Published on 11 October 2021

FOURTH SECTION

Application no. 80857/17 Boris Antonov MITOV and Others against Bulgaria lodged on 18 November 2017 communicated on 23 September 2021

SUBJECT MATTER OF THE CASE

The Supreme Administrative Court (“the SAC”) was one of the first courts in Bulgaria to provide online access to all cases before it (later on, all courts in the country started doing so – see below). The SAC’s database, which was opened to the public in 2000 via its website, gave full access not only to all of its decisions, but also to the minutes of all public hearings before it and to all documents filed by the parties to the cases (submissions, evidence, lower court decisions, administrative decisions under challenge, and so on – which were being scanned). Until 2010, none of the documents published in that database were being redacted in any way. In 2010 the SAC began redacting the personal identification numbers of the people mentioned in those documents.

In March 2015 Bulgaria’s data protection authority, the Commission for Protection of Personal Data, upheld a complaint by an individual aggrieved that his names and address had been published in the SAC’s database, and instructed the SAC to rectify that. In October 2015 the Commission checked whether the SAC had complied with its instructions, and in December 2015 noted that in January 2016 the SAC was going to take steps to redact all personal data featuring in its online database.

In September 2016 the SAC’s President laid down anonymisation rules under which the only documents to be published in its online database were decisions of the court, minutes of public hearings before it, the front covers of case files, case registration cards, and lists of the persons summoned for hearings. Thirteen categories of data were to be redacted from those documents: (a) the names of the participants in the proceedings; (b) the names of any legal persons, associations, political parties and organisations; (c) email addresses; (d) IBAN numbers; (e) personal identification numbers; (f) identification numbers of legal persons; (g) addresses; (h) localities; (i) municipalities; (j) car registration numbers; (k) dates of birth; (l) street names; and (m) any other data relating to individuals which could directly or indirectly lead to their identification. The rules went on to specify that since scanned case documents could not be anonymised in that manner, they were not to be made available online.

The nine applicants – eight journalists from various media outlets specialising in reporting on the judicial system, and an association whose aims include promoting the improvement of the functioning of all public institutions – sought judicial review of the order of the SAC’s President introducing those anonymisation rules. [1] They chiefly argued that the overbroad manner in which the rules had been framed disproportionately restricted their right to obtain information as an aspect of their right to freedom of expression. The Sofia City Administrative Court and, on appeal, the SAC (in a final decision of 18 May 2017) held that the order was not amenable to judicial review at the applicants’ instance since the rules it had introduced concerned the SAC’s internal organisation and did not directly affect the applicants’ rights or legitimate interests, including their rights to freedom of expression and to seek and obtain information (see опр. № 989/14.02.2017 г., по адм. д. № 11173/2016 г., АС-София-град, and опр. № 6219 от 18.05.2018 г. по адм. д. № 4422/2017 г., ВАС, V о.).

In February 2021 the SAC’s President laid down new anonymisation rules ( link ).

The applicants complain under Article 10 of the Convention that the September 2016 anonymisation rules were too broad, covering categories of data which should have remained public, and that the implementation of those rules prevented them from analysing cases before the SAC and reporting properly on them. They emphasise that many of those cases had high public importance and did not concern personal matters.

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 handed down.

An amendment to section 64 which came into force in November 2017 provided for an exception from that principle of immediate publication. According to subsection 1, as re-worded, and a new subsection 2, judicial decisions in criminal cases which convict and sentence someone or which finally uphold convictions and sentences are to be published online only after the prosecuting authorities have informed the respective court that steps have been taken to enforce them.

The applicants complain under Article 10 of the Convention that this deferred-publication rule prevents them from analysing criminal cases and reporting properly on them.

QUESTIONS TO THE PARTIES

1. Can each of the nine applicants claim to be victim of a violation of Article 10 of the Convention, seeing that (a) those anonymisation rules do not concern them individually, and that (b) they did not request access to specific decisions by the Supreme Administrative Court or case materials, but simply sought to preserve the possibility of obtaining such access (see, mutatis mutandis , Cengiz and Others v. Turkey , nos. 48226/10 and 14027/11, §§ 47-55, ECHR 2015 (extracts), and Akdeniz and Others v. Turkey , nos. 41139/15 and 41146/15, §§ 69-70, 4 May 2021)?

2. Did those anonymisation rules and their implementation by the Supreme Administrative Court interfere with the applicants’ right to freedom of expression, in particular their right to “receive ... information”, within the meaning of Article 10 § 1 of the Convention (see Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, §§ 156-70, 8 November 2016, and, mutatis mutandis , Studio Monitori and Others v. Georgia , nos. 44920/09 and 8942/10, § 41, 30 January 2020)?

3. If so, was the interference “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention? In particular, did those anonymisation rules strike a proper balance between the applicants’ right to freedom of expression and any countervailing rights or interests, including rights protected under Article 8 of the Convention (see Z v. Finland , 25 February 1997, § 113, Reports of Judgments and Decisions 1997-I; L.L. v. France , no. 7508/02, §§ 33 and 47, ECHR 2006-XI; and Vicent Del Campo v. Spain , no. 25527/13, §§ 47-56, 6 November 2018), due regard being had to (a) the national authorities’ margin of appreciation in that domain (see C.C. v. Spain , no. 1425/06, § 35, 6 October 2009) and (b) the laws and practices of various Contracting States on the anonymisation of judicial decisions published online (described in this 2017 Report on the On-line Publication of Court Decisions in the European Union , at pp. 21-30, 61, 64-65, 67, 69, 73, 77, 79, 82, 84, 87-88, 90-91, 94-96, 98, 101, 104, 106, 110-11, 112, 116, 119, 121, 123, 126, 129, 131-32, 135, 138, and 142)?

1. Can each of the nine applicants claim to be victim of a violation of Article 10 of the Convention, seeing that (a) the deferred-publication rule does not concern them individually, and that (b) they did not request access to specific judicial decisions in criminal cases but simply sought to preserve the possibility of obtaining such access without any delay (see the authorities cited in question A.1 above)?

2. Did the deferred-publication rule and its implementation by the Bulgarian courts interfere with the applicants’ right to freedom of expression, in particular their right to “receive ... information”, within the meaning of Article 10 § 1 of the Convention (see the authorities cited in question A.2 above)?

3. If so, was the interference “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention? In particular, did the deferred-publication rule strike a proper balance between the applicants’ right to freedom of expression and any countervailing rights or interests, due regard being had to the national authorities’ margin of appreciation in that domain?

APPENDIX

List of the applicants

No.

Name

Year of birth/ registration

Nationality

1.Mr Boris Antonov Mitov

1985Bulgarian

2.Association for Optimisation of Justice and Administration

2007Bulgarian

3.Mr Rosen Rosenov Bosev

1983Bulgarian

4.Ms Elena Stefanova Encheva

1967Bulgarian

5.Ms Lora Orlinova Fileva

1986Bulgarian

6.Mr Krasen Nikolaev Nikolov

1982Bulgarian

7.Ms Doroteya Dachkova Nikolova

1980Bulgarian

8.Ms Ralitsa Hristova Petrova

1974Bulgarian

9.Ms Genka Dobrinova Shikerova

1978Bulgarian

[1] Eight other journalists were likewise claimants.