PREZHDAROVI v. BULGARIA JUDGMENT
9
B. Merits
1. The parties’ submissions
39. The Government submitted that the interference complained of was
justified under Article 8 of the Convention. In their view, it was in
accordance with the law and based on a reasonable suspicion that the first
applicant had committed an offence, namely that he had been illegally
distributing software. The first applicant had not been diligent in conducting
his business, as was evident from the fact that he had already been warned
by the police once and could have predicted the consequences of his
behaviour. The Government went on to argue that the interference had the
legitimate aim of prevention of crime and maintenance of fair competition.
They claimed that the interference was also proportionate: the officers who
had carried out the search and seizure had known where to search and what
to search for, and the operation had been conducted in the presence of the
applicants, a technician and two certifying witnesses. Also, the authorities
had carefully listed the seized computers in the search-and-seizure record,
retained the computers in accordance with the law and in connection with
the ongoing criminal proceedings, and the content of the computers had not
been made public. Furthermore, the approval of the record by the court had
been an important safeguard and had served as a guarantee for the
justification of the measure. Lastly, the Government pointed out that unlike
the cases of Iliya Stefanov v. Bulgaria (no. 65755/01, 22 May 2008),
Kopp v. Switzerland (25 March 1998, Reports of Judgments and Decisions
1998-II) and Heino v. Finland (no. 56720/09, 15 February 2011), the
search-and-seizure operation had not touched upon any privileged material.
40. The applicants argued that the interference had not been justified
under Article 8 of the Convention. In particular, they stated that the
prosecutor could have interviewed V.E. to verify his statements. They
claimed that there had been no reasonable suspicion and therefore no basis
for the search-and-seizure operation. In response to the Government’s
assertion that the first applicant had already been warned by the police once,
the applicants submitted that at that time they had presented all the
necessary documents. In their view, the operation had been unlawful
because the circumstances had not been pressing: the authorities had
planned the operation carefully and could have sought judicial approval
beforehand. The subsequent judicial review had been formalistic and had
failed to provide any safeguards against abuse, and the applicants had been
unable to present their arguments. Also, it had not been necessary for the
authorities to seize the computers; they could have seized only the computer
products by recording them on paper or by some other means. Lastly, the
applicants asserted that the computers had been retained without due
consideration of the fact that they had contained personal information.
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