Information Note on the Court’s case-law 238

March 2020

Pendov v. Bulgaria - 44229/11

Judgment 26.3.2020 [Section V]

Article 10

Article 10-1

Freedom of expression

Limited functionality of applicant’s cultural website due to unnecessary prolonged retention of his computer server in the context of criminal proceedings against third parties: violation

Article 1 of Protocol No. 1

Article 1 para. 2 of Protocol No. 1

Control of the use of property

Unnecessary prolonged retention of the applicant’s computer server in the context of criminal proceedings against third parties: violation

Facts – The applicant’s computer server was seized and retained by the local pu blic prosecutor’s office for about seven and a half months in the context of criminal proceedings against third parties. It was established that the server partially hosted a website suspected of a copyright violation. The retention of the server and the i nformation contained on it led to the limited functionality for a significant period of time of a website run by the applicant and hosted on that server.

Law

Article 1 Protocol No. 1: The fact that the applicant’s server had never been examined for the purposes of the criminal investigation which had not been directed against the applicant, but against third parties, the possibility of copying the necessary information, the importance o f the server for the applicant’s professional activity, as well as the partial inactivity of the local public prosecutor’s office, meant that the retention of the applicant’s server for seven and a half months had been disproportionate.

Conclusion : violati on (unanimously).

Article 10 of the Convention: The applicant’s website dedicated to Japanese anime culture constituted a means of exercising his freedom of expression. The retention of the applicant’s server and the information contained on it by the loca l public prosecutor’s office, which had led to the initial unavailability of the applicant’s website, followed by its heavily limited functionality for several months, amounted to an interference with his right to freedom of expression. Even assuming that the data would have allowed full recovery of the website, the Court did not see on what basis the applicant would have been obliged to keep a full back-up of the data on his server at any moment.

The interference had a valid legal basis in the Criminal Cod e of Procedure and had served the legitimate aims of prevention of disorder and crime and the protection of the rights of others. However, while the retention of the applicant’s server in criminal proceedings had proved to be unnecessary for the purposes o f the investigation, the prosecution authorities had remained inactive for a lengthy period of time. They had made no effort to remedy the effects of their actions on the applicant’s freedom of expression, despite having been informed of those effects on m any occasions. In particular, the applicant had complained that many of his website’s features had stopped working and could not be restored and that the site had been relatively popular and its unavailability had been causing him financial damage.

While t he applicant had hosted on his server a website suspected of publishing content in breach of copyright, at no point had the domestic authorities suggested that he bore any responsibility for the alleged copyright violations. The fact that no criminal, admi nistrative or other sanctions had been imposed on him could therefore not be relevant for the proportionality analysis.

The expression engaged in by the applicant had been artistic and as such did not enjoy the high level of protection attributed to political speech. Nevertheless, in the circumstances of the present case, that consideration had been insufficient to tip the balance in favour of the Government who had pointed out that the applicant had not been a journalist, a whistle-blower or another person needing enhanced protection.

The interference with the applicant’s right to freedom of expression had not been necessar y in a democratic society.

Conclusion : violation (unanimously).

Article 41: EUR 5,200 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See also Ahmet Yıldırım v. Turkey , 3111/10, 18 December 2012, Information Note 158 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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