offences committed by lawyers (see реш. № 211 от   08.04.2019 г. по н. д. № 1009/2018 г., ВКС, III н. о.). 36 .     The statute governing the covert monitoring of communications, the Special Means of Surveillance Act 1997, does not contain any provisions specifically dealing with the interception of lawyers’ communications. 37 .     The issue appears to have been touched upon solely in an instruction issued by the Chief Prosecutor on 11 April 2011 in the exercise of his power under section 138(4) (since August 2016, section 138(6)) of the Judiciary Act 2007 to make instructions governing the work of the prosecuting authorities. The instruction’s preamble said that its issuing was necessary to put an end to inconsistent practices and to avert breaches of section 33 of the 2004 Act (see paragraph 34 above). 38 .     By point 12 of the instruction, lawyers can be placed under secret surveillance only if there is information which can provide grounds for a reasonable suspicion that they have committed a criminal offence. The surveillance request must expressly mention that the surveillance will be directed against a lawyer. 39 .     Point 13 of the instruction says that if in the course of a surveillance operation the authorities record the conversation of a lawyer with a client or with another lawyer, and that conversation touches upon a client’s defence, they must not prepare evidentiary materials on its basis, unless the surveillance reveals that the lawyer has him- or herself engaged in criminal activity. 40 .     It does not seem that the instruction has been published by the Prosecutor’s Office. On 13 April 2011 the Chief Prosecutor did, however, send a copy of it to the Supreme Bar Council, and in June 2011 the Supreme Bar Council published it in issue 5-6/2011 of its journal, “Lawyers’ Review” ( Адвокатски преглед ) ( link ). PROCESSING OF INFORMATION OBTAINED THROUGH SECRET SURVEILLANCE 41 .     The authority which has carried out a secret surveillance operation (in   this case, the Technical Operations Directorate of the Ministry of Internal Affairs) must keep the primary recording for as long as the operation is under way (section 25(6) of the Special Surveillance Means Act 1997). That recording is used to create a derivative data carrier, which that authority must send to the authority which has requested the surveillance (in this case, the Sofia City prosecutor’s office) (section 25(1), (4) and (5)). 42 .     The derivative data carrier may be in writing or in another (in practice electronic) form (section 25(1) of the 1997 Act). Its content must fully match the primary recording (section 25(3)). 43 .     If, based on that derivative data carrier, the requesting authority finds that the surveillance has yielded useful information, it must immediately advise the surveillance authority to prepare evidentiary materials on the basis of the primary recording (sections 26 and 27(2) of the 1997 Act). Although the Act does not specify what exactly those evidentiary materials consist of, from the criminal courts’ case-law it transpires that they are computer files containing audio- or video-recordings, as the case may be (see, for instance, прис. № 50 от 03.06.2011 г. по н. о. х. д. № 424/2011 г., ОС-Варна, upheld in relevant part by реш. № 157 от 21.11.2011 г. по   в.   н.   о.   х.   д.   №   313/2011 г., ВнАС, and then by реш. № 83 от   19.06.2012 г. по н. д. № 3135/2011 г., ВКС, II н. о.; реш. № 172 от   18.04.2012 г. по н. д. № 398/2012 г., ВКС, I н. о.; прис. № 56 от 16.11.2016 г. по н. о. х. д. № 379/2014 г., ОС-Плевен, upheld by реш.   №   124 от 03.05.2017 г. по в. н. о. х. д. № 69/2017 г., ВтАС, apparently not appealed against; and реш. № 1 от 17.02.2017 г. по н.   д.   №   1143/2016 г., ВКС, III н. о.). Those evidentiary materials are not to be confused with physical evidence, and the court trying a criminal case cannot therefore lawfully order their destruction (see опр. № 145 от   17.06.2016 г. по в. ч. н. д. № 156/2016 г., ОС-Видин). 44 .     The evidentiary materials must be prepared in two copies, one of which must be sent to the requesting authority, and the other to the judge who issued the surveillance warrant (section 29(1) of the 1997 Act and   Article 176 § 1 of the Code of Criminal Procedure). The requesting   authority may require additional copies of those materials (section   29(1)   in   fine and Article 176 § 2). 45 .     The evidentiary materials received by the requesting authority must be kept by it until criminal proceedings are opened in connection with them; when such proceedings are opened, the materials are to be kept by the prosecutor’s office and then the court dealing with the case (section 31(1) and   (2) of the 1997 Act). Article 125 § 3 of the Code of Criminal Procedure provides that evidentiary materials prepared on the basis of secret surveillance are to be placed in the case file of the criminal case. It does not appear that there are any legal provisions which deal specifically with the destruction of evidentiary materials obtained as a result of secret surveillance. OVERSIGHT OF THE SYSTEM OF SECRET SURVEILLANCE 46 .     In 2009-13, the system of secret surveillance in Bulgaria was being overseen by a special parliamentary subcommittee. Details about its powers and manner of operation can be found in Hadzhiev v. Bulgaria (no.   22373/04, §§ 26-28, 23 October 2012) and Lenev v. Bulgaria (no.   41452/07, §§ 81-83, 4 December 2012). In August 2013 that subcommittee’s tasks were taken over by a National Bureau for Control of Special Means of Surveillance, which began operating in 2014. LIABILITY FOR UNLAWFUL SECRET SURVEILLANCE 47 .     Section 2(1) of the State and Municipalities Liability for Damage Act 1988 provides for liability of the investigating and prosecuting authorities and the courts in several types of situations chiefly relating to the enforcement of the criminal law. In March 2009 a new point 7 was added to section 2(1). It provides that the State is liable for damage which the investigating or prosecuting authorities or the courts have caused to individuals through the unlawful use of special means of surveillance. 48 .     Until late 2012, there were no final judgments under section 2(1)(7) (see Hadzhiev , cited above, § 30 in fine ; Savovi v. Bulgaria , no. 7222/05, §   40   in fine , 27 November 2012; and Lenev , cited above, § 86 in fine ). 49 .     In November 2011 and April 2012, two first-instance courts allowed two concurrent claims for damages under that provision by a lawyer whose telephone conversations with a client had been intercepted in the course of criminal proceedings against him. The first claim was directed against the court which had authorised the interception, and the second was directed against the regional department of the Ministry of Internal Affairs which had carried out the interception (see реш. № 276 от 07.11.2011 г. по гр.   д.   №   3/2010 г., ОС-Плевен, and реш. № 39 от 19.04.2012 г. по гр.   д.   №   280/2010 г., РС-Левски). Both courts held, on the basis of findings by the courts in the criminal proceedings against the lawyer, that the interception of those conversations had been in breach of section 33(3) of the Bar Act 2004 (see paragraph 34 above). [1] 50 .     In March 2012 the competent appellate court quashed the former first-instance judgment and dismissed the lawyer’s claim on the basis that   (a) the interception of the conversation had taken place before section   2(1)(7) had entered into force, and that (b) the defendant (the court which had authorised the interception) had not acted unlawfully, since it had merely authorised the interception rather than carried it out itself (see реш.   № 61 от 05.03.2012 г. по гр. д. № 536/2011 г., ВтАС). In December 2012 the Supreme Court of Cassation refused to admit the lawyer’s appeal on points of law against the appellate judgment (see опр. № 1435 от   15.12.2012 г. по гр. д. № 815/2012 г., ВКС, III г. о.). 51 .     In May 2013 the competent appellate court quashed the latter first-instance judgment, and dismissed the lawyer’s other claim as well, on the basis that he had already been awarded compensation with respect to the bringing of criminal charges against him (since those had resulted in a final acquittal), and was not entitled additionally to obtain damages for specific steps taken in the course of the same criminal proceedings (see реш. № 345 от 07.05.2013 г. по в. гр. д. № 1008/2012 г., ОС-Русе). It appears that no valid appeal on points of law was lodged against that appellate judgment (see разп. № 153 от 03.09.2013 г., по жалба вх. № 12252 от   29.08.2013   г., ВКС), and that it became final. APPEALS AGAINST DECISIONS BY INVESTIGATORS AND PUBLIC PROSECUTORS IN CRIMINAL CASES 52 .     The decisions of the investigator in charge of a criminal case are amenable to appeal before the public prosecutor in charge of the case. The decisions of the public prosecutor in charge of the case not amenable to judicial review are amenable to appeal before a public prosecutor from the higher prosecutor’s office (Article 200 of the Code of Criminal Procedure). CLASSIFICATION OF MATERIALS OBTAINED THROUGH SECRET SURVEILLANCE 53 .     By point 6 of part II of Schedule no. 1 to the Protection of Classified Information Act 2002, information about special means of surveillance (technical devices or the manner of their use) used pursuant to the law is a State secret. According to point 8, in force until August 2013, so was any information obtained as a result of the use of special means of surveillance. In August 2013 point 8 was repealed. CLASSIFICATION OF COURT CASES 54 .     If documents or materials formally marked as containing classified information are included in a case, that is grounds for it to be classified (Rule 91 § 1 of the 2009 Rules on the Administration of District, Regional, Administrative, Military and Appellate Courts, superseded in 2017 by the identically worded Rule 81 § 1 of the Judicial Administration Rules, both issued by the Supreme Judicial Council). 55 .     The level of classification of the case file must correspond to the highest level of classification of the classified documents or other materials featuring in it (Rule 91 § 3 in fine of the 2009 Rules, superseded by the identically worded Rule 81 § 3 in fine of the 2017 Rules). The court dealing with the case may, however, decide to put all such classified materials in a separate volume and classify only that volume, so as not to impede needlessly access to the other materials in the case file (Rule 91 § 4 of the 2009 Rules, superseded by the identically worded Rule 81 § 4 of the 2017 Rules). In that situation, all rules governing the protection of classified information apply only to the classified volume (Rule 91 § 6 of the 2009 Rules, superseded by the identically worded Rule 81 § 6 of the 2017 Rules). EXCLUSION OF THE PUBLIC FROM JUDICIAL PROCEEDINGS 56 .     A court hearing a civil case may of its own motion or at the request of a party decide that the examination of the case or certain procedural steps in it are to be carried out in private if, inter alia , (a) the public interest requires that, or (b) there is another good reason to do so (Article 136 §   1   (1) and (4) of the Code of Civil Procedure). 57 .     In an interpretative decision of 3 December 2014 (тълк. реш. № 4 от   03.12.2014 г. по тълк. д. № 4/2014 г., ВКС, ОСНК), the General Meeting of the Supreme Court of Cassation’s Criminal Divisions held, with reference to the (broadly) analogous provision in the Code of Criminal Procedure, Article 263 § 1, that the mere fact that a case involves materials obtained by way of secret surveillance is not a sufficient ground to examine it in private, and that the court hearing the case must duly justify its decision to exclude the public, and exclude it only from procedural steps genuinely involving State secrets. The court went on to specify that judgments in cases involving evidence obtained by way of secret surveillance must as a rule be published in their entirety; only if the proceedings or part of them have been conducted in private, the court may refrain from publishing those parts of its reasoning in which it comments on information which is a State secret. The court based those conclusions, on, inter alia , (a) this Court’s judgments in Raza v. Bulgaria (no. 31465/08, § 53, 11 February 2010), Amie and Others v.   Bulgaria (no. 58149/08, § 99, 12 February 2013) and Nikolova and Vandova v. Bulgaria (no. 20688/04, §§ 72-77 and 81-86, 17 December 2013), and (b) the repeal of point 8 of part II of Schedule no. 1 to the Protection of Classified Information Act 2002 in August 2013 (see paragraph 53 in fine above). PUBLICATION OF JUDICIAL DECISIONS 58 .     Judgments deciding the merits of civil cases are pronounced by being published in the register of judgments of the respective court, which is public and freely accessible to everyone (Article 235 § 5 in fine of the Code of Civil Procedure). That register may be in written or electronic form (Rule   50 § 1 (10) of the 2009 Rules on the Administration of District, Regional, Administrative, Military and Appellate Courts, superseded in 2017 by the identically worded Rule 39 § 1 (10) of the Judicial Administration Rules). 59 .     Since 2016, the register has been solely electronic (section 360n(1) of the Judiciary Act 2007, added in 2016). Anyone is entitled to access freely the judicial decisions published in it (section 360r(2), in force since February 2017). However, by section 360o(3), also in force since February 2017, neither the reasons for nor the operative provisions of judicial decisions revealing a secret protected by law are to be published in the register. 60 .     Section 64(1) of the Judiciary Act 2007 introduced the requirement for all judicial decisions to be published on the respective court’s website. As originally enacted, that provision required publication at three-monthly intervals, but in 2009 it was amended to provide that judicial decisions are to be published online immediately after being rendered. A 2017 amendment to section 64 provided for a limited exception from the principle of immediate publication in some criminal cases. THE LAW         ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 61.     The applicant complained that the covert recording and transcription of the telephone conversation between him and his client had been unlawful and unnecessary. He relied on Article 8 of the Convention, which provides, so far 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.” Admissibility The parties’ submissions (a)    The Government 62.     The Government submitted that the applicant had not exhausted domestic remedies. During the pre-trial phase of the case against his client he had not appealed under Article 200 of the Code of Criminal Procedure against any decisions by the investigator or the public prosecutor in charge of the case relating to the intercepted conversation. Those appeals differed from the complaint to the prosecuting authorities, in which the applicant had simply urged them to charge officials for omitting to destroy the intercept materials. The applicant could have also challenged the admissibility of the evidence prepared on the basis of the interception in his client’s trial; there had already been cases in which such evidence had been disregarded on the basis that it had encroached on lawyer-client privilege. That would have later enabled the applicant to prosecute successfully his claim under section   2(1)(7) of the 1988 Act. As counsel for his client, he had been a party to the criminal case in connection with which the interception had been carried out. After the conversation had been transcribed, all resulting materials could be destroyed only by the court dealing with that case, and the applicant should have thus addressed his request for the destruction of those materials to that court. That manner of proceeding followed logically from the statutory rule that recordings of conversations between lawyers and clients could not be used as evidence and had to be destroyed immediately. Since that prohibition, as well as the enhanced protection of lawyer-client communications under Article 8 of the Convention, was chiefly meant to protect the client’s rights, a challenge to the interception in the course of the criminal proceedings against the client would have been the most appropriate course of action. There could be no clash between the applicant’s and his client’s interests in that matter. (b)    The applicant 63.     The applicant replied that the proceedings against his client had had no relation to his own privacy rights. Although under the rules of criminal procedure in Bulgaria counsel for an accused were a party to the criminal case in their own right, their role was to defend the client’s rights, not their own. The presence of evidence showing that the client’s conversation with his lawyer (which had anyhow not revealed any misconduct by the client) had been intercepted had actually been beneficial to his client’s defence, since it had demonstrated that the prosecuting authorities had acted unlawfully when building up their case. Objecting against the use of that evidence could not vindicate the applicant’s own rights, or lead to an award of compensation. During the pre-trial stage, the evidentiary materials prepared on the basis of the intercepted conversation had been kept by the prosecuting authorities. The applicant had immediately approached them about the matter, but they had not only retained those materials but also then adduced them as evidence against his client. The complaint to the prosecuting authorities and the claim for damages had been adequate to protect the applicant’s own rights under Article 8 of the Convention. The Court’s assessment 64 .     After the applicant found out that his conversation with his client had been intercepted and recorded as a result of the covert monitoring of his client’s telephone line, he pursued two avenues of redress. He first urged the prosecuting authorities to open criminal proceedings against the officials who had failed to destroy the intercept materials (see paragraphs 11 to 15 above). He then brought a claim for damages under section 2(1)(7) of the   1988 Act – which was, however, examined by the courts not under that provision but under the general law of tort (see paragraphs 18, 25 and 28 above). 65 .     The applicant thereby exhausted domestic remedies with respect to his complaint under Article 8 of the Convention. As apparent from its terms, section 2(1)(7) of the 1988 Act, added in March 2009, was enacted with a view to creating a dedicated remedy in respect of unlawful sec