ECHR decision of 26 March 2020 in The case "Pendov V. Bulgaria V. Bulgaria" (aplication N 44229/11).
In 2011, the applicant was assisted in the preparation of the aplication. The aplication was subsequently communicated to Bulgaria.
The case successfully considered an aplication about the seizure and retention by the Prosecutor's office for seven and a half months in the context of a criminal case against a third party of a computer server belonging to the applicant, which led to the restriction of the operation for a long time of another Internet site managed by the applicant and located on the server in question. The case violated the requirements of article 1 of Protocol No. 1 to the Convention for the protection of human rights and fundamental freedoms and article 10 of the Convention for the protection of human rights and fundamental freedoms.
The computer server belonging to the applicant was seized and held by the Prosecutor's office for seven and a half months in the context of a criminal case against a third party. It was found that the seized server partially hosted an Internet site that was suspected of copyright infringement. The retention of the server and the information on it also resulted in the long-term restriction of the operation of another Internet site managed by the applicant and located on the server in question.
POINT OF LAW
Regarding compliance with article 1 of Protocol No. 1 to the Convention. The fact that the server on which the applicant's website was located was never subject to verification in the criminal case against the applicant himself, but only against a third party, the ability to copy the necessary information, the importance of the server for the applicant's professional activities, as well as the partial inaction of the local Prosecutor's office meant that the retention of the applicant's server for seven and a half months was a disproportionate measure.
The case involved a violation of the requirement of article 1 of Protocol No. 1 to the Convention (adopted unanimously).
Regarding compliance with article 10 of the Convention. The applicant's website, dedicated to Japanese anime culture, was a means of expression for the applicant. The retention by the Prosecutor's office of the applicant's server and the information on it, which led to the unavailability of the applicant's website and then to the restriction of the site's operation for several months, was an interference with the applicant's right to freedom of expression. Even assuming that data recovery would allow the site to be fully restored, the court does not see why the applicant would be required to keep a complete copy of the data from his server at any given time.
The intervention had a legal justification provided for in the code of Criminal procedure and had legitimate aims in the form of preventing riots and crimes and protecting the rights of others. Despite the fact that the hold server of the applicant in criminal case was not necessary for the purpose of investigating, prosecuting for a long time inactive and have not taken any effort to rectify the consequences of their actions in respect of the applicant's right to freedom of expression, despite the fact that these effects authorities have repeatedly notified. In particular, the applicant complained that many sections of his site had stopped working and could not be restored, that the site was relatively popular and that its inaccessibility to visitors caused the applicant financial difficulties.
Although the applicant's server hosted a website that was suspected of publishing copyright-infringing material, the Bulgarian authorities never claimed that the applicant was in any way responsible for the alleged copyright violations. Therefore, the fact that the applicant was not subject to criminal, administrative or other liability could not be relevant to the analysis of the question of proportionality.
The expression used by the applicant was artistic in nature and as such did not enjoy a high degree of protection, unlike political statements. However, in the circumstances of the present case, this argument was not sufficient to shift the balance of interests in favour of the Bulgarian authorities, who noted that the applicant was not a journalist, informant or other person in need of enhanced protection.
Interference with the applicant's right to freedom of expression was not necessary in a democratic society.
The case violated the requirements of article 10 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The European Court awarded the applicant EUR 5,200 in respect of non-pecuniary damage, but the claim for pecuniary damage was rejected.