DISSENTING OPINION OF JUDGE VEHABOVIĆ

I regret that I have been unable to agree with my colleagues that there has been a violation of Article 8 of the Convention in the present case. I am not persuaded that there is sufficient factual grounding to hold that the applicant ’ s right to “home” and “private life”, in the terms of Article 8, has been violated.

When the first applicant (assisted by the second) opened an internet club in his garage, he rented computers to his clients and paid the necessary licensing fees to the distributors of the companies which owned the relevant copyrights until 2004, when he failed to renew his contracts with the distributors. On 3 April 2004 the police conducted a check on the applicants ’ premises and warned the first applicant to abstain from illegally reproducing and distributing software. The applicant failed to abstain and continued to illegally reproduce and distribute software.

In consequence, the police conducted a search-and-seizure operation at the internet club. The police seized five computers containing illegally used software.

On 8 November 2005 the first applicant was charged, inter alia , with the unlawful distribution of computer programs, computer games and films. That judgment was upheld at final instance on 22 December 2008 by the Supreme Court of Cassation, which concluded that the first applicant had lawfully acquired title to the computer games but that he had been distributing them illegally by renting the games to his clients. It also held that the first applicant had been illegally reproducing computer programs and films. The court found that the first applicant ’ s conduct had resulted in significant damage. He was sentenced to one year and six months ’ imprisonment, suspended for three years, and ordered to pay a fine of BGN 4,000. The computers were confiscated.

Both applicants requested on several occasion that the confiscated computers be returned, but their requests were dismissed.

In their complaints to this Court, the applicants relied on Article 8, alleging that the search of their garage and the seizure of five computers had not been conducted in accordance with the law and, in particular, that private documents contained in the seized computers, and which were unrelated to the criminal proceedings against the first applicant, had been caught up in the search-and-seizure operation.

I dissent from the majority for the following reasons:

Article 8 is not applicable to the facts of the case. The first applicant was charged and sentenced for illegal use of software installed on the confiscated computers. Both applicants submit that the confiscated computers contained personal data. It is well known that a computer is made up of hardware and software. Hardware without software is a merely a box and cannot contain personal data as alleged by the applicants. The applicants did not specify which kind of software contains their personal data, and whether it was legally or illegally installed on the computer. That omission renders their allegation in relation to the scope of Article 8 completely unsubstantiated and unsupported by the necessary details, crucial for the applicability of Article 8 of the Convention.

Furthermore, bearing in mind that the first applicant was sentenced for illegal use of software, it appears that through his request for return of the confiscated computers (together with software installed on them), he is in fact seeking to regain possession of intellectual property acquired by committing a criminal act. In any democratic country it would be unprecedented that property acquired as a result of a criminal act be returned to a convicted person, even if that property contained personal data, in order to satisfy the requirements of Article 8 under the concepts of “home” or “private life”.

Moreover, the confiscated computers were used in the applicants ’ internet club. These computers were used by visitors to the club. I even assume that the personal data on the computers were available to visitors (if not, the applicants did not specify this in their submission). A question arises: can we consider data as personal for the purposes of the Article 8 if it was previously accessible to everyone with the consent of the owner of that personal data?

Finally, as mentioned above in regard to the difference between hardware and software, the only possible way to deal with this case was primarily from the perspective of Article 1 of Protocol No. 1 and possibly Article 6. I consider that the applicants are entitled to request repossession of their property, except for that acquired by a criminal act. Any omission regarding the legality of the search-and-seizure operation on the Government ’ s part may fall under Article 6 and Article 1 of Protocol No. 1, but not under Article 8 of the Convention in these particular circumstances.