PREZHDAROVI v. BULGARIA JUDGMENT
11
16 December 1997, § 45, Reports 1997-VIII, and Heino, cited above, §§ 40
and 46).
45. As stated above, Article 191 § 1 of the 1974 Code allowed the police
to conduct an immediate search-and-seizure operation outside the criminal
proceedings if that was the only possibility of collecting and securing
evidence. The wording of that provision allowed the police authorities to
carry out searches without a prior judicial warrant and essentially gave them
the discretion to decide whether the circumstances were pressing. The
Court, however, doubts whether the circumstances in the present case were
really pressing, given that the prosecutor ordered the said operation three
weeks before it was conducted. The authorities received information about
the illegal distribution of computer products on 31 January, yet the
operation was scheduled for 21 February 2005. Therefore the authorities
had enough time to collect more information regarding the alleged criminal
conduct, to open criminal proceedings and to submit a prior request to the
court.
46. The Court has considered that in such a situation, the absence of a
prior judicial warrant may be counterbalanced by the availability of a
retrospective judicial review (see Heino, cited above, § 45, and
Smirnov v. Russia, no. 71362/01, § 45, 7 June 2007). It reiterates in this
respect that notwithstanding the margin of appreciation which the Court
recognises the Contracting States have in this sphere, it must be particularly
vigilant where, as in the present case, it appears that the authorities are
empowered under national law to order and effect searches without a
judicial warrant (see Heino, cited above, § 40).
47. The Court thus needs to examine whether the post factum judicial
review offered sufficient guarantees that the applicants’ right to respect for
their private life was not breached. The Court notes at the outset that the
relevant domestic law made no mention of the scope of the judicial
examination. Therefore the Court turns to the reasoning offered by the
domestic court when approving the operation. It notes in this connection
that the court limited its reasoning to describing factually the course of the
search-and-seizure operation and briefly citing the text of Article 135 § 2 of
the 1974 Code, stressing that there had been pressing circumstances and that
an immediate search and seizure had been the only means by which the
collection and preservation of the necessary evidence could be undertaken.
No additional reasoning as to the lawfulness or justification of the impugned
measure was given (see the similar approach in Gutsanovi, cited above,
§ 223).
48. The Government did not assert that the applicants had any other
opportunities to have the lawfulness and the justification of the impugned
measure reviewed by a court (see Gutsanovi, cited above, § 223).
49. Furthermore, the Court notes that following the seizure, the
applicants complained several times, asserting that the computers contained
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