CEDH · CASELAW;COMMUNICATEDCASES;ENG — 20 novembre 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid }     Communicated on 20 November 2015   FIFTH SECTION Application no. 63638/14 Eduard Anatolievich POSEVIN and others against Bulgaria lodged on 12 September 2014 STATEMENT OF FACTS 1.     The applicants are a family. The first and second applicants, Mr   Eduard Anatolievich Posevin, a Russian national born in 1962, and Mrs   Tetyana Anatolyivna Posevina, a Ukrainian and Bulgarian national born in 1974, are spouses. The third and fourth applicants, Ms Valeriya Eduardovna Posevina, a Ukrainian national born in 2001, and Ms Dzhulia Eduardovna Posevina, a Ukrainian national born in 2004, are their daughters. All applicants live in Plovdiv, Bulgaria. 2.     The applicants are represented before the Court by Mr   M.   Ekimdzhiev, Ms K. Boncheva and Ms S. Stefanova, lawyers practising in Plovdiv. A.     The circumstances of the case 3.     The facts of the case, as submitted by the applicants, may be summarised as follows. 1.     Background 4.     The first applicant is a photographer by profession. At the relevant time, he owned and managed a single-member limited liability company through which he operated a photography studio in Plovdiv. According to the applicants, this was the family’s only source of income, as the second applicant was at that time unemployed. 2.     The searches and seizures on 14 March 2014 5.     At about 9 or 10 a.m. on 14 March 2014, just as the first applicant was leaving the family’s house to go to his photography studio, he was intercepted by two plain clothes and one uniformed police officers. According to affidavits drawn up by the four applicants and two witnesses for the purposes of the present proceedings, the officers asked the first applicant about his name, but did not identify themselves as police. The first applicant, frightened, started walking towards his house, which he had not locked and where his daughters, the third and fourth applicants, at that time respectively twelve and nine years old, were preparing for school. The officers were walking behind him. As he approached the house, the first applicant quickened his pace, failing to heed the officers’ admonition to stop. Then they pinned him to the ground, handcuffed him behind his back, and dragged him into the house, pushing the front door, which was not locked, with his body. 6.     Startled by the noise, the third and fourth applicants got out of their room and began screaming and crying with fear, apparently taking the plain clothes officers for burglars. Their entreaties to the officers to tell them what was going on were met with the response that their father would tell them. At the same time, the first applicant, who was lying on the floor, asked the officers to handcuff him in front of his body because he had had surgery on his right arm and was experiencing strong pain. They refused. 7.     About half an hour later, when more officers had come to the house, the first applicant was put up on a chair, and one of the officers asked him whether he had any false documents or devices allowing him to produce such documents. He denied, and demanded to be given a warrant allowing the officers to proceed with their actions. They refused to show him any such warrant, searched the house, coarsely opening cupboards and wardrobes, throwing clothes and other objects to the ground, emptying drawers, including in the children’s room, and then moved on to a shed in the yard and the cellar, the keys for which they obtained from the first applicant. 8.     According to the record of the search, it lasted between 9.15 and 10.50 a.m. and in its course the police seized eleven SIM cards, identity and other documents, a laptop computer, three mobile internet dongles, and a mobile telephone. 9.     After that the officers took the first applicant out of the house, leaving the third and fourth applicants alone there. The officers did not allow the first applicant to call his wife, the second applicant, who was out of town for several days, so that she can come back and take care of the third and fourth applicants. They apparently said that the children were old enough to fend for themselves. 10.     The officers dragged the first applicant onto the street, bent over with hands handcuffed behind his back, in the 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, and then put him in a police car and drove to his 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. in the same forceful way as they had searched the house. They again refused to allow the first applicant to acquaint himself with the warrant authorising the search. According to the record of the search, they seized three desktop computers, two video cameras, two photo cameras, several memory cards, flash memory drives, and cash. 11.     At the same time, between 11.15 and 11.30 a.m. the police, without prior judicial authorisation, searched the first applicant himself, seizing 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 by writing down “approved” on the record’s top right corner. 12 .     The officers then took the first applicant, handcuffed, to a police station, and an hour later questioned him. After mentioning that he had sent e-mails to a client of his that the police were interested in, the police forced him to give them the password for the e-mail account of his company and checked it. He was kept constantly handcuffed except when allowed to go to the toilet. He was released at about 6 p.m. and went back to his house. The police did not issue a written order for his detention. 13.     The first applicant’s wife, the second applicant, came back to Plovdiv later that evening. According to her, she had been contacted by telephone by her older daughter, the third applicant, earlier during the day, and had become very worried at the news that her husband had been arrested and that their daughters had been left alone and scared in the house. She had kept calling her daughters and trying to call her husband throughout the day, and managed to get back to Plovdiv at about 6.30 p.m. 14.     Although the searches of the house, the first applicant’s car and the photography studio were recorded on official forms destined for searches carried out with prior judicial authorisation, only the record of the search of the first applicant’s photography studio referred to the judicial decision that had authorised it, which had been given the previous day, 13 March 2014, by a judge of the Plovdiv District Court (опр. № 1321 от 13.03.2014 г.). The other two search records only bear handwritten notes saying that they were authorised by judicial decisions (опр. № 1320 and опр. № 1322) given by the same judge. The applicants have not submitted a copy of any of these decisions. It is unclear whether they have been given access to them. 3.     The first applicant’s efforts to obtain the return of the seized objects 15 .     On 17 March 2014 the first applicant asked the Plovdiv District Prosecutor’s Office to order the return of all objects seized on 14 March 2014. He submitted that they were not relevant for the case and that he urgently needed them for his work. On 20 March 2014 that office partly allowed the request, and ordered the return of some of the objects – two photo cameras and their memory cards and two video cameras – but only after the investigating authorities had made copies of their contents. Accordingly, on 21 March 2014 these objects were given back to the first applicant. On 7 April 2014 he appealed to the Plovdiv Regional Prosecutor’s Office, complaining of the failure of the lower prosecutor’s office to order the return of all seized objects. It does not appear that he received a formal response to his appeal. However, on 14 May 2014 the investigator in charge of the case gave him back three mobile telephones, three mobile internet dongles, 1,000 euros, 100 United States dollars, and seven memory cards. The remainder of the seized objects were given back to the first applicant on 18 June 2014. 4.     Effect of the events of 14 March 2014 on the applicants 16.     According to the applicants, the third and fourth applicants were extremely traumatised by the events on 14 March 2014, and had nightmares for days after that. 17.     On 23 March 2014 the fourth applicant was examined by a psychiatrist, who came to the view that the events of 14 March 2014 had caused her serious stress and an adjustment disorder. 18.     On 13 August 2014 the second applicant was examined by a general practitioner, who found that she had recently developed diabetes and, noting that she did not have any family history of the disease, opined that its onset might be due to emotional stress. B.     Relevant domestic law 1.     Search of premises 19 .     Searches of premises carried out in the course of criminal proceedings is governed by Articles 160 to 163 of the Code of Criminal Procedure 2005. 20 .     Article 160 § 1 provides that when there are sufficient grounds to suppose that premises contain objects, papers or computer information systems which contain data that might be relevant for a criminal case, they may be searched and these objects or data seized. 21 .     As a rule, a search and seizure in the course of a preliminary investigation must be authorised beforehand by a judge of the first-instance criminal court which would be trying the case or the first-instance criminal court having territorial jurisdiction over the place where the search is to be carried out (Article 161 § 1). However, in exigent circumstances, when a search and seizure would be the only means of gathering and preserving evidence, the investigating authorities may carry them out without such warrant, but then the supervising public prosecutor must submit the record of the search to a judge for approval immediately and in any event not more than twenty-four hours after the search (Article 161 § 2). 22 .     Articles 162 and 163 lay down the manner in which searches and seizures are to be carried out. 23 .     Article 162 § 1 provides that the search and seizure have to be carried out in the presence of certifying witnesses and the person who uses the premises. Article 162 § 2 says that if that person or a member of his or her family cannot be present, the search and seizure have to be carried out in the presence of the building manager or a representative of the municipality. Article 162 § 6 provides that when the search and seizure concern a computer information system or software, they have to be carried out in the presence of a technical specialist. 24 .     Article 163 § 1 provides that, unless urgent, searches and seizures must be carried out during the day. Article 163 § 2 says that before proceeding with the search, the investigating authorities must present the search warrant to the person concerned and invite him or her to produce the objects, papers or computer information systems that they seek. Article 163 § 3 provides that the officers who carry out the search may prohibit the persons present at the search from interacting with one another or others, or leaving the premises, until the search has been completed. Article   163 § 4 says that when carrying out a search and seizure, the authorities may not take steps that are not required to attain their purpose, and that rooms and storage places may only be opened by force if the persons concerned refuse to open them, but that unnecessary damage must be avoided. Article   163 § 5 provides that if the search and seizure reveal intimate details about those concerned, the authorities must take steps to avoid these from becoming public knowledge. 25 .     Article 163 §§ 7 and 8, which relate specifically to data in computer information systems, provide that, as a rule, such data must be seized by printing. If that is not possible, the computer system must be sealed with a record featuring the number of the case, the authority which has carried out the seizure, the place and time, and the names of all persons present, who must then sign the record. It can then be unsealed only with the authorisation of the competent public prosecutor and in the presence of certifying witnesses and a technical specialist. 2.     Personal search incident to an arrest or to a search of premises 26 .     Article 164 § 1 of the Code provides that a person may be subjected to a search without prior judicial authorisation in the course of a preliminary investigation if (a) he or she is being arrested, or (b)   there are sufficient grounds to believe that he or she has, in the course of a search of premises, concealed on his or her body objects or papers which may be relevant to the case. Article 164 § 3 provides that in that case the record of the search must be submitted to a judge for approval immediately and in any event not more than twenty-four hours after the search. 3.     Seizure of e-mail messages 27 .     The seizure of paper and e-mail correspondence in the course of criminal proceedings is governed by Article 165 of the Code of Criminal Procedure 2005. Article 165 § 1 provides that such correspondence may only be seized if that is necessary to uncover or prevent “serious offences”. (Article 93 § 7 of the Criminal Code 1968 defines a “serious offence” as one punishable by more than five years’ imprisonment, life imprisonment, or full life imprisonment.) Article 165 § 2 of the 2005 Code provides that the seizure of correspondence in the course of a preliminary investigation must be authorised, following an application by the competent public prosecutor, by a judge of the first-instance criminal court which would be trying the case or the first-instance criminal court having territorial jurisdiction over the place where the seizure is to be carried out. In the reported cases under these provisions, the courts have authorised the prosecuting authorities to seize e-mail messages by approaching the internet service provider which holds them on its server (see опр. № 451 от 31.07.2012 г. по ч.   н.   д.   №   942/2012 г., РС-Враца; опр. № 559 от 09.10.2012 г. по ч.   н.   д.   №   1182/2012 г., РС ‑ Враца; and опр. № 142 от 14.03.2013 г. по ч.   н. д. №   319/2013 г., РС ‑ Враца). 28 .     In two recent judgments (see реш. № 530 от 04.01.2012 г. по н.   д.   № 2005/2011 г., ВКС, I н. о., and реш. № 17 от 29.01.2015 г. по н.   д.   №   1622/2014 г., ВКС, I н. о.), which concerned, inter alia , the question whether the investigating authorities had properly seized Skype conversations and whether these were accordingly to be admitted in evidence, the Supreme Court of Cassation held that the search of data in computer information systems under Article 163 of the Code of Criminal Procedure 2005 (see paragraph 25 above) and the seizure of electronic correspondence under Article 165 of the same Code (see paragraph 27 above) were distinct procedures, subject to different prerequisites, but that the Skype conversations in issue, which were both computer data for the purposes of the former Article and correspondence for the purposes of the latter Article, had been duly seized because they had been obtained by accessing the data in computers which had already been duly seized. In the first of those cases, the court checked whether the investigating authorities had used the search procedure under Article 163 with a view to circumventing the procedure under Article 165, and was satisfied that this had not been the case. 4.     Judicial review of police detention 29 .     Section 63(4) of the Ministry of Internal Affairs Act 2006, preceded by section 70(4) of the Ministry of Internal Affairs Act 1997 and superseded by section 72(4) of the Ministry of Internal Affairs Act 2014, both of which are phrased in identical terms, provided that a person detained by the police was entitled to seek judicial review of the lawfulness of his or her detention, and that the court had to rule on the claim immediately. The Supreme Administrative Court has held that the absence of a written order could in itself affect the lawfulness of police detention and that this point may be examined in proceedings for judicial review of the de facto detention (see опр. № 1273 от 09.02.2005 г. по адм. д. №   922/2005 г., ВАС, V о.). It has also held that the lawfulness of a short period of police detention carried out in the absence of a written order may be examined in proceedings for damages under section 1(1) of the State and Municipalities Liability for Damage Act 1988 (see опр. № 2556 от 21.03.2005 г. по адм.   д.   №   1553/2005 г., ВАС, V о., and опр. № 1788 от 17.02.2006 г. по адм. д. № 1388/2006 г., ВАС, V о., as well as paragraph   30 below). 5.     Liability of the authorities for unlawful decisions, actions or omissions 30 .     Section 1(1) of State and Municipalities Liability for Damage Act 1988 provides that the State is liable for damage suffered by individuals or legal persons as a result of unlawful decisions, actions or omissions by State or municipal authorities or civil servants, committed in the course of or in connection with administrative action. By section 1(2) of the Act and Article 203 § 1 of the Code of Administrative Procedure 2006, such claims fall within the jurisdiction of the administrative courts. 31 .     Section 2(1) of the Act provides for liability of the investigating and prosecuting authorities and the courts in several specific types of situation: unlawful detention; bringing of charges, if the accused has been acquitted or the proceedings have been discontinued on certain grounds; conviction and sentencing, if the conviction has later been set aside; coercive medical treatment or coercive measures imposed by a court, if its decision has later been quashed as being unlawful; serving of a sentence over and above its prescribed duration; and unlawful use of special means of surveillance. By section 2(3) of the Act, such claims fall within the jurisdiction of the civil courts. 32 .     In a binding interpretative decision of 22 April 2005 (тълк. реш.   №   3 от 22.04.2005 г. по тълк. гр. д. № 3/2004 г., ВКС, ОСГК), the Supreme Court of Cassation held, inter alia , that the administrative authorities cannot incur liability under these provisions for actions or decisions that they have taken under orders from the investigating or prosecuting authorities, which cannot not incur liability in respect of such actions or decisions either, unless they fall within one of the types of situation exhaustively set out in section 2(1) of the Act. 33 .     However, in a judgment of 10 February 2014 (реш. № 1841 от   10.02.2014 г. по адм. д. № 13445/2012 г., ВАС, III о.), the Supreme Administrative Court held, contrary to an earlier judgment that it had given in relation to this issue (see реш. № 13496 от 11.11.2010   г. по адм.   д.   №   3090/2010 г., ВАС, III о.) and overturning the lower court’s ruling on this point, that the forceful manner in which the police had rushed into a person’s home early in the morning, handcuffed him even though he had not put up any resistance, taken him out in the street in his underpants, woken up his wife and children, and searched the premises in an overly aggressive manner, could, even though the search had been carried out in the context of a criminal investigation, be regarded as “administrative action” within the meaning of section 1(1) of the 1988 Act. The court noted in this connection that the claim did not concern the question whether the search had been properly ordered under the relevant provisions of the Code of Criminal Procedure 2005, but the narrower point whether the police had acted with appropriate restraint in carrying it out. On remittal, in a judgment of 19 February 2015 (реш. № 44 от 19.02.2015 г. по адм. д. №   127/2014   г., АС-Перник), the Pernik Administrative Court found, by reference to, inter alia , Article 3 of the Convention, that the actions of the police had been unwarranted and unlawful for the purposes of section 1(1) of the 1988 Act, and had caused that person mental suffering. It awarded him 5,000 Bulgarian levs (BGN) (equivalent to 2,556.46 euros (EUR)), plus interest, in non-pecuniary damages. However, the court dismissed his claims for damages in respect of the mental suffering that the police had allegedly caused to his children, chiefly on the basis that these claims should have been made on behalf of the children rather than in the claimant’s personal capacity. Both the claimant and the police appealed on points of law. The appeals (адм. д. № 7569/2015 г.) are listed for hearing by the Supreme Administrative Court on 18 April 2016. 34 .     In a judgment of 3 January 2012 (реш. № 13 от 03.01.2012 г. по адм. д. № 8171/2011 г., АС-София-град), the Sofia City Administrative Court found that the mocking and disrespectful attitude of two police officers vis-à-vis a person whom they had arrested and detained for a few hours in a police station, was, quite apart from the detention itself, “administrative action” within the meaning of section 1(1) of the 1988 Act, and had caused that person mental suffering. The court awarded the claimant BGN 500 (equivalent to EUR 255.65), plus interest, in non ‑ pecuniary damages. On appeal, the Supreme Administrative Court fully upheld the judgment, except as regards the quantum of the award, which it increased to BGN 2,000 (equivalent to EUR 1,022.58) (see реш. № 2363 от 19.02.2013 г. по адм. д. № 4187/2012 г., ВАС, III о.). 35.     However, in a decision of 26 September 2011 (опр. № 64 от 26.09.2011 г. по адм. д. №   54/ 2011   г., ВАС и ВКС, смесен петчл. с-в), a joint formation of the Supreme Administrative Court and the Supreme Court of Cassation has held that, when joined to a claim under section 2(1) of the 1988 Act for the unlawful bringing of charges, a claim for damages concerning detention in connection with those charges should not be seen in isolation and falls to be examined by the civil courts rather than the administrative ones. 36 .     In a judgment of 12 April 2013 (реш. № 16059 от 12.04.2013 г. по адм. д. № 15439/2012 г., ВАС, III о.), the Supreme Administrative Court held that the suffering that the police had caused to a detainee by needlessly handcuffing him in public in the course of his police detention which had already been declared unlawful in earlier judicial review proceedings (see paragraph 29 above), amounted to damage which could be indemnified under section 1(1) of the 1988 Act. COMPLAINTS 37.     The applicants complain under Article 3 of the Convention that the police searched their house and arrested the first applicant in a needlessly forceful and public manner, which caused undue mental suffering to all of them and especially to the third and fourth applicants, who were at that time very young, and then kept the first applicant handcuffed behind his back for almost the entire duration of his detention in the police station. 38.     The applicants complain under Article 8 of the Convention that the searches in their house and the first applicant’s car and photography studio had not been properly circumscribed by the warrants that authorised them, encompassed many items containing personal and communications data, such as mobile telephones, computers, flash memory drives and memory cards – and later even the first applicant’s e-mail account – and were carried out in a chaotic and brutal manner, in breach of the applicable rules of criminal procedure. 39.     The applicants complain under Article 6 § 1 of the Convention that under Bulgarian law they cannot bring judicial proceedings in which to challenge these searches and seizures and obtain damages in relation to them. 40.     The applicants complain under Article 13 of the Convention that they do not have an effective domestic remedy in respect of the alleged breaches of Articles 3, 6 § 1 and 8, because under Bulgarian law it is not possible to obtain judicial review of searches and seizures carried out in the context of criminal proceedings. QUESTIONS TO THE PARTIES 1.     Did the applicants exhaust domestic remedies with respect to their complaint under Article 3 of the Convention of the forceful manner in which the police carried out the searches on 14 March 2014 and arrested the first applicant, and did they have an effective domestic remedy in this respect, as required by Article 13 of the Convention? In particular, would have they been able to obtain adequate redress in respect of these matters by way of a claim for damages under section 1(1) of the State and Municipalities Liability for Damage Act 1988, bearing in mind the recent case-law of the Supreme Administrative Court in relation to such issues (see paragraphs 33, 34 and   36 of the Statement of facts and complaints)?   2.     Did the forceful manner in which the police carried out the searches and arrested the first applicant amount to inhuman or degrading treatment within the meaning of Article 3 of the Convention in respect of all four applicants?   3.     Did these searches carried out in the applicants’ house and the first applicant’s car and photography studio comply with the requirements of Article 8 § 2 of the Convention? Did the ensuing search of the first applicant’s e-mail account comply with these requirements?   4.     Did the applicants have access to a court to challenge these searches and seizures, as required under Article 6 § 1 of the Convention?   5.     Did the applicants have at their disposal an effective domestic remedy in respect of their complaints under Articles 3 and 8 of the Convention, as required by Article 13 of the Convention?