Published on 12 September 2022

FOURTH SECTION

Application no. 938/21 Mihaela Nikolaeva PETROVA against Bulgaria lodged on 18 December 2020 communicated on 26 August 2022

STATEMENT OF FACTS

1. The applicant, Ms Mihaela Nikolaeva Petrova, is a Bulgarian national who was born in 1985 and lives in Sofia. She is represented before the Court by Ms A. Kachaunova, a lawyer practising in Sofia.

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

3 . In an order of 13 March 2020, the Minister of Health imposed a range of restrictions meant to stop or slow the spread of COVID-19. Those included (a) a prohibition on any visits to bars, restaurants and similar establishments; (b) an order to all employers to introduce teleworking to the extent compatible with the nature of the work; and (c) a ban on any “organised meetings”. On 14 May 2020 the Minister imposed similar restrictions, this time covering only the restaurants’, bars’ and similar establishments’ closed spaces, and banning “organised meetings” of more than ten people.

4 . As a result of those restrictions, the applicant, who was employed as a restaurant waitress, was placed on unpaid leave from 14 March 2020 onwards.

5 . On 8 April 2020 the applicant emailed a letter to various media, in which she, among other things, asked about the parameters of the no-interest loans promised by the authorities in connection with the anti-COVID-19 restrictions, and complained about the financial impact of those restrictions. She then posted the letter on her Facebook wall, allowing full public access to the post, adding that she would wait for a reply until 14 April 2020 and that, if she got none, she would go in front of the Council of Ministers with a mask and gloves and hold a poster with such questions.

6 . The following day, 9 April 2020, the applicant posted a video in a Facebook group called “I WILL not vote for Boyko Borisov and GERB!”. [1] She added a link to her previous day’s post. In that video she, among other things, asked why, unlike in many other countries, in Bulgaria there was no financial support, or at least no-interest loans, for people who had been forced to pause working or who had lost their jobs as a result of the anti-COVID-19 restrictions, and called on the authorities to tackle the problem. She stated that if she did not get answers by the end of the week (that is, by 12 April), she would go out to protest in front of the Council of Ministers, with a mask and gloves, and called on others to do the same.

7 . The following day, 10 April 2020, the applicant wrote on her Facebook wall, again allowing full public access to the post, that at 11 a.m. on 13 April 2020 she would go in front of the Council of Ministers to protest, wearing a mask and gloves and keeping distance, because “the measures [were] important but [she] would protest”. She invited anyone who wished to join her to do so.

8 . The following day, 11 April 2020, the applicant wrote another post on her Facebook wall, in which she copy-pasted a call from someone else for a march at 1 p.m. on 13 April 2020, going from Sofia University to the Council of Ministers, to protest against the anti-epidemic measures imposed by the authorities. The call invited all would-be participants to “show that they [were] citizens complying strictly with the anti-viral measures”, and hold the march by moving in a single line and by keeping a distance of two to three meters between each other.

9 . At 9.45 a.m. on 13 April 2020 two police officers from the Chief Directorate for Combatting Organised Crime came to the applicant’s front door and admonished her in writing (see paragraph 17 below) “not to infringe the regulations, rules and measures issued to combat the spread among humans of ... COVID-19”, and that according to Article 355 § 1 of the Criminal Code (see paragraph 24 below) doing so was punishable with up to three years’ imprisonment. They also admonished the applicant “not to carry out indecent acts seriously infringing public order and manifesting overt disregard for society”, and that according to Article 325 § 1 of the same Code (see paragraph 23 below) doing so was punishable with up to five years’ imprisonment. [2]

10 . The officers also served on the applicant a summons for a police interview at 11 a.m. the same day (see paragraph 20 below). The applicant wrote on the summons that she could not go to the police station at 11 a.m.

11 . She nonetheless appeared for the interview at 11 a.m. The officers presented to her the Facebook post of 11 April 2020 (see paragraph 8 above) and asked her to give explanations about the protest that she was planning.

12 . On 4 May 2020 the applicant asked the Chief Directorate to inform her about the course of any investigation against her. She received no reply.

13 . On 29 May 2020 a media outlet asked the Chief Directorate a series of questions related to its actions in the applicant’s case. The Ministry of Internal Affairs replied to some of those questions on 10 June 2020, specifying, among other things, that twenty-eight people had been admonished in connection with online publications relating to COVID-19. It refused to comment specifically on any steps taken in the applicant’s case, saying only that a criminal investigation had been opened on suspicion of an offence under Article 320 § 1 taken together with Article 355 § 2 of the Criminal Code (see paragraphs 22 and 24 below).

14 . On 6 June 2020 the applicant’s lawyer asked the Chief Directorate for copies of any documents relating to the visit to the applicant’s home and of the summons to her, and for information about the grounds on which the applicant had been summoned for an interview and about the course of any investigation against her. On 12 June 2020 the Chief Directorate replied that a criminal investigation had been opened against the applicant on suspicion that she had called for an offence to be committed in the course of a pandemic and a state of emergency, contrary to Article 320 § 1 taken together with Article 355 § 2 of the Criminal Code (see paragraphs 22 and 24 below), and that only the supervising prosecutor could permit access to the case file.

15 . On 29 June 2020 the applicant’s lawyer asked the Sofia district prosecutor’s office for access to the case file of the criminal investigation against the applicant. On 7 July 2020 the prosecutor in charge of the case refused the request, on the basis that those documents, including any documents from the preliminary investigation preceding the opening of a formal criminal one, were covered by the investigative secret, and that the applicant and her lawyer could inspect them only if and when charges would be brought against her. Moreover, the applicant had not given a concrete reason why she needed access to those documents. The prosecutor also noted that the criminal investigation relating to the applicant’s call for protesting on 13 April 2020 had been opened on 23 April 2020, on suspicion of offences under Articles 320 § 1 and 355 § 2 of the Criminal Code (see paragraphs 22 and 24 below). It had been entrusted to the Chief Directorate for Combatting Organised Crime, and no-one had been charged in it yet.

16 . On 6 June 2020 the applicant’s lawyer asked the Inspectorate of the Ministry of Internal Affairs to look into the Chief Directorate’s investigation against the applicant, and check in particular on what grounds the Chief Directorate had been conducting that investigation and whether officers had exceeded their powers in relation to that. On 2 September 2020 the Chief Directorate’s head, to whom the Inspectorate had forwarded the request, informed the applicant that he had tasked a commission to inquire into her allegations, and that this commission’s inquires had not revealed any unlawful conduct by officers of the Chief Directorate.

RELEVANT LEGAL FRAMEWORK

17 . If the police have enough information to suspect that someone might commit a criminal offence or breach public order, they may admonish him or her orally or in writing not to do so (section 65(1) of the Ministry of Internal Affairs Act 2014, which superseded the identically worded section 56(1) of the Ministry of Internal Affairs Act 2006, which had in turn superseded the almost identically worded section 63(1) of the Ministry of Internal Affairs Act 1997). A written admonishment must specify the punishment prescribed for the respective offence or breach of public order (section 65(2) of the 2014 Act and its predecessors, section 56(2) of the 2006 Act and section 63(2) of the 1997 Act).

18 . The Supreme Administrative Court has consistently held that such admonishments are not decisions amenable to judicial review because – unlike for instance police orders – they do not in themselves create rights or duties for their addressees, or affect in themselves their rights, freedoms or legal interests (see, for instance, опр. № 7489 от 20.06.2008 г. по адм. д. № 1584/2008 г., ВАС, III о. , relating to the 1997 Act; опр. № 10994 от 28.09.2010 г. по адм. д. № 12045/2010 г., ВАС, I о. ; опр. № 2866 от 25.02.2011 г. по адм. д. № 2039/2011 г., ВАС, V о. ; опр. № 699 от 13.01.2012 г. по адм. д. № 424/2012 г., ВАС, V о. ; опр. № 11586 от 16.09.2013 г. по адм. д. № 12044/2013 г., ВАС, V о. ; and опр. № 4174 от 26.03.2014 г. по адм. д. № 4051/2014 г., ВАС, V о. , relating to the 2006 Act; and опр. № 3277 от 25.03.2015 г. по адм. д. № 3063/2015 г., ВАС, V о. ; опр. № 6339 от 30.05.2016 г. по адм. д. № 5741/2016 г., ВАС, V о. ; опр. № 11332 от 26.09.2018 г. по адм. д. № 10453/2018 г., ВАС, V о. ; опр. № 386 от 10.01.2019 г. по адм. д. № 14829/2018 г., ВАС, V о. ; опр. № 8700 от 02.07.2020 г. по адм. д. № 6236/2020 г., ВАС, V о. ; and опр. № 4279 от 05.05.2022 г. по адм. д. № 3955/2022 г., ВАС, V о. , relating to the 2014 Act). The court adhered to this position in a case in which the claimant had been admonished not to take part in a rally (see опр. № 3346 от 07.03.2019 г. по адм. д. № 1824/2019 г., ВАС, V о. ), and in two cases relating to potential breaches of the anti-COVID-19 restrictions imposed in early 2020 (see опр. № 8478 от 30.06.2020 г. по адм. д. № 5958/2020 г., ВАС, V о. , and опр. № 8983 от 07.07.2020 г. по адм. д. № 6342/2020 г., ВАС, V о. ). It has also held that such admonishments do not directly affect their addressee’s right to move freely (see опр. № 557 от 16.01.2014 г. по адм. д. № 392/2014 г., ВАС, V о. ), and has refused to accept that they produce legal effects, and should hence be amenable to judicial review, because they can intimidate their addressees (see опр. № 4311 от 28.03.2014 г. по адм. д. № 4196/2014 г., ВАС, V о. ).

19 . By a similar token, the Supreme Administrative Court has held that such admonishment cannot serve as a basis for a claim for damages under section 1(1) of the State and Municipalities Liability for Damage Act 1988 (see опр. № 5557 от 22.04.2013 г. по адм. д. № 4749/2013 г., ВАС, I о. ).

20 . To carry out their duties, the police may summon people to their premises (section 69(1) of the Ministry of Internal Affairs Act 2014). The summons must set out why it is sent, and where and when the people being summoned must appear, and be in writing, but in urgent cases it can be made by telephone or fax (section 69(2) and (3)). Failure to comply with such summons without a valid excuse is punishable by an administrative fine (section 258(1) and (2) of the same Act).

21 . It appears that the Bulgarian courts have so far dealt with two claims for damages against the police under section 1(1) of the State and Municipalities Liability for Damage Act 1988 for alleged breaches of the provisions governing such summonses. The first claim was dismissed (see реш. № 167 от 14.06.2019 г. по адм. д. № 28/2019 г., АдмС-Перник , upheld by реш. № 12114 от 30.09.2020 г. по адм. д. № 8894/2019 г., ВАС, III о. ). The second was allowed on appeal, on the basis that the police had summoned the person concerned by telephone even though the case had not been urgent, thus failing to follow the proper procedure (see реш. № 2011 от 02.03.2022 г. по адм. д. № 7934/2021 г., ВАС, III о. , overturning реш. № 3345 от 21.05.2021 г. по адм. д. № 11801/2020 г., АдмС-София ).

22 . Article 320 § 1 of the 1968 Criminal Code makes it an offence to call overtly in front of many people for the commission of an offence, or do so by distributing printed matter or in a similar way. The possible punishment is up to three years’ imprisonment, but not more than the punishment prescribed for the offence whose commission is being urged.

23 . Article 325 § 1 of the same Code makes it an offence (hooliganism) to carry out indecent actions which grossly infringe public order and show overt disrespect toward society. The punishment can be up to two years’ imprisonment or probation, coupled with public reprimand. If those actions are accompanied by resistance against a law-enforcement officer, or are characterised by exceptional cynicism or arrogance, the punishment can be up to five years’ imprisonment (Article 325 § 2).

24 . Article 355 § 1 of the same Code, as amended most recently in March 2020, makes it an offence to infringe regulations, rules or measures issued to combat the appearance or spread of a contagious disease affecting humans. The punishment can be up to three years’ imprisonment and a fine ranging from 1,000 to 10,000 Bulgarian levs (BGN). If the offence is committed at a time of an epidemic, pandemic or state of emergency related to cases of death, the punishment can be up to five years’ imprisonment or a fine ranging from BGN 10,000 to BGN 50,000 (Article 355 § 2).

25 . The organisers of a rally must inform the local mayor of it, in writing at least forty-eight hours in advance, but in urgent cases a one-day notice is sufficient (section 8(1) and (2) of the Meetings, Rallies and Marches Act 1990). The respective time-limits for marches are seventy-two hours and two days (section 11(1)).

26 . A rally or march not organised in advance or conducted in breach of the requirements of the 1990 Act may be stopped by the local mayor (section 13(1)), in which case the participants must disperse (section 13(2)). The courts have clarified that a rally or march is in breach of the Act’s requirements if, among other things, the notification duty in sections 8 or 11(1) has not been complied with (see реш. № 5636 от 10.10.2017 г. по адм. д. № 2255/2017 г., АдмС-София , upheld by реш. № 10028 от 23.07.2018 г. по адм. д. № 13024/2017 г., ВАС, III о. , and реш. № 5561 от 04.10.2021 г. по адм. д. № 2187/2021 г., АдмС-София , apparently final).

COMPLAINTS

27 . The applicant complains under Articles 10 and 11of the Convention that the police admonished her not to go out to protest, summoned her for an interview at the precise time when she had stated that she would go out to protest, and opened a criminal investigation against her in relation to that.

28 . She further complains under Article 13 of the Convention that she did not have an effective remedy in that respect, and that she could, in particular, not challenge the admonishment and the summons.

QUESTIONS TO THE PARTIES

1. Has there been an “interference” with the applicant’s right to freedom of expression under Article 10 of the Convention or a “restriction” of her right to freedom of assembly under Article 11 of the Convention (as regards the criminal proceedings against the applicant, see, mutatis mutandis , Stefanov v. Bulgaria (dec.), no. 51127/18, § 74, 8 September 2020, and, as regards the police admonishment and interview, see, mutatis mutandis, Singartiyski and Others v. Bulgaria , no. 48284/07, § 42, 18 October 2011, and Trade Union of the Police in the Slovak Republic and Others v. Slovakia , no. 11828/08, §§ 59-61, 25 September 2012)?

2. If so, was that “interference”, respectively “restriction”, “prescribed by law”, in the light of, in particular, the manner in which it was carried out, and “necessary in a democratic society” to attain a legitimate aim, as required by Article 10 § 2 and Article 11 § 2 of the Convention (see, mutatis mutandis , Communauté genevoise d’action syndicale (CGAS) v. Switzerland , no. 21881/20, §§ 75-92, 15 March 2022)?

3. Did the applicant have an effective remedy in respect of her complaint under Articles 10 and 11 of the Convention, as required by Article 13 of the Convention? In particular, could she obtain appropriate redress by way of a claim for judicial review or a claim for damages in relation to the police admonishment and summons for an interview?

[1] . At that time Mr Boyko Borisov was Prime Minister and GERB was the main political party in the ruling coalition.

[2] . The maximum punishment under that provision is actually up to two years’ imprisonment (see paragraph 23 below).