Published on 22 May 2023

THIRD SECTION

Application no. 6580/22 Green Alliance against Bulgaria lodged on 19 January 2022 communicated on 2 May 2023

SUBJECT MATTER OF THE CASE

The applicant association, Green Alliance, was formed in 2006 and has its registered office in Kostenets. It focuses on environmental issues.

In February 2008 the Bulgarian Government adopted Regulations for the application of the State Agency for National Security Act 2007. As initially worded, regulation 50 permitted the State Agency for National Security to infiltrate “agents in cover” ( служители на прикритие ) – which the Regulations differentiate from “agents under cover” ( служители под прикритие ) – in State authorities, in organisations, and in legal persons. In September 2018 regulation 50 was amended to permit “agents in cover” to be infiltrated also in civil societies and as persons exercising a liberal profession, except as practising lawyers. Such “work in cover” is possible if there is a “proven operative need”, which is the case if the Agency’s tasks cannot be carried out in another way (regulation 52(1) and (2)). The head of the respective division must justify the existence of such “operative need” before the Agency’s chairman (regulation 52(3)). The agent(s) and their task(s) are fixed by the Agency’s chairman in each particular case (regulation 53(2)).

Under regulation 56, which was repealed in September 2018, the authority in which the “agent in cover” would be infiltrated had to be informed about that. With the repeal of that regulation, there is now no such requirement.

In October 2018 the applicant association sought judicial review of regulations 49 to 62, as amended in September 2018. It argued, among other things, that they ran counter to Article 8 of the Convention since they enabled the Agency to monitor covertly and without oversight the in-house information and correspondence of any organisation or legal person, and to spy on its employees.

Having accepted that the applicant association had standing to seek judicial review of the Regulations, in a final judgment of 19 July 2021 the Supreme Administrative Court dismissed the claim. It noted, among other things, that the law drew a distinction between “agents under cover” and “agents in cover”. The analysis of the statutory provisions governing the use of special means of surveillance revealed that, unlike the former, the latter could not use such means. It followed that the argument, based on the Special Surveillance Means Act 1997, that the deployment of “agents in cover” had to be subjected to prior judicial control, as required by that Act with respect to special means of surveillance, was ill-founded. Moreover, in view of the wording of regulation 50, the work of “agents in cover” could not affect the private life, home or correspondence of an individual. The assertion that the regulation ran counter to Article 8 of the Convention was hence ill-founded as well (see реш. № 8672 от 19.07.2021 г. по адм. д. № 2863/2021 г., ВАС, петчл. с-в ).

The applicant association complains under Articles 6 § 1, 8 and 13 of the Convention that under the above-mentioned Regulations, as amended in September 2018, the State Agency for National Security can arbitrarily and without oversight infiltrate “agents in cover” in private organisations, including associations like itself. It points out in this connection that neither the Regulations nor any other rules of Bulgarian law lay down conditions for choosing the organisations in which such agents are to be infiltrated, or make provision for prior or subsequent review of the Agency’s decision to infiltrate an “agent in cover”.

QUESTIONS TO THE PARTIES

1. Can the applicant association claim to be a victim of a breach of Article 8 of the Convention and that there has been interference with its rights under that provision owing to the mere existence in Bulgaria of regulations permitting the State Agency for National Security to infiltrate “agents in cover” ( служители на прикритие ) in private organisations and legal persons (see, mutatis mutandis , Ekimdzhiev and Others v. Bulgaria , no. 70078/12, §§ 262-277, 11 January 2022)?

2. If the applicant association can claim to be a victim and that there has been interference with its rights under Article 8 of the Convention, was that interference “in accordance with the law” and “necessary in a democratic society” within the meaning of Article 8 § 2 (see, mutatis mutandis , Ekimdzhiev and Others , cited above, §§ 291-359)?