Published on 22 May 2023

THIRD SECTION

Application no. 45864/22 Krasimir Ivanov Kanev and Bulgarian Helsinki Committee against Bulgaria lodged on 19 September 2022 communicated on 2 May 2023

SUBJECT MATTER OF THE CASE

In May and June 2021 the caretaker Minister of Internal Affairs stated that many people who had taken part in the 2020 protests against the previous government and the Chief Prosecutor, including politicians and activists of non-governmental organisations, had had their communications monitored “nearly round the clock” by the State Agency for National Security. Spurred by that revelation, in June 2021 the first applicant – who is the chairman of the applicant association, the Bulgarian Helsinki Committee – asked that Agency whether he or collaborators of the Committee had been covertly monitored throughout the previous ten years, and whether members or collaborators of the Committee had been recruited as undercover agents. In July 2021 the Agency refused to provide such information on the basis that it was classified.

The applicants sought judicial review. The Sofia City Administrative Court dismissed their claim (see реш. № 6820 от 19.11.2021 т. по адм. д. № 8299/2021 г., АС-София-град ). The applicants appealed, but on 6 July 2022 the Supreme Administrative Court upheld the lower court’s judgment. It held, in particular, that the applicants’ request for information had in effect concerned the Agency’s methods rather than personal data gathered by it. The only State authority which could disclose whether special means of surveillance had been deployed was the National Bureau for Control of Special Means of Surveillance, whereas the Agency could properly refuse to divulge such information on the basis that it was classified. It had also been proper for the Agency not to disclose who had been recruited by it (see реш. № 6724 от 06.07.2022 г. по адм. д. № 2157/2022 г., ВАС, V о. ).

In those judicial review proceedings, the Agency relied on an internal order listing the categories of information held by it which were classified. In separate proceedings, the first applicant asked the courts to declare that order void. In June 2022 a three-member panel of the Supreme Administrative Court allowed the claim, holding that the order, which it saw as a statutory instrument, had not been published and that the procedure for its adoption had not been duly followed (see реш. № 6191 от 22.06.2022 г. по адм. д. № 12238/2021 г., ВАС, VI о. ). Following an appeal by the Agency, a five-member panel of the same court quashed the three-member panel’s judgment and remitted the case. It held that the three-member panel had been incorrect to see the order as a statutory instrument; it was an internal act of the Agency, and the rules governing the adoption and publication of statutory instruments did not hence apply to it (see реш. № 11947 от 21.12.2022 г. по адм. д. № 7413/2022 г., ВАС, петчл. с-в ).

In the above-mentioned judgment of 6 July 2022, the Supreme Administrative Court refused the applicants’ request to stay the proceedings pending the outcome of the proceedings on the validity of the order.

The applicants complain under Article 8 of the Convention that the State Agency for National Security had very likely gathered and stored data about them but refused to disclose whether it had done so, that Bulgarian law did not lay down sufficient safeguards in that respect, and that the Supreme Administrative Court did not duly examine whether that refusal had been necessary. They further complain that the gathering and storage of data about their opinions, affiliations and activities was in breach of Articles 10 and 11 of the Convention, and, separately, that the Agency’s refusal to disclose whether it had gathered data about them was in breach of Article 10 of the Convention. Lastly, they complain under Article 13 of the Convention that they did not have an effective domestic remedy in respect of the possible covert gathering and storage of data about them.

QUESTIONS TO THE PARTIES

1. Has there been “interference” with the applicants’ rights under Article 8 of the Convention?

1.1. In particular, was data about them gathered and stored by the State Agency for National Security (see, mutatis mutandis , Amann v. Switzerland [GC], no. 27798/95, §§ 69-70, ECHR 2000-II; Shimovolos v. Russia , no. 30194/09, § 66, 21 June 2011; and Catt v. the United Kingdom , no. 43514/15, § 93, 24 January 2019)?

1.2. Also, did the refusal to inform the applicants about whether that Agency had gathered and stored data about them amount to such “interference” (see, mutatis mutandis , Segerstedt-Wiberg and Others v. Sweden , no. 62332/00, § 99, ECHR 2006-VII)?

1.3. If so, were those “interferences” “in accordance with the law” and “necessary in a democratic society” within the meaning of Article 8 § 2?

2.1. Has there been “interference” with, respectively “restriction” on, the applicants’ rights under Article 10, respectively Article 11, of the Convention, by reason of the alleged gathering and storage of data about their opinions, affiliations and activities by the State Agency for National Security (see Segerstedt-Wiberg and Others , cited above, § 107)?

2.2. If so, was that “interference”, respectively “restriction”, “prescribed by law” and “necessary in a democratic society” within the meaning of Article 10 § 2, respectively Article 11 § 2?

3.1. Did the refusal of the State Agency for National Security to disclose whether it had gathered data about the applicants interfere with their right to freedom of expression, in particular their right to “receive ... information”, within the meaning of Article 10 § 1 of the Convention (see Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, §§ 156-70, 8 November 2016)?

3.2. If so, was the interference “prescribed by law” and “necessary in a democratic society” within the meaning of Article 10 § 2?

4. Has there been a breach of Article 13 of the Convention? In particular, did the applicants have an effective domestic remedy in respect of the refusal of the State Agency for National Security to disclose whether it had gathered and stored data about them?