January 23
2022
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Dolores Utrilla
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12th January 2022
Data, Tech & IP Human Rights Justice & Litigation

ECtHR: Bulgarian legislation on secret surveillance and on retention and access to communication data breaches privacy rights

The European Court of Human Rights (ECtHR) has given its judgment in Ekimdzhiev and Others v. Bulgaria (application no. 70078/12), ruling that Bulgarian legislation on secret surveillance and on retention of communication data is contrary to the right to respect for private life and correspondence under Article 8 of the European Convention on Human Rights (ECHR).

The case concerned secret surveillance and the system of retention and subsequent accessing of communications data in Bulgaria, namely the Special Surveillance Means Act 1997, sections 251b and following of the Electronic Communications Act 2007, and Articles 159a and 172 to 176 of the Code of Criminal Procedure. The applicants asserted that the nature of their activities put them at risk of both secret surveillance and of having their communications data accessed by the authorities under the laws authorising such activity in Bulgaria. However, they did not allege that they had in fact been placed under surveillance or had had their communications data accessed by the authorities. Two of the applicants had previously had a judgment in their favour in the case Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (application no. 62540/00).

In its Chamber judgment on the case, issued yesterday, the ECtHR unanimously concluded that the relevant Bulgarian legislation did not meet the quality-of-law requirement of the ECHR and was not fit to keep surveillance to only that which was necessary. Likewise, the Strasbourg-based court concluded that the laws governing retention and accessing communications data did not meet the quality-of-law requirement of the ECHR, and that they were not able to limit such retention and accessing to what was strictly necessary.

The judgment is available here.

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