Respect for private and family life, home and the correspondence
In 2009, the main problems with regard to the respect for private life, home and correspondence were caused by the worsening of the legal guarantees for protection against the illegal use of special reconnaissance means and by the eviction of Roma from their only homes, which were demolished by local authorities without the provision of alternative housing. The elimination of the possibility for arbitrary monitoring of inmate correspondence with the adoption of the new Enforcement of Penalties and Arrests Act in March was a positive development.
In early November, parliament adopted amendments to the Special Surveillance Reconnaissance Means Act, changing the legal and institutional framework for the control over these means. The independent National Bureau for Control of Special Surveillance Means (SSM) – established under the December 2008 amendments of the law arising from the ECtHR decision on Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria – was eliminated. It was replaced by a parliamentary committee comprised of representatives of the major political parties. Its competences were reduced. By the amendments to Article 34 (4) of the law, the competences of this control body “to issue compulsory instructions related to improving the use and the application of special reconnaissance means” was amended into “to make proposals on improving the procedures with regard to the use and the application of special surveillance means”. The legal conditions with regard to notifying individuals about the use of SSM against them also deteriorated. In the old act, which was inconsistent with the provisions of international human rights law as it did not contain a requirement for an unconditional notification of the people under surveillance, such a requirement was imposed on the oversight body only with regard to cases in which the use of SSM was unlawful, and only if this did not compromise the purpose of using SSM. With the new amendments, these grounds were expanded over cases when there was a risk to reveal operating methods or technical means of surveillance, and when this creates a risk to the life or the health of the undercover operatives or their family and relatives. Expanded like this, the grounds for non-notification allow for notification in very rare cases. In March 2010, Mikhail Ekimdzhiev, a lawyer from the Association for European Integration and Human Rights announced that he had once again filed an application before the ECtHR with regard to the inadequacy of the control by the new committee on the use of SSM.[1]
The only homes of more than 200 Roma were demolished in September in Burgas, on the grounds that the buildings were illegal. No alternative accommodation was provided. Twenty-seven buildings were demolished on 8 September in the Gorno Ezerovo neighbourhood, another 19 homes were demolished on 24 September in the Meden Rudnik neighbourhood. On 16 October, the authorities demolished a home in the Voenna Rampa neighbourhood in Sofia, on the grounds that the 32 Roma living there since 1991 were squatters and that the building was in risk of caving in. No alternative accommodation was offered to the inhabitants, among whom pregnant women and people with disabilities. The eviction occurred in cold, rainy weather in temperatures of around 2-3° С. In all these cases the demolition was supported by the police, which used disproportional force beating citizens. These were typical cases of forced eviction. In such cases international law requires, inter alia, adequate consultations with potential victims, informing them about the purposes of the eviction and the alternative use of the land to be vacated, provision of effective internal legal means of protection, including free legal assistance against the eviction decision or access to land in case the victims remain homeless.[2] None of these conditions was met during the forced evictions in Burgas and Sofia.
Attempts to amend the Electronic Communications Act (ECA) were made throughout 2009. The purpose was to allow the Ministry of Interior special directorates direct technical access to data on individuals’ electronic communications. In December, the National Assembly adopted at first reading a bill that allowed such access. The bill also expanded the possibilities for the use of such information in tracking persons and in solving and investigating crimes, and not only in case of serious crimes (punished by five or more years of imprisonment) as stipulated by the current ECA, but also for lesser crimes (punished by two or more years of imprisonment). According to the bill, the data the Ministry of Interior has been given access to are to be kept indefinitely; no notification is to be given to persons affected by this type of surveillance. This, as well as the previous attempts to give the ministry direct access to traffic data, roused strong public discontent. In the end, during the second reading of the bill in parliament, the Ministry of Interior gave up its idea about direct access and the possibility to access communications in case of lesser crimes.
During the year, the ECtHR found several violations of Article 8 of the European Convention on Human Rights (right to respect for private and family life) with regard to systematic checks under the correspondence act of the correspondence of persons detained on penal indictments and that of inmates. In its judgment on Konstantin Popov v. Bulgaria of 25 June 2009, the ECtHR held such a violation in the case of a check of a detainee’s correspondence to his lawyer. The court found this practice inadmissible, as it is not based on facts and specific suspicions, but on the hypothetical probability of abuse. The ECtHR found a similar violation in the case of a check of the correspondence to a lawyer in its decision on Koriyski v. Bulgaria of 26 November 2009. In its decision on Tsonyo Tsonev v. Bulgaria of 1 October 2009, the ECtHR held a violation of Article 8 of the Convention in the case of a check of correspondence with relatives, administration officials and lawyers of the applicant, who was detained at the Lovech prison several times in 2000-2005. In its judgment on Georgi Yordanov v. Bulgaria of 24 September 2009, the ECtHR held a violation of Article 8 of the Convention in the case of use of special reconnaissance means to tape the conversation between a suspect and his lawyer at the police station where the suspect was detained. The court held that given the arbitrariness allowed by the Bulgarian legislation with regard to the control on the use of special reconnaissance means, as established in other cases, taping the conversation in this case did not meet the criteria of lawfulness.
In 2009, the Committee of Ministers of the Council of Europe continued to monitor the implementation of a series of ECtHR decisions against Bulgaria related to violations of Article 8 of the Convention. These include the decisions that establish violations of this provision due to the deportation of foreigners, which has violated their rights to private and family life. The Committee of Ministers insists that these people are admitted back in the country – a demand the Bulgarian authorities resist. As a result, the monitoring of the implementation of these decisions, the first one of them (Al-Nashif v. Bulgaria) made as far back as 2002, still goes on. The other group of decisions that the Committee of Ministers continued to monitor in 2009 were related to the arbitrary tapping of phone calls and correspondence by special reconnaissance means. The Committee is to judge the adequacy of the amendments of the legislative framework on the protection against arbitrary surveillance by the security services.
[1] See The Trud daily, 9 March 2010.
[2] See CESCR, General Comment No. 7: The right to adequate housing (Art. 11 (1) of the Covenant): Forced evictions, HRI/GEN/1/Rev.9 (Vol. I), Sixteenth session (1997), §§ 15-16.
