Unnecessary seizure for 7.5 months of computer of an non-accused violated his property and freedom of expression rights

JUDGMENT

Pendov v. Bulgaria 26.03.2020 (no. 44229/11)

βsee here 

SUMMARY

Seizure of server for 7.5 months from a person who was not indicted. Professional use for website. Right to property and freedom of expression.

Restricted access to the applicant’s cultural web site on Japanese anime due to unnecessary and prolonged confiscation of his computer server in criminal proceedings against third parties.

The applicant’s computer server was seized by the Public Prosecutor’s Office for approximately 7.5 months in criminal proceedings against third parties. This server was found to be partially hosting another third-party site suspected of copyright infringement. However, the confiscation of the server along with the information contained therein led to the applicant’s site being restricted for a considerable period of time, causing him financial loss, without ever having been held liable for criminal or other intellectual property infringement.

The Court has found a violation of Article 1 of the First Additional Protocol and Article 10 of the ECHR.

PROVISIONS

Artic;e  of the First Additional Protocol

Article 10

PRINCIPAL FACTS

The applicant, Lazar Pendov, is a Bulgarian national who was born in 1986 and lives in Plovdiv
(Bulgaria).

The case concerned the police’s seizure and retention of a server hosting websites.

In June 2010 the police seized a server which partially hosted a website which had allegedly
uploaded a book to the Internet, in breach of copyright. The server also hosted a website dedicated
to Japanese anime culture, which was owned and administered by the applicant.

The applicant made repeated requests for the return of the server, complaining that his website
could not function without the data on it and stating that he had suffered “significant damage”. The
Chief Public Prosecutor’s Office ultimately made enquiries into his complaints and the server was
returned to him in February 2011. The server had not been examined by experts or in any other way
used for the purposes of the criminal investigation.

The applicant complained about the seizure and retention of his server under in particular Article 1
of Protocol No. 1 (protection of property) to the European Convention on Human Rights and Article
10 (freedom of expression) of the Convention.

THE DECISION OF THE COURT…

(a)   Article 1 of Protocol No. 1

The fact that the applicants server was never examined for the purposes of the criminal investigation which was not directed against the applicant, but against third parties, the possibility of copying the necessary information, the importance of the server for the applicants professional activity, as well as the partial inactivity of the district public prosecutors office in Sofia – mean that the retention of the applicants server between 21 June 2010 and 8 February 2011 was disproportionate. The national authorities thus failed to strike the requisite fair balance between the legitimate aim pursued in the case and the applicants rights under violation of Article 1 of Protocol No. 1.

Accordingly, there has been a violation of that provision.

Article 10

The Court observes that the applicants website dedicated to Japanese anime culture constituted a means of exercising his freedom of expression. 

The interference with the applicants freedom of expression was the result of the retention of both his hardware – the server – and the data held on it. Even assuming that the recovery of the data would have allowed the full recovery of the website, the Court does 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.

 Lastly, the Court points out that the limited functionality of the applicants website between June 2010 and February 2011 was due to the actions of the prosecution authorities, which retained for a prolonged period the server hosting that website. While these measures were not directed against the website at issue, which had not been the subject of any investigation, nor were there any allegations that it had breached the law, the authorities measures did lead to the actual restrictions discussed above.

The Court thus concludes that in the case there was an interference by a public authority with the applicants right to freedom of expression. That interference consisted of the retention of the applicants server and the information contained on it by the prosecution authorities, which led to the initial unavailability of the applicants website, followed by the sites heavily limited functionality for several months.

The interference with the applicant’s right to freedom of expression was not necessary in a democratic society.

The ECtHR found a violation of freedom of expression (violation of Article 10 of the ECHR)

Article 41

Just satisfaction: 5,200 euros (EUR) (non-pecuniary damage) and EUR 1,800 (costs and expenses)


ECHRCaseLaw

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