CEDH · CASELAW;CLIN;ENG — 28 juin 2007

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Bulgaria - 62540/00 Judgment 28.6.2007 [Section V] Article 34 Victim Association could claim to be directly affected by a law which allows the use of secret surveillance measures: victim status accepted Article 8 Article 8-1 Respect for correspondence Lack of sufficient safeguards in a law allowing the use of secret surveillance measures: violation Facts : The applicants are a non-profit-making association and a lawyer who acts as counsel in civil and criminal cases and represents applicants in proceedings before the European Court of Human Rights. The applicants claimed that, under the Special Surveillance Means Act of 1997, they could be subjected to surveillance measures at any time without notification. Law : Article   34 – To the extent that a law instituted a system of surveillance under which all persons in the country concerned were liable to have their mail and telecommunications monitored, without their knowledge (save indiscretions or subsequent notification), it directly affected all users or potential users of the postal and telecommunication services in that country. The applicant association was, contrary to what the Government had suggested, not wholly deprived of the protection of Article   8 by the mere fact that it was a legal person. Its mail and other communications, which had been in issue in the present case, were covered by the notion of “correspondence” which applied equally to communications originating from private and business premises. The Article   8 rights in issue in the present case were those of the applicant association, not of its members. There had therefore been a sufficiently direct link between the association as such and the alleged breaches of the Convention. It could therefore claim to be a victim within the meaning of Article   34. Article   8 – The law at issue did not provide for any review of the implementation of secret surveillance measures by a body or official that was either external to the services deploying the means of surveillance or at least required to have certain qualifications ensuring its or his independence and adherence to the rule of law. It made no provision for the judge to be informed of the results of the surveillance or require the judge to review whether the provisions of the law had been complied with. Moreover, some safeguards were applicable only in the context of pending criminal proceedings and did not cover all situations envisaged by the law, such as the use of special means of surveillance to protect national security. The Court also noted the apparent lack of regulations specifying with an appropriate degree of precision the manner intelligence obtained through surveillance was screened, the procedures for preserving its integrity and confidentiality and the procedures for its destruction. Overall control over the system of secret surveillance was entrusted solely to the Minister of Internal Affairs – who was directly involved in the commissioning of special means of surveillance – and not to independent bodies. The manner in which the Minister was to exercise this control was not set out in the law.The law did not provide for the notification of persons subjected to monitoring under any circumstances or at any time, even after it had ceased. The persons concerned were accordingly unable to seek redress for unlawful interferences with their Article   8 rights. The statistics showed that the system of secret surveillance in Bulgaria had been overused. In sum, Bulgarian law did not provide sufficient guarantees against the risk of abuse inherent in any system of secret surveillance. The interference with the Article   8 rights of the applicants had therefore not been “in accordance with the law”. Conclusion : violation (unanimously). Article   13 – Bulgarian law did not provide effective remedies against the use of special means of surveillance. Conclusion : violation (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes