Communicated on 10 July 2020 Published on 27 July 2020

FOURTH SECTION

Application no. 7610/15 Vasil Tonchev VASILEV against Bulgaria lodged on 30 January 2015

STATEMENT OF FACTS

1 . The applicant, Mr Vasil Tonchev Vasilev, is a Bulgarian national who was born in 1958 and lives in Sofia. He is represented before the Court by Ms S. Razboynikova, a lawyer practising in Sofia.

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . The applicant is a lawyer in private practice.

4 . 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.

5 . On 4 April 2010, when acquainting himself with the materials in one of the cases against his client, the applicant saw that one of the documents was an official transcript of a telephone conversation that he had had with the client on 21 March 2010, when he had called him from his mobile telephone.

6 . 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.”

7 . It later transpired that the client ’ s two mobile telephone lines had been placed under covert monitoring 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 monitoring had been carried out by the technical operations directorate of the Ministry of Internal Affairs, which had on 3 April 2010 drawn up the official transcript of the conversation and sent the intercept material to the prosecuting authorities.

8 . 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 27 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.

9 . The applicant also sent a copy of his complaint to the Supreme Bar Council, which on 3 June 2010 forwarded it to the Supreme Cassation Prosecutor ’ s Office.

10 . On 15 July 2010 the head of the inspectorate of the Supreme Cassation Prosecutor ’ s Office turned down the applicant ’ s request. She noted that at the time when the transcript of the intercepted conversation had been prepared, 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.

11 . The applicant appealed to the Chief Prosecutor. He pointed out, inter alia , that according to section 33(3) of the 2004 Act (see paragraph 27 below) conversations between lawyers and their clients were protected irrespective of their content.

12 . On 16 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 sought to disregard section 33(3) of the 2004 Act.

13 . On 24 November 2010, in the course of the criminal trial against the applicant ’ s client, at which he was likewise represented by the applicant, the Sofia City Court played a number of recordings of intercepted telephone conversations of the client, including the conversation with the applicant on 21 March 2010. According to the applicant, the trial was attended by a number of journalists who then reported on it.

14 . 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 33 below). He argued that the failure of the directorate ’ s officials who had intercepted and recorded his telephone 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 tapping 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 27 below) and of Article 8 of the Convention.

15 . In November 2011 the Sofia District Court held that it was not competent to hear the case and sent it to the Sofia City Administrative Court.

16 . Having received the case, the Sofia City Administrative Court classified it, on the basis that it concerned classified material: the recording and transcription of the applicant ’ s telephone conversation, obtained via secret surveillance.

17 . In August 2012 the Sofia City Administrative Court held that it was not competent to hear the case either, and sent it to a mixed five-member panel of the Supreme Administrative Court and the Supreme Court of Cassation for a decision on the jurisdiction issue. In October 2012 that panel held that since the case concerned law-enforcement rather than administrative activities, it fell within the jurisdiction of the Sofia District Court, and referred it back to that court for examination.

18 . The case remained classified even after its referral back to the Sofia District Court. According to the applicant, as a result all hearings in it were held in private.

19 . On 30 April 2013 the Sofia District Court allowed the applicant ’ s claim. It held at the outset that it did not fall to be examined under the State and Municipalities Liability for Damage Act 1988 (see paragraph 33 below), 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 4 above). The court went on to find that the content of the conversation between the two 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 prosecutor in charge of the criminal case against his client before the tapping of the client ’ s telephone had started on 17 March 2010. It followed that the 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 26 and 27 below), and also of Article 8 of the Convention. The formal transcription of the conversation instead of the destruction of the recording had likewise been in breach of those provisions.

20 . 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 34 below), on the basis that in its reasons it had analysed classified material: that resulting from the interception of the applicant ’ s conversation.

21 . The Prosecutor ’ s Office and the technical operations directorate of the Ministry of Internal Affairs both appealed.

22 . In a final judgment of 1 August 2014 the Sofia City Court quashed the lower court ’ s judgment and dismissed the applicant ’ s claim. It held that the claim, as framed by the applicant, only concerned the 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 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”. 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 27 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 tapped telephone line had been that of the client rather than that of the applicant.

23 . 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.

24 . 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 was 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 material obtained via secret surveillance was classified (see paragraph 34 below) and the instructions given in the interpretative decision issued on 3 December 2014 by the General Meeting of the Supreme Court of Cassation ’ s Criminal Divisions (see paragraph 36 below), there were no longer any grounds for its judgment to remain classified.

25 . 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 essentially the same reasons as those given by the lower court, that there were no longer any grounds for its judgment to remain classified.

Relevant LEGAL FRAMEWORK

26 . By Article 30 § 5 in fine of the Constitution of 1991, the secret of the communications between counsel and the people for whom they act is “inviolable”.

27 . Section 33(3) of the Bar Act 2004 provides that the conversations between a lawyer and a client cannot be intercepted and recorded, and that any possible recordings of such conversations cannot be used as evidence and are subject to immediate destruction.

28 . The statute governing the covert monitoring of communications, the Special Means of Surveillance Act 1997, as amended, does not contain any provisions specifically dealing with the deliberate or accidental interception of lawyers ’ communications.

29 . The issue appears to have only been touched upon in an internal instruction issued by the Chief Prosecutor on 11 April 2011 in the exercise of his power under section 138 of the Judicial Power Act 2007 to make instructions governing the work of the prosecuting authorities ( Инструкция за действията, които могат да извършват органите на досъдебното производство по отношение на адвокати ). In the instruction ’ s preamble, the Chief Prosecutor said that it was required in order to resolve existing inconsistent practices and to avert breaches of section 33 of the Bar Act 2004 (see paragraph 27 above).

30 . By point 12 of the instruction, special means of surveillance can be used with respect to a lawyer only when there is information which can provide grounds for a reasonable suspicion that he or she has, alone or with others, committed an offence.

31 . According to point 13 of the instruction, if in the course of covert monitoring the authorities record the conversation of lawyer with a client or with another lawyer and that conversation touches upon a client ’ s defence, they must not prepare an official transcript to be used in evidence, unless the recording contains information that the lawyer him- or herself has committed an offence.

32 . It does not seem that the instruction has been officially published. On 13 April 2011 the Chief Prosecutor did, however, sent a copy of it to the Supreme Bar Council.

33 . Section 2(1)(7) of the State and Municipalities Liability for Damage Act 1988, added in March 2009, provides that the State is liable for damage which the investigating and prosecuting authorities or the courts have caused to individuals through the unlawful use of special means of surveillance.

34 . According to point 6 of part II of Schedule no. 1 to the Protection of Classified Information Act 2002, the 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.

35 . According to Article 136 § 1 (1) and (4) of the Code of Civil Procedure, 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 should be conducted in private if (a) the public interest requires that, or (b) there is another good reason to do so.

36 . 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 broadly analogous provisions in the Code of Criminal Procedure, that the mere fact that a case touches upon material obtained by way of secret surveillance is not sufficient grounds to examine it in private, and that the court hearing the case must duly justify its decision to exclude the public, and do so only with respect to 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 the bits of its reasoning in which it comments on information which is a state secret. In arriving at those conclusions, the court relied on, inter alia , (a) the European Court of Human Rights ’ 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 fact that point 8 of part II of Schedule no. 1 to the Protection of Classified Information Act 2002 had been repealed in August 2013 (see paragraph 34 in fine above).

COMPLAINTS

37 . The applicant complains under Article 8 of the Convention that the covert interception, recording and transcription of the conversation between him and his client was unlawful and unnecessary in a democratic society.

38 . The applicant also complains under Article 6 § 1 of the Convention that (a) the claim for damages which he brought was not heard in public, and that (b) the courts ’ judgments in those proceedings were not made public either.

QUESTIONS TO THE PARTIES

1. Has there been a breach of the applicant ’ s right to respect for his private life and correspondence, contrary to Article 8 of the Convention? In particular, were the interception, recording and subsequent transcribing of the intercepted telephone conversation with his client “in accordance with the law” and “necessary in a democratic society”? In particular, did Bulgarian law lay down sufficient safeguards and procedures enabling the applicant to challenge the intercept material on the basis that it had been obtained in breach of the rules protecting lawyer-client privilege (see, mutatis mutandis , Dudchenko v. Russia , no. 37717/05 , § § 108-09, 7 November 2017; Pruteanu v. Romania , no. 30181/05, § § 49-55, 3 February 2015; and Versini-Campinchi and Crasnianski v. France , no. 49176/11, § § 69-74, 16 June 2016)?

2. Was the exclusion of the public from the proceedings for damages brought by the applicant “strictly necessary” for a purpose authorised by Article 6 § 1 of the Convention (see, mutatis mutandis , Nikolova and Vandova v. Bulgaria , no. 20688/04, §§ 71-77, 17 December 2013)?

3. Was the absence of “public pronouncement” of the judgments of the Sofia District Court and the Sofia City Court in the proceedings for damages brought by the applicant owing to the classification of the proceedings in breach of Article 6 § 1 of the Convention (see Fazliyski v. Bulgaria , no. 40908/05, §§ 67-70, 16 April 2013, and Nikolova and Vandova , cited above, §§ 84-86)?