In Prezhdarovi v Bulgaria, the European Court of Human Rights has reiterated the importance of an effective judicial review of seizures of assets. It stated that a retroactive review by a judge after a seizure may in principle counterbalance the failure to obtain a judicial warrant prior to the seizure. However, this requires the retroactive scrutiny by a judge to provide sufficient safeguards against arbitrariness.
The applicants had established a computer club. Customers could use computers and play computer games installed on them for a fee. The first applicant, who was the owner of the club, paid licensing fees to the companies owning the software and computer games. In 2004, the contract expired and the first applicant failed to renew it.
Shortly after, a criminal complaint was lodged on the grounds that the applicants allegedly continued to use the software and sold illegal copies of computer games. The prosecutors ordered the police to investigate whether software was used and distributed in the applicant’s club in breach of the criminal procedure code. The prosecutor also ordered the police to secure evidence by seizing computers should the investigation lead to the conclusion that software was used and sold in an illegal manner.
Police officers visited the premises in which the applicant had run the computer club. The police officers ascertained that computer games were installed on the computers. There were people present and the cash till was open. When the applicants failed to produce invoices, receipts or other documentation proving that they were using the games legally, the police officers concluded that there was a sufficient suspicion of illegal activities and seized the computers.
Pursuant to article 135 of the Bulgarian Criminal Procedure Code as it stood at the relevant time, in principle a warrant was required for seizures. As an exception, police officers could carry out seizures in pressing circumstances, in which case the seizure had to be approved by a judge within 24 hours.
On the same day, a judge approved the seizure. The judge gave a brief description of what had happened. He pointed out that there had been pressing circumstances and that an immediate seizure had been the only available means to secure the evidence.
One day later, the first applicant lodged an application with the District Court requesting not to approve the seizure of the computers. He pointed out that there had been no pressing circumstances. He also claimed that the computers contained personal letters and personal information about friends and clients. The request was rejected as inadmissible on the grounds that the seizure had already been approved by the court and that this decision was not subject to appeal.
Both applicants filed a request with the prosecution to return the computers. The stated that the computers contained personal data and that they needed them to run their business, a typewriting service. The prosecutor denied the motion.
The first applicant sought judicial review pointing out that the computers contained personal data. The competent court rejected the request. It pointed out that the computers were currently being examined by experts and could not be returned. The Court did not deal with the applicant’s argument that the computers contained personal information and were needed for his business.
The applicant was convicted for illegal distribution of computer games.
The European Court of Human Rights scrutinized the seizure and the retention of the computers in light of article 8 ECHR (right to private life).
It was not in dispute between the parties that the seizure and retention of the computers amounted to an interference with the right to private life. Consequently, the European Court of Human Rights went on to examine whether the interference had been based on a law. The Court reiterated that this requirement did not only refer to the existence of a basis in domestic law but also entailed qualitative standards for the law in question. In particular, the provision on which the interference was based had to be accessible, sufficiently clear to make the scope of its application foreseeable and it had to be in keeping with the rule of law.
The European Court of human rights examined whether the legal provision governing the seizure had been compatible with the rule of law. It underscored that this requirement meant, in the context of seizures, that the domestic law afforded sufficient safeguards against arbitrariness.
The Court expressed doubts that there had actually been pressing circumstances which permitted the immediate seizure pursuant to Bulgarian law. It pointed to the fact that the visit to the premises of the applicants’ business had taken place three weeks after the criminal complaint, which should have given them enough time to collect additional information, institute criminal proceedings and obtain a judicial warrant first.
The Court pointed out that a lack of judicial review prior to the seizure could in principle be counterbalanced by the availability of a retrospective review. However, it came to the conclusion that the scrutiny of the measure by a judge had not provided sufficient safeguards against arbitrariness. It stated that the judge had only briefly described the factual situation leading to the seizure, cited the relevant provision and claimed that there had been pressing circumstances – without any further elaboration on why immediate action by the police had been necessary. Also, the judge had not dealt with the applicants’ assertion that the computers contained private information and that they were needed for their business at all. Due to this formalistic approach and the failure to examine arguments advanced by the applicants, the judicial review did not provide a sufficient safeguard against arbitrariness in the Court’s view. It found therefore a violation of article 8 ECHR.