GIRGINOVA v. BULGARIA - 4326/18 (Article 10 - Freedom of expression - {general} : Third Section) [2025] ECHR 58 (04 March 2025)

In the case of Girginova v. Bulgaria,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Ioannis Ktistakis, President,
          Peeter Roosma,
          Darian Pavli,
          Oddný Mjöll Arnardóttir,
          Diana Kovatcheva,
          Úna Ní Raifeartaigh,
          Mateja Đurović, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 4326/18) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Bulgarian national, Ms Galina Mariova Girginova ("the applicant"), on 8 January 2018;

the decision to give the Bulgarian Government ("the Government") notice of the application; and

the parties' observations;

Having deliberated in private on 4 February 2025,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. Following allegations of widespread unlawful covert surveillance conducted by his staff, in early 2015 a former Minister of Internal Affairs was acquitted of criminal charges of knowingly allowing his subordinates to engage in misconduct in public office. The criminal case was classified and heard in private, and the reasons for the acquittal were therefore not published.

2. A few months later the applicant, a journalist covering the judiciary, sought access to those reasons. Her request was refused by the court, on the basis that those reasons contained technical details about the use of covert surveillance equipment, which was classified information. Her claim for judicial review of that refusal was dismissed.

3. The main issues in the case are whether (a) the refusal breached Article 10 of the Convention, and whether (b) the applicant had an effective remedy in that respect, as required by Article 13 of the Convention.

THE FACTS

4. The applicant was born in 1986 and lives in Sofia. She was represented by Mr A. Kashamov, a lawyer practising in Sofia.

5. The Government were represented by their Agent, Ms V. Hristova of the Ministry of Justice.

I. BACKGROUND

A. The applicant's work as a journalist

6. The applicant is a journalist. She works at Sadebni Reportazhi (https://judicialreports.bg/), an online media organisation covering the judiciary.

B. Criminal case against the former Minister of Internal Affairs

7. In February 2013 the government which had been in power since July 2009 resigned, and in March 2013 it was replaced by a caretaker government.

8. In March 2013 a former Prime Minister passed on to the prosecuting authorities an anonymous complaint, allegedly sent to him by post, that when the 2009-13 Government had been in power a taskforce from the covert surveillance unit of the Ministry of Internal Affairs had unlawfully subjected many politicians, judges and businesspeople to covert surveillance.

9. In April 2013 three heads of unit from that Ministry were charged with misconduct in public office by a person subject to military law, contrary to Article 387 of the Bulgarian Criminal Code ("the Code") - which is a lex specialis in relation to the general offence of misconduct in public office under Article 282 of the Code - in connection with that complaint. Later that month the prosecuting authorities announced that they had found evidence that the Minister of Internal Affairs who had been in office in 2009-13 (who had also been Deputy Prime Minister) had knowingly allowed those heads of unit to commit the offence, contrary to Article 285 of the Code, which makes it an offence for a public official knowingly to allow a subordinate to commit an offence relating to the subordinate's duties.

10. In September 2013 the Chief Prosecutor stated at a media briefing that in the course of their inquiries into the matter the prosecuting authorities had found that 875 telephone lines had been covertly monitored without the requisite authorisation.

11. In February 2014 the prosecuting authorities announced that they had indicted the former Minister of Internal Affairs and the three heads of unit from the Ministry. The heads of unit were accused of failing to (a) protect classified information, (b) manage the use of covert surveillance equipment, and (c) ensure that "special means of surveillance" (for a definition of that term in Bulgarian law, see Ekimdzhiev and Others v. Bulgaria, no. 70078/12, § 11, 11 January 2022) would only be used lawfully - all of which was alleged to have amounted to aggravated misconduct in public office by a person subject to military law, contrary to Article 387 §§ 1 and 2 of the Code. The former Minister was accused of knowingly allowing the three subordinates to commit that offence, contrary to Article 285 of the Code.

12. In late February 2014 the Sofia City Court referred the case back to the prosecuting authorities, and in April 2015 they preferred an amended indictment. The case was then apparently stayed because the former Minister, as an elected member of Parliament, had immunity from criminal prosecution. In November 2014 the Chief Prosecutor asked the Parliament to lift his immunity, and in response the former Minister waived it. Subsequently, the Sofia City Court proceeded to try the case, which apparently went on throughout the rest of 2014 and early 2015, wholly in private. The court had also already classified the entire case file in April 2014.

13. In the meantime, in June 2014 the Parliament amended point (c) of Article 371 of the Code. Article 371 is the provision which defines who may be liable for the offences under Articles 372 to 405 of the Code (offences against military law). The earlier wording of its point (c) said that all public officials employed in the Ministry of Internal Affairs could be liable for such offences. As amended with effect from July 2014, point (c) says that those officials can be liable for such offences only if they are committed in wartime, during active service, or in the course of missions or operations carried out outside the country or in connection with military combat.

14. On 29 January 2015 the Sofia City Court acquitted all four accused. Shortly before the hearing at which the court pronounced its judgment, the prosecutors in the case told the journalists outside the courtroom that although they stood by the facts alleged in the indictment, they would ask the court to acquit because the amendment to point (c) of Article 371 of the Code had predetermined the outcome of the case. The position was that following that amendment, the acts alleged against the heads of unit could no longer be characterised as an offence under Article 387, and the former Minister could therefore no longer be found guilty of the related offence under Article 285 (see paragraphs 9 and 11 above).

15. It appears to have been expected that the reasons for the Sofia City Court's judgment would be drawn up later (as is often the case in criminal proceedings in Bulgaria). After pronouncing the operative provisions, the presiding judge told the journalists present outside the courtroom that the amendment to point (c) of Article 371 had not been the only reason for the acquittal, but added that he could give no details as the case was classified. The prosecutors then stated that they would not appeal against the acquittal (the time-limit for doing so was fifteen days from its pronouncement), which therefore apparently became final shortly after that.

16. The reasons for the judgment were not published.

17. At a media briefing held on 30 January 2015, the day after the acquittal, the Chief Prosecutor said that he supported the prosecutors' decision not to maintain the charges following the legislative amendment, since the prosecuting authorities followed the law "irrespective of whether it concern[ed] a former Minister ... or any other person".

C. Closing of the Ministry of Internal Affairs' covert surveillance unit

18. As a result of, among other developments, the above-mentioned allegations against the former Minister of Internal Affairs, with effect from August 2013 the Parliament closed the covert surveillance unit of the Ministry of Internal Affairs and transferred its powers to deploy "special means of surveillance" to a newly created Technical Operations Agency under the direct control of the Government. The explanatory notes to the June 2013 Bill which led to those amendments (no. 354-01-19) stated that the change was needed to cut short the numerous abuses of the covert surveillance system under the previous Government, including its use to further "political and business interests", culminating in "the mechanism for unlawful eavesdropping created and operating in the Ministry of Internal Affairs under the supervision of the Deputy Prime Minister and Minister of Internal Affairs".

II. THE APPLICANT'S INFORMATION REQUEST

A. The request and its refusal by the Sofia City Court

19. On 20 October 2015, about nine months after the former Minister's acquittal (see paragraphs 14-16 above), the applicant asked the Sofia City Court for the reasons for its judgment. In her request, she specified that she was a journalist with Sadebni Reportazhi (see paragraph 6 above).

20. In an internal memorandum drawn up in in response to that request and addressed to the president of the Sofia City Court, the judge who had presided over the panel which had tried the criminal case stated that, by way of exception to the general rule of publicity of judicial decisions (see paragraph 49 below), the reasons for that judgment could not be published, since they contained classified information. That was also grounds to refuse access to them under section 37(1)(1) of the Access to Public Information Act 2000 ("the 2000 Act" - see paragraph 42 below). The case had concerned not just evidence obtained through "special means of surveillance" but the general manner in which such means were being used, including technical details. That was classified information within the meaning of Schedule 1 to section 25 of the Protection of Classified Information Act 2002 ("the 2002 Act" - see paragraph 47 below).

21. On 3 November 2015 the administrator of the Sofia City Court refused the applicant's request under section 37(1)(1) of the 2000 Act (see paragraph 42 below). He stated that since the request concerned information relating to the court's judicial functions, he had consulted the presiding judge in the case, and quoted his above-mentioned memorandum. On that basis, he concluded that the information sought by the applicant was classified within the meaning of section 7 of the 2000 Act (see paragraph 42 below); the level of classification of the entire case file was "secret" (see paragraph 46 below). That meant that (a) the rule that all judicial decisions were to be published on the court website (see paragraph 49 below) did not apply, and that (b) the information was exempt from disclosure under the 2000 Act.

B. Proceedings for judicial review of the refusal

1. At first instance

(a) Course of the proceedings

22. The applicant sought judicial review of the refusal. She described in some detail the background to her information request (see paragraphs 8-16 above), and referred to an article which she had written about it in the meantime (see paragraph 32 below). She went on to cite a 2014 interpretative decision of the Supreme Court of Cassation according to which it was impermissible to conceal the whole judgment in a criminal case even if it concerned "special means of surveillance" (see paragraph 52 below). The applicant also argued that the refusal had infringed her constitutional right of access to information. Under Article 41 of the Constitution and section 37 of the 2000 Act (see paragraphs 33-34 and 42 below), access to information could be refused if it was a State secret, but that limitation was to be construed restrictively and in the light of this Court's case-law. In particular, it was unclear why it had been necessary to conceal the entirety of the reasons for the acquittal rather than just elements of them. The case had been of considerable public interest, and information about it would ensure transparency in the administration of the criminal law. Moreover, the former Minister of Internal Affairs was a public figure, and the case against him had concerned a sensitive topic - the alleged misuse of "special means of surveillance" by the authorities.

23. In the course of the proceedings the applicant asked the Sofia City Administrative Court to direct the respondent to produce the reasons for the former Minister's acquittal for inspection by the court, which it had power to do under section 41(3) of the 2000 Act (see paragraph 45 below). The court refused the application, saying that all the requisite evidence was already in the case file.

(b) Judgment of the Sofia City Administrative Court

24. On 9 February 2016 the Sofia City Administrative Court dismissed the applicant's claim (see реш. № 718 от 09.02.2016 г. по адм. д. № 12030/2015 г., АС-София-град).

25. It held that since there were special regulations governing how non-parties to a court case could have access to the material in the case file (see paragraph 48 below), the 2000 Act, by its section 4(1) (see paragraph 38 below), did not apply to the applicant's request. The Sofia City Court had therefore been under no duty to respond to it. There were rules outside the 2000 Act which ensured publicity and transparency in the work of the judiciary, in particular section 64 of the Judiciary Act 2007, which required the online publication of judicial decisions (see paragraph 49 below), and thus made it possible for anyone to check how the courts resolved certain issues.

26. Moreover, not all information relating to the judiciary was "public information" within the meaning of the 2000 Act (see paragraph 36 below). For instance, the construction of a legal provision in a given case did not fall within the Act. Access to information of that kind - contained in the reasons for a judgment and touching directly on the way in which the relevant court had administered justice in a given case - was governed by the Judiciary Act 2007 (see paragraph 49 below) and the procedural codes. The applicant's request was therefore to be refused because the 2000 Act did not apply to it rather than because the information sought by her was exempt under its section 37 (see paragraph 42 below). It had, all the same, been proper for the Sofia City Court to refuse the request expressly, since the relevant authority was under a duty to give a decision even pursuant to a request concerning information falling outside the scope of the 2000 Act.

27. At the same time, it could not be overlooked that the applicant's request for information had been made because the Sofia City Court had not complied with its duty under section 64(1) of the Judiciary Act 2007 and Article 263 § 4 of the Code of Criminal Procedure (see paragraphs 49 and 51 below) to publish the reasons for its judgment. The material in the case file showed that this was because those reasons contained classified information, including a general discussion of the use of "special means of surveillance" (rather than just evidence obtained via such means). The Sofia City Court therefore had to check whether (a) that information did in fact fall within the scope of Schedule 1 to section 25 of the 2002 Act (see paragraph 47 below), and whether (b) all those reasons concerned a State secret and could properly be withheld under the criteria set out in the Supreme Court of Cassation's 2014 interpretative decision (see paragraph 52 below). There was no indication that the Sofia City Court had carried out such an exercise. The matter - which was to be treated as a report under Article 119 of the Code of Administrative Procedure (see paragraphs 53-54 below) - was therefore to be referred to that court's president for decision.

2. On appeal to the Supreme Administrative Court

(a) Course of the proceedings

28. The applicant appealed on points of law against the dismissal of her claim for judicial review. She submitted that the Sofia City Administrative Court had been wrong to hold that the 2000 Act did not apply to her request because of a lex specialis; that the information which she had sought was not public information within the meaning of the Act; and that judgments were to be seen simply as case-file material. The fact that the reasons for the former Minister's acquittal had not been published did not mean that access to them could not be sought under the 2000 Act. The applicant also contended that the refusal to provide her with those reasons had been in breach of Article 10 of the Convention, as construed by this Court, and that the upholding of that refusal had been contrary to Article 13 of the Convention.

29. The Supreme Administrative Court heard the appeal on 10 May 2017. In his pleadings at the hearing, counsel for the applicant argued, among other things, that the Sofia City Administrative Court had been wrong not to direct the respondent to produce the reasons for the former Minister's acquittal under section 41(3) of the 2000 Act (see paragraph 23 above and paragraph 45 below). At the close of the hearing the Supreme Administrative Court stated that it would give its judgment after taking time for consideration; it did not refer to the one-month time-limit (laid down in Article 172 § 1 of the Code of Administrative Procedure - see paragraph 55 below) in which an administrative court is normally expected to decide a case which it has heard.

(b) Judgment of the Supreme Administrative Court

30. In a judgment dated 6 July 2017 (реш. № 8849 от 06.07.2017 г. по адм. д. № 3415/2016 г., ВАС, V о.), the Supreme Administrative Court upheld the lower court's judgment. It held that the courts were under a duty to provide access to public information, but that information of the kind requested by the applicant was to be provided in the manner prescribed in the Judiciary Act 2007, which was a lex specialis in that situation and contained a number of rules meant to ensure publicity. Moreover, publicity was not an absolute rule, and could be restricted under the 2000 Act to protect opposing interests, such as the protection of personal data and classified information and national security. One way of doing so was to publish judgments without the reasons for them. The rules governing the issue in Bulgaria were proportionate because they curtailed publicity in relation to the work of the judiciary only when that was justified by the need to protect rights and interests of equal importance. That was fully in line with Article 41 of the Constitution (see paragraphs 33-34 below), and had been given effect with the provisions of the 2000 Act relating to exempt information (see paragraphs 41-42 below). The right of access to public information under the 2000 Act was not absolute, but could be restricted to safeguard the interests that were the object of Article 41 § 2 of the Constitution - which had also been set out in sections 5 and 7 of the Act (see paragraphs 34 and 41-42 below). It was for the legislature alone to say whether certain information was of public interest, and any limitation on access to public information likewise required a legislative determination about the existence of an opposing interest.

31. The Government said that the Supreme Administrative Court judgment was made available for consultation at that court on 6 July 2017 and was published on the court's website on 7 July 2017. In support of their assertions on those two points, the Government produced (a) excerpts from the court's cause list and calendar for the relevant period, and (b) a screenshot from its electronic case-management system.

III. THE APPLICANT'S ARTICLE ABOUT THE CASE AGAINST THE FORMER MINISTER OF INTERNAL AFFAIRS

32. On 29 October 2015 the online media organisation for which the applicant worked (see paragraph 6 above) published an article she had written entitled "Why does Ts.Ts. need a lawyer when he has his own prosecutor's office?" The article set out the allegations against the former Minister of Internal Affairs and the case against him (see paragraphs 8-16 above), and suggested that the manner in which the prosecuting authorities had handled the case had not been accidental. In particular, the charges against the former Minister had notably failed to mention the 875 telephone lines put under covert monitoring which had been mentioned by the Chief Prosecutor (see paragraph 10 above), even though it was reasonable to suspect that the information obtained as a result of that surveillance had been used to blackmail the people concerned, which had in turn affected the country's politics and economy and various judicial appointments and court cases. The fact that the case had been heard in private had prevented the public from learning anything about those issues. It was also striking that after the amendment to point (c) of Article 371 of the Criminal Code, the prosecuting authorities had apparently given no serious consideration to the possibility of charging the heads of units of the Ministry, who had engaged in grave misconduct, with offences under Article 282 of the same Code, even though the differences between Articles 387 and 282 were minimal (see paragraphs 9, 11 and 13-14 above). Nor was there any good explanation why the prosecuting authorities had chosen not to maintain the charges at the last possible moment rather than at any point in the several hearings which had taken place in the autumn of 2014, shortly after the amendment to point (c) of Article 371 was passed. By contrast, in five other cases they had acted differently: following the amendment, they had charged or indicted officials of the Ministry of Internal Affairs who had previously been charged under Article 387 with other offences in respect of the same acts, and had asked for the charges to be amended in proceedings in the Supreme Court of Cassation in another case. The article concluded as follows:

"But let us however go back to the charges against the former interior Minister - is it wholly irrelevant that there was an [IMSI-]catcher [1] with surveillance devices which was roaming uncontrolled around Sofia, while Ts. did not put in place any rules as to supervision? And will we never learn who the 875 persons mentioned by the Chief Prosecutor were who can sue the State for unlawful interference in their private life were?

But the most pressing question is: who will hold the Prosecutor's Office accountable when it tells lies? Is the unlawful wiretapping of citizens in peacetime indeed not an offence? And why exactly were the charges relating to widespread wiretapping made to fail?"

RELEVANT LEGAL FRAMEWORK

I. CONSTITUTIONAL PROVISIONS

33. Article 41 § 1 of the 1991 Constitution provides that everyone has the right to seek, receive and impart information, but that the exercise of those rights may not be directed against the rights or good name of others, national security, public order, health or morals.

34. Article 41 § 2 of the Constitution provides that citizens are entitled to information from the State authorities or bodies on any matter of legitimate interest to them, unless the information is a State secret or a secret protected by law, or affects the rights of others.

35. By Article 121 § 3 of the Constitution the examination of cases in all courts must be public unless otherwise provided for by law, and by Article 121 § 4 reasons must be given for judicial decisions. Commenting on those two provisions, the Constitutional Court has stated that by ensuring publicity, the publication of judicial decisions required by section 64 of the Judiciary Act 2007 (see paragraph 49 below) was meant to reassure the public that the courts would remain guarantors of the rule of law (see реш. № 7 от 30.06.2020 г. по к. д. № 11/2019 г., КС, обн., ДВ, бр. 62 от 14.07.2020 г.).

II. ACCESS TO PUBLIC INFORMATION ACT 2000

A. Scope of application

36. Section 2(1) of the Access to Public Information Act 2000 ("the 2000 Act") defines "public information" as "any information relating to public life in Bulgaria and enabling citizens to form an opinion about the work of the bodies bound to provide such information".

37. The 2000 Act applies to, among other sorts of information, public information created or held by State or local authorities (section 3(1)).

38. The right of access to public information is to be exercised in the manner prescribed in the 2000 Act unless a lex specialis provides for another way of seeking, receiving and disseminating such information (section 4(1)).

39. The Supreme Administrative Court has consistently held that section 4(1) means that access to prosecutors' decisions and the material in criminal case files is governed by special provisions in the Code of Criminal Procedure and court rules, and that the 2000 Act therefore does not apply to the information contained in them (see реш. № 4649 от 21.05.2004 г. по адм. дело № 11128/2003 г., ВАС, V о.; реш. № 13485 от 29.10.2012 г. по адм. д. № 15591/2011 г., ВАС, V о.; реш. № 3888 от 20.03.2013 г. по адм. д. № 11016/2012 г., ВАС, V о.; реш. № 4814 от 05.04.2013 г. по адм. д. № 8373/2012 г., ВАС, V о.; реш. № 5505 от 19.04.2013 г. по адм. д. № 9207/2012 г., ВАС, V о.; реш. № 7966 от 10.06.2013 г. по адм. д. № 15372/2012 г., ВАС, V о.; реш. № 15814 от 28.11.2013 г. по адм. д. № 5674/2013 г., ВАС, VII о.; реш. № 17404 от 21.12.2013 г. по адм. д. № 7138/2013 г., ВАС, петчл. с-в; реш. № 5419 от 17.04.2014 г. по адм. д. № 14213/2013 г., ВАС, VII о.; реш. № 179 от 08.01.2015 г. по адм. д. № 5731/2014 г., ВАС, VII о.; реш. № 352 от 13.01.2015 г. по адм. д. № 7252/2014 г., ВАС, VII о.; реш. № 3995 от 08.04.2015 г. по адм. д. № 9052/2014 г., ВАС, V о.; реш. № 11752 от 03.11.2016 г. по адм. д. № 8641/2015 г., ВАС, V о.; реш. № 2690 от 06.03.2017 г. по адм. д. № 14601/2015 г., ВАС, V о.; реш. № 7603 от 15.06.2017 г. по адм. д. № 14198/2016 г., ВАС, V о.; реш. № 14158 от 20.11.2018 г. по адм. д. № 8001/2017 г., ВАС, V о.; реш. № 420 от 10.01.2019 г. по адм. д. № 6228/2017 г., ВАС, V о.; реш. № 3930 от 18.03.2019 г. по адм. д. № 379/2018 г., ВАС, V о.; реш. № 11711 от 05.08.2019 г. по адм. д. № 12928/2017 г., ВАС, V о.; реш. № 11726 от 05.08.2019 г. по адм. д. № 5997/2017 г., ВАС, V о.; and опр. № 565 от 18.01.2024 г. по адм. д. № 454/2024 г., ВАС, V о.).

40. That court recently held the same with respect to non-party access to a final court decision in a criminal case: that the matter was not governed by the 2000 Act but by the Code of Criminal Procedure and a specific rule issued by the Supreme Judicial Council - set out in paragraph 48 below (see опр. № 1215 от 02.02.2024 г. по адм. д. № 596/2024 г., ВАС, V о.).

B. Grounds for the refusal of access to public information

41. The right of access to public information cannot be exercised so as to put national security at risk (section 5 of the 2000 Act).

42. That right cannot be restricted unless the information in issue is classified or is otherwise a secret protected by law (section 7(1) of the 2000 Act). If information falls into one of those categories, that is grounds to refuse access to it (section 37(1)(1)). In cases of that kind, those concerned are to be given access only to such parts of the information as are not affected by the restriction (section 37(2)).

43. A decision to refuse access to public information must include the reasons of fact and law for the refusal (section 38 of the 2000 Act).

C. Judicial review of a refusal to provide access to public information

44. Refusals to provide access to public information may be judicially reviewed (section 40 of the 2000 Act). If the court finds that a refusal was unlawful, it must set it aside wholly or in part, or vary the decision challenged, and order the respondent authority to provide access to the information which was being sought (section 41(1)).

45. When judicially reviewing a decision which refuses access to information because it was classified or otherwise secret, the court may direct the respondent to produce the material underlying its decision for inspection by it (section 41(3) of the 2000 Act).

III. PROTECTION OF CLASSIFIED INFORMATION ACT 2002

46. Section 1(1) of the Protection of Classified Information Act 2002 ("the 2002 Act") specifies that classified information comprises (a) State secrets, (b) official secrets, and (c) classified information obtained from another State. By section 3(1), only persons with an appropriate security clearance have access to classified information, on a "need-to-know" basis, unless the Act provides otherwise. Section 28 regulates the different levels of classification; information constituting a State secret falls under the headings "top secret", "secret" or "confidential" (section 28(2)). Information is marked as "secret" if unregulated access to it might pose a significant threat to the country's sovereignty, independence or territorial integrity, or to its foreign policy or international relations with implications for national security, or if it might give rise to a risk of significant and potentially irreversible damage, or cause such damage, in the spheres of national security, defence, foreign policy or defence of the constitutional order (section 28(2)(2)). "Top secret" information remains classified for thirty years after it has been created, "secret" information for fifteen years, and "confidential" information for five years (section 34(1)); those periods can be prolonged to up to twice their original length (section 34(2)). After they expire, access to the information can be obtained in the manner prescribed in the 2000 Act (section 34(3)).

47. Section 25 of the 2002 Act defines a State secret as "information included in Schedule 1 [to the Act], the unregulated access to which could endanger or harm the interests of the Republic of Bulgaria and which relates to national security, defence, foreign policy, or the protection of constitutional order". Schedule 1 sets out the categories of information liable to be classified as being a State secret. By point 6 of part II of that Schedule, this includes "[i]nformation about special means of surveillance (technical devices and/or the manner in which they have been used) used in the manner provided for by law". Until 2013 information obtained as a result of the use of such means (point 8 of part II of Schedule 1, in force until 2013) was also included.

IV. NON-PARTY ACCESS TO COURT CASE-FILE MATERIAL

48. At the relevant time non-party access to court case-file material was governed by rules issued by the Supreme Judicial Council under section 342 of the Judiciary Act 2007. Rule 73 § 4 of the 2014 Rules on the Administration of the Courts was in force between January 2014 and June 2017 (it was then superseded by an identical provision, Rule 77 § 4 of the 2017 Rules on the Administration of the Courts), and said that non-parties could have access to information in specific court cases in the manner prescribed in the codes of procedure, but only if they had a legitimate interest in doing so: they would have to set out the nature of that interest in a written court application.

V. PUBLICATION OF JUDICIAL DECISIONS

A. General rules

49. Since 2009, section 64(1) of the Judiciary Act 2007 has required courts to publish their judicial decisions on their websites immediately after they are delivered, subject to the requirements of the 2002 Act (see paragraphs 46-47 above) and of the legislation on the protection of personal data. An amendment to section 64 which came into effect in November 2017 provided for an exception to the requirement for immediate publication. Under subsection 1, as reworded, and a new subsection 2, judicial decisions in criminal cases which convict and sentence someone or which finally uphold a conviction or sentence are to be published on the court website only after the prosecuting authorities have informed that court that steps have been taken to enforce them.

50. Since 2017, all judicial decisions which conclude court proceedings or are capable of being appealed against must also be published immediately in a centralised electronic register (sections 360n and 360o(2) of the Judiciary Act 2007, added with effect from August 2016 and February 2017 respectively). Anyone can access the decisions published in that register (section 360r(2), in force since February 2017). However, section 360o(3), likewise in force since February 2017, provides that neither the reasons for, nor the operative provisions of, decisions revealing a secret protected by law are to be published in the register.

B. Provisions and case-law relating to judgments in criminal cases

51. A criminal trial may be held wholly or in part in private if that is necessary to safeguard a State secret, morality, the identity of a witness, or someone's private life (Article 263 §§ 1 and 2 read in conjunction with Article 123 § 1 (2) of the Code of Criminal Procedure). Irrespective of any such circumstances, judgment is to be pronounced publicly (Article 263 § 4). If the reasons for the judgment are to be drawn up later, the presiding judge must pronounce just the operative provisions (Article 310 § 2).

52. In an interpretative decision of December 2014 (тълк. реш. № 4 от 03.12.2014 г. по тълк. д. № 4/2014 г., ВКС, ОСНК), the General Meeting of the Supreme Court of Cassation's Criminal Divisions held that even if a criminal case involves material obtained by way of covert surveillance, that is not a sufficient ground to hear it in private, and that the court hearing the case must duly justify its decision to exclude the public, and may exclude it only from procedural steps genuinely involving State secrets. The court went on to specify that judgments in criminal cases involving evidence obtained by way of covert surveillance must as a rule be published in full; only if the proceedings or part of them have been conducted in private can the court refrain from publishing those parts of its reasoning in which it has commented on State secrets. The court based its conclusion on the last point on (a) the wording of Article 263 § 4 of the Code of Criminal Procedure and section 64(1) of the Judiciary Act 2007 (see paragraphs 49 and 51 above), and (b) this Court's judgments in Raza v. Bulgaria (no. 31465/08, § 53, 11 February 2010), Amie and Others v. Bulgaria (no. 58149/08, § 99, 12 February 2013) and Nikolova and Vandova v. Bulgaria (no. 20688/04, §§ 82-85, 17 December 2013). It also underlined that public access to judicial decisions could only be curtailed if that was necessary and proportionate.

VI. REPORTS TO A SUPERIOR AUTHORITY ABOUT UNLAWFUL ACTIONS OF OMISSIONS BY A SUBORDINATE AUTHORITY

53. Anyone can report unlawful actions or omissions by a public authority or official to the immediately superior authority (Article 119 § 1 of the Code of Administrative Procedure). Such reports may concern instances of misuse of power, corruption, mismanagement of State or municipal property, or any other unlawful or misguided actions or omissions by public authorities or officials which affect State or public interests or the rights or legitimate interests of others (Article 107 § 4). The Supreme Administrative Court has explained that the difference between such a report and a complaint or a claim is that a report is not meant to protect the rights or interests of the person who makes it but simply to bring a matter to the attention of the appropriate authority - and is therefore a device intended to safeguard the public interest rather than a private one (see опр. № 6915 от 22.05.2014 г. по адм. д. № 4952/2014 г., ВАС, VII о., and опр. № 9982 от 04.10.2021 г. по адм. д. № 9508/2021 г., ВАС, VII о.).

54. The superior authority must normally take a decision on the report within two months of receiving it (Article 121). If it finds the report well-founded, the authority must take steps to rectify the reported issue (Article 122 § 1). Otherwise, it must send the report to its own immediately superior authority, and inform the person who has made it of that (Article 122 § 2). The decision on the report must be in writing, giving reasons, and must be sent to the person who made the report (Article 123 § 1). It is not amenable to appeal or judicial review (Article 124 § 2). It must, as a rule, be put into effect within one month after it has been given, but that period may exceptionally be extended for up to a further two months for particularly serious reasons (Article 125 § 1).

VII. INDICATIVE TIMESCALE FOR DECIDING CASES BEFORE THE ADMINISTRATIVE COURTS

55. By Article 172 § 1 of the Code of Administrative Procedure, an administrative court hearing a claim for judicial review of an administrative decision ought to give its decision within one month after the hearing at which it has concluded the examination of the case.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

56. The applicant complained that the Sofia City Court had refused to give her the reasons for the acquittal of the former Minister of Internal Affairs. She relied on Article 10 of the Convention, which reads, so far as relevant:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

A. Admissibility

1. Compatibility ratione materiae

57. The first question which arises is whether Article 10 of the Convention is engaged, and whether the complaint is therefore compatible ratione materiae with the Convention. There are no reasons to join this issue to the merits of the case and the Court will therefore examine it first (see, as a recent authority, Zöldi v. Hungary, no. 49049/18, § 31, 4 April 2024).

(a) General principles

58. Article 10 of the Convention does not in express terms confer a right of access to information held by the authorities or oblige them to impart such information. However, according to the Court's case-law as established by the Grand Chamber judgment in Magyar Helsinki Bizottság v. Hungary ([GC], no. 18030/11, 8 November 2016), such a right or obligation may arise if disclosure of the information has been ordered by a court - a scenario not in issue here - or if access to the information is instrumental for the exercise of the right to freedom of expression of the person seeking it (ibid., § 156).

59. The criteria for determining whether access to information is instrumental for the exercise of the right to freedom of expression are (a) the purpose of the information request; (b) the nature of the information sought; (c) the role of the seeker of the information in receiving it and imparting it to the public; and (d) whether the information is ready and available (ibid., §§ 157-70). Those criteria are in principle cumulative (see Saure v. Germany (dec.), no. 6106/16, § 34 in fine, 19 October 2021; Mitov and Others v. Bulgaria (dec.), no. 80857/17, § 30 in fine, 28 February 2023; Saure v. Germany (no. 2), no. 6091/16, § 36 in fine, 28 March 2023; and Sieć Obywatelska Watchdog Polska v. Poland, no. 10103/20, § 49 in fine, 21 March 2024).

(b) The parties' submissions on how those criteria are to be applied

60. The Government submitted that the applicant had not explained in her information request why she needed access to the reasons for the former Minister's acquittal. It was not readily apparent why that information had been necessary to stimulate a public debate on the misuse of "special means of surveillance". The information she had sought had been properly classified since its disclosure could harm national security, and it did not concern the overall operation of the surveillance system. It was therefore not information on a matter of public interest. The applicant's being a journalist reporting on matters related to the judiciary was not sufficient to outweigh those considerations.

61. The applicant replied that she was a journalist in a media organisation specialising in covering the judiciary, including high-profile cases. It was beyond question that a criminal case against a former Minister of Internal Affairs was of public interest. The subject matter of that case - which had concerned the misuse of "special means of surveillance" - had been of public interest as well, especially since this was an area in which the Court had twice found systemic problems in Bulgaria. Many of the country's media organisations, including the one where the applicant worked, had reported on the case. There was also public interest in all cases in which the judgments had been classified.

(i) First criterion (purpose of the information request)

62. As evident from her submissions to the Sofia City Administrative Court (see paragraph 22 above), the purpose of the applicant's request to the Sofia City Court was to obtain information relating to her professional duties as a journalist (compare Centre for Democracy and the Rule of Law v. Ukraine, no. 10090/16, § 97 in fine, 26 March 2020, and Mikiashvili and Others v. Georgia (dec.), nos. 18865/11 and 51865/11, § 51, 19 January 2021). That, and the content of an article which she wrote about the allegations and the case against the former Minister of Internal Affairs a few days later (see paragraph 32 above), show that the request was a preparatory step in her work as a reporter covering the justice system, and that it was made for a proper journalistic purpose (contrast Sioutis v. Greece (dec.), no. 16393/14, § 27, 29 August 2017, and Studio Monitori and Others v. Georgia, nos. 44920/09 and 8942/10, § 42 in fine, 30 January 2020). There is little doubt that the relevant authorities were sufficiently aware of that, especially since the applicant specified that she was a journalist in the information request which she addressed to the Sofia City Court (see paragraph 19 above).

63. It should be noted more generally in this connection that it would not be practical to expect the judicial process to be scrutinised directly by the general public. It is part of the "duties and responsibilities" of journalists like the applicant to scrutinise it for them. Indeed, the media are one of the main channels through which the general public can verify whether judges are discharging their duties properly and impartially (see Prager and Oberschlick v. Austria, 26 April 1995, § 34, Series A no. 313), thereby fostering respect for the rule of law.

(ii) Second criterion (nature of the information sought)

64. The reasons for the acquittal of a former Minister of Internal Affairs charged with failing to supervise the misuse of covert surveillance equipment by his subordinates were of considerable public interest - especially since there were recurrent scandals relating to the misuse of "special means of surveillance" in Bulgaria at the time (see Ekimdzhiev and Others v. Bulgaria, no. 70078/12, § 357, 11 January 2022). The reasons why the Bulgarian Parliament decided in mid-2013 to close the covert surveillance unit of the Ministry of Internal Affairs and transfer its powers to deploy "special means of surveillance" to a newly created agency (see paragraph 18 above) are also strong evidence for the importance attached to the issue in Bulgaria.

65. The way in which the prosecuting authorities and the courts have dealt with criminal charges against a former government minister in relation to the manner in which he has carried out his duties is also clearly of considerable public interest. Since the position taken by the prosecuting authorities with respect to those charges - not to maintain them and not to appeal against the former Minister's acquittal - had been made public (see paragraphs 14, 15 and 17 above), it was all the more important for the public to know also how the court had dealt with those charges (compare, mutatis mutandis, Centre for Democracy and the Rule of Law v. Ukraine (dec.), no. 75865/11, § 52 in fine, 3 March 2020).

66. It is also of wider significance that the document to which the applicant wished to obtain access was a statement of the reasons given for the conclusion in a criminal case. Not all court cases necessarily concern matters of public interest (see Mitov and Others, cited above, § 32). It is nonetheless axiomatic that the reasons given for any judgment contribute towards the transparency and accountability of the justice system (see Tatishvili v. Russia, no. 1509/02, § 58 in fine, ECHR 2007-I). They lay bare the manner in which the relevant court has approached and resolved the issues arising in the case before it, and thus constitute a key safeguard against the maladministration of justice - the prevention of which is of interest for society as a whole. The Court has had occasion to underline, in different but related contexts, that the publicity of judgments is one of the means of maintaining public confidence in the courts and contributes to ensuring a fair trial, which is one of the hallmarks of a democratic society (see Fazliyski v. Bulgaria, no. 40908/05, § 64, 16 April 2013, with further references). It has also stated, more generally, that questions concerning the functioning of the justice system fall within the public interest (see, among other authorities, Morice v. France [GC], no. 29369/10, § 128, ECHR 2015; Tavares de Almeida Fernandes and Almeida Fernandes v. Portugal, no. 31566/13, § 62, 17 January 2017; and Stancu and Others v. Romania, no. 22953/16, § 113, 18 October 2022).

(iii) Third criterion (role of the seeker of the information)

67. The applicant was a journalist who sought access to the information in issue - the reasons for a judgment in a high-profile criminal case - with a view to carrying out her professional duties (compare with Mikiashvili and Others, cited above, § 49; Yuriy Chumak v. Ukraine, no. 23897/10, § 29, 18 March 2021; Saure (no. 2), cited above, § 37; and Zöldi, cited above, § 37). The Court has had occasion to emphasise, albeit from a different perspective, the importance of the media in the area of criminal justice and the importance of the availability of information about criminal proceedings (see Dupuis and Others v. France, no. 1914/02, § 42, 7 June 2007; July and SARL Libération v. France, no. 20893/03, § 66, ECHR 2008; and Morice, cited above, § 152).

(iv) Fourth criterion (whether the information was ready and available)

68. The information, which was contained in a single document, was ready and available (contrast Bubon v. Russia, no. 63898/09, §§ 42-44, 7 February 2017, and Saure (dec.), cited above, § 37). The potential need to redact a document before giving access to it cannot be seen as a significant hurdle (see, mutatis mutandis, Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung v. Austria, no. 39534/07, § 45, 28 November 2013).

(v) Conclusion

69. In the light of the above considerations, the refusal to provide the applicant with the reasons given by the Sofia City Court for acquitting the former Minister of Internal Affairs must be regarded as engaging Article 10 of the Convention. It follows that the complaint is compatible ratione materiae with the provisions of the Convention.

2. Compliance with the time-limit under Article 35 § 1 of the Convention

(a) The parties' submissions

(i) The Government

70. The Government submitted that the applicant had not complied with the six-month time-limit under Article 35 § 1 of the Convention (as worded at the relevant time), since she had applied to the Court on 8 January 2018 whereas that time-limit had expired two days earlier, on 6 January 2018 - six months after the Supreme Administrative Court's judgment in her case. The applicant and her lawyer had learned about that judgment on the day it had been delivered - 6 July 2017.

71. The Government produced documents which they claimed showed that the Supreme Administrative Court's judgment had become available at that court's registry on 6 July 2017 and had been uploaded to the court's website on 7 July 2017 (see paragraph 31 above).

(ii) The applicant

72. The applicant replied that although it was dated 6 July 2017, the Supreme Administrative Court judgment had been published on the court website on 10 July 2017. Her lawyer had downloaded it the same day, thus showing the requisite diligence. In Bulgaria, final court decisions were not served on or sent to the parties, and there was no compulsory time-limit within which a court had to give a reserved judgment. That made it difficult for litigants and their lawyers to know on what date final judgments might be delivered.

73. The applicant went on to say that in practice it had been impossible to read judgments at the registry of the Supreme Administrative Court, and that for more than twenty years the normal practice for all lawyers and litigants with cases in that court had been to read its judgments and decisions on its website. She also contested, with reference to that court's internal rules and practice at the relevant time, the plausibility of the Government's assertion that the judgment had been uploaded in full text on the court's website on 7 July 2017.

(b) The Court's assessment

74. There is no need to ascertain whether - as contended by the Government, based on the evidence that they produced (see paragraph 31 above) - the Supreme Administrative Court's judgment in the applicant's case became available at that court's registry on 6 July 2017 and was published in its entirety on that court's website on 7 July 2017. Even if that was so, the complaint cannot be rejected for failure to comply with the time-limit under Article 35 § 1 of the Convention.

75. Under the Court's case-law, that time-limit - at the relevant time, six months - starts to run when the applicant has effective and sufficient knowledge of the final domestic decision (see Baghli v. France, no. 34374/97, § 31, ECHR 1999-VIII; Izet Haxhia v. Albania, no. 34783/06, § 46, 5 November 2013; A.N. v. Lithuania, no. 17280/08, § 77, 31 May 2016; and Šarkienė v. Lithuania (dec.), no. 51760/10, 27 June 2017). If domestic law does not provide for service of that decision, this is the date on which the applicant is definitely able to acquaint him- or herself with its content (see, among other authorities, Papachelas v. Greece [GC], no. 31423/96, § 30 in fine, ECHR 1999-II; Köksal v. the Netherlands (dec.), no. 31725/96, 19 September 2000; and Piętka v. Poland, no. 34216/07, § 44, 16 October 2012).

76. Normally, and in the absence of other indications, in Bulgaria - where final court decisions are not served on or sent to the parties by the court - this is the date of the decision itself. But when it is plausibly asserted, as here, that an applicant could not or did not have knowledge of the content of the decision on the date featuring on the decision itself, other considerations arise. According to a long-running line of authority, applicants and their representatives cannot be required to enquire day after day whether a judgment which has not been served on them has been delivered (see Papageorgiou v. Greece, 22 October 1997, § 32, Reports of Judgments and Decisions 1997-VI; Sürek v. Turkey (dec.), no. 34686/97, 22 June 2000; Xenodochiaki S.A. v. Greece (dec.), no. 49213/99, 15 November 2001; Kans and Others v. Latvia (dec.), no. 57823/00, 9 October 2003; Loumidis v. Greece (dec.), no. 19731/02, 23 September 2004; Kokkini v. Greece, no. 33194/02, § 20, 17 February 2005; Cheilas v. Greece (dec.), no. 9693/03, 12 May 2005; Kaggali v. Greece, no. 9733/03, § 15, 19 May 2005; Zarmakoupi v. Greece (dec.), no. 11729/03, 19 May 2005; N.T. Giannousis and Kliafas Brothers S.A. v. Greece (dec.), no. 2898/03, 29 September 2005; Bolat v. Turkey (dec.), no. 36769/02, 10 January 2006; Muresan v. Romania (dec.), no. 31530/05, § 17, 22 June 2010; Vassilios Athanasiou and Others v. Greece, no. 50973/08, § 21, 21 December 2010; Paratheristikos Oikodomikos Synetairismos Stegaseos Ypallilon Trapezis Tis Ellados v. Greece, no. 2998/08, § 25, 3 May 2011; and Rifat Demir v. Turkey, no. 24267/07, §§ 48-49, 4 June 2013).

77. There is no reason to depart from that approach in the present case. It is true that checking whether a judgment has been published on a court's website is easier and quicker than going to that court's premises to check there whether a judgment has been delivered. All the same, it remains the case that it would be too burdensome to require applicants and their representatives to do so on a daily basis and to penalise them if they failed to display that level of diligence. It should also be noted in that connection that when hearing the case on appeal on 10 May 2017 the Supreme Administrative Court did not indicate, even approximately, when it would give its judgment (see paragraph 29 in fine above). The applicant and her lawyer thus had no way of knowing when that court would do so (contrast Kans and Others, cited above), so as to be able to time their enquiries better. That situation also illustrates, however, that the system in Bulgaria - under which final court decisions are normally neither served on, nor notified to, the parties - can lead to uncertainty about the exact date on which the time-limit under Article 35 § 1 of the Convention starts to run in circumstances of this sort.

78. Thus, even if the Government's contention that the Supreme Administrative Court's judgment became available at that court's registry on 6 July 2017 and was published in its entirety on the court's website the following day, 7 July 2017, is accepted, the applicant and her lawyer cannot be faulted for having acquainted themselves with it three or four days later, on 10 July 2017 (compare with Xenodochiaki S.A.; Kokkini, § 20; Kaggali, § 15; Zarmakoupi; N.T. Giannousis and Kliafas Brothers S.A.; Vassilios Athanasiou and Others, § 21; and Paratheristikos Oikodomikos Synetairismos Stegaseos Ypallilon Trapezis Tis Ellados, § 25, all cited above, in all of which longer delays were considered acceptable).

79. The Government's objection that the complaint is out of time must therefore be dismissed.

3. Continuing victim status

80. The Government have not argued - and there is no indication - that after the Sofia City Administrative Court referred the matter to the president of the Sofia City Court for him to review whether it was indeed justified not to publish any part of the reasons for the acquittal of the former Minister of Internal Affairs on its website (see paragraph 27 above), the Sofia City Court published any part of those reasons or otherwise provided them to the applicant (contrast, mutatis mutandis, the circumstances in Vasil Vasilev v. Bulgaria, no. 7610/15, § 116, 16 November 2021).

81. Nor has it been suggested that there was some other way in which the applicant could obtain access to those reasons (contrast, mutatis mutandis, Bubon, § 47, and Centre for Democracy and the Rule of Law (dec.), § 58 in fine, both cited above) - seeing, in particular, that the Sofia City Court judgment was the only one in those criminal proceedings, no appeal having been brought against it (contrast the circumstances in Lamanna v. Austria, no. 28923/95, § 33, 10 July 2001, and Heather Moor & Edgecomb Ltd. v. the United Kingdom (dec.), no. 1550/09, 14 June 2011).

82. There is therefore no reason to find that the applicant has lost her victim status in respect of the matter of which she complained to the Court.

4. The Court's conclusion about the admissibility of the complaint

83. The complaint is, furthermore, not manifestly ill-founded or inadmissible on other grounds. It must therefore be declared admissible.

B. Merits

1. The parties' submissions

84. The applicant submitted that the interference with her Article 10 rights had been unlawful since the refusal to give her the reasons for the acquittal of the former Minister of Internal Affairs had not been duly justified with reference to the specific factual reasons which had prompted it. Moreover, when reviewing that refusal the courts had not checked whether the information in issue had been correctly classified and whether there had nevertheless been an overriding public interest in access to it being provided – even though both things were required by the 2000 Act. In any event, according to the Supreme Court of Cassation, criminal judgments could never be kept fully secret. The interference had also been disproportionate, as no account had been taken of the public's interest in knowing why a former Minister and Deputy Prime Minister had been acquitted. Limiting access to judgments was also inconsistent with the requirements of Article 6 § 1 of the Convention.

85. The Government submitted that the refusal to give the applicant the reasons for the acquittal of the former Minister of Internal Affairs had been based on the relevant law, which was clear and accessible. That refusal had been intended to maintain secrecy about the methods and means used to carry out covert surveillance, which would otherwise cease to be effective. It had therefore been meant to safeguard national security. In the light of the wide margin of appreciation enjoyed by the national authorities in such matters, the refusal had been proportionate and necessary. Unauthorised access to information of that sort could seriously harm Bulgaria's sovereignty, independence, territorial integrity or constitutional order, or its foreign policy or international relations in the field of national security.

2. The Court's assessment

(a) Existence of interference with the applicant's Article 10 rights

86. The conclusion that the refusal to provide the applicant with the reasons given by the Sofia City Court to acquit the former Minister of Internal Affairs engaged Article 10 of the Convention (see paragraph 69 above), inevitably leads to the conclusion that the refusal interfered with her rights under that Article (see Šeks v. Croatia, no. 39325/20, § 60, 3 February 2022; Saure (no. 2), cited above, § 51; and Zöldi, cited above, § 43).

(b) Justification for the interference

87. To be compatible with Article 10 of the Convention, such interference must, as stated in its second paragraph, be "prescribed by law", pursue one or more of the legitimate aims set out in that paragraph, and be "necessary in a democratic society" to attain that aim or those aims.

(i) "Prescribed by law"

88. When refusing the applicant's request for access to the reasons for the judgment acquitting the former Minister of Internal Affairs, the Sofia City Court proceeded on the premise that the 2000 Act applied (see paragraphs 20-21 above). When reviewing that decision, the Sofia City Administrative Court held that the 2000 Act did not apply, but on appeal the Supreme Administrative Court appears to have left the issue somewhat uncertain (see paragraphs 25-26 and 30 above). For their part, though making it plain that criminal judgments must be pronounced publicly and published online (see paragraphs 49 and 51 above), the Code of Criminal Procedure and the Judiciary Act 2007 contain no rules on how non-parties can obtain access to them if they have not been published. As for the Rules on the Administration of the Courts, they, in their successive iterations, explain how non-parties can obtain access to case-file material (see paragraph 48 above), but say nothing specifically on the point of court decisions and judgments. There is no information about how those rules are being applied in practice in such situations (compare with the circumstances in Straume v. Latvia, no. 59402/14, § 132, 2 June 2022).

89. In the light of all this, it is open to question whether Bulgarian regulation of the circumstances in which and the means by which non-parties, such as journalists like the applicant, can obtain access to copies of court decisions or judgments in criminal cases is foreseeable. It is, then, debatable whether the interference with the applicant's rights under Article 10 of the Convention was "prescribed by law" - it being settled that one of the requirements flowing from this expression is foreseeability (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30; Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999-VIII; and Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 250, 22 December 2020). Even if it is accepted, however, that the interference was "prescribed by law", it was in any event not "necessary in a democratic society" (see paragraphs 91-96 below).

(ii) Legitimate aim

90. As regards the aim of the interference, it should be noted that in Bulgaria (a) national security is apparently never cited as a standalone ground for covert surveillance, and applications to authorise such surveillance are invariably also based on the need to prevent or detect a criminal offence, and (b) surveillance for national security purposes appears to be entrusted to the State Agency for National Security, not the Ministry of Internal Affairs (see Ekimdzhiev and Others, cited above, §§ 22, 31-32, 39 (a) and 229 (a)). It can nonetheless be accepted that the disclosure of information about the methods or equipment used by a public authority for covert surveillance could put national security at risk - in particular since it could, by exposing the authorities' covert surveillance capabilities, impede the efficient future use of such methods or equipment for tasks related to national security (see, mutatis mutandis, Vereniging Weekblad Bluf! v. the Netherlands, 9 February 1995, § 35, Series A no. 306-A). In the light of this, it can be accepted that the interference was "in the interests of national security" within the meaning of Article 10 § 2 of the Convention.

(iii) "Necessary in a democratic society"

91. The salient question is whether the need to keep those matters secret made it necessary to conceal from the public and the media the entirety of the reasons for the acquittal of the former Minister of Internal Affairs, in which they were apparently discussed at some length.

92. The general importance of the publicity of judgments in a democratic society - including the reasons for them - has already been highlighted in paragraph 66 above. This applies even more to the reasons given for acquitting a high-ranking official of serious criminal charges, given the need to reassure the public that the criminal law is being administered equally and impartially, including where charges are brought against people in positions of power. Moreover, in the present case those charges related to allegations of serious misuse of covert surveillance equipment - which, as already noted, was a matter of considerable public interest in Bulgaria, since at the relevant time there were recurring scandals relating to the misuse of "special means of surveillance" (see paragraph 64 above).

93. As regards the question of whether this principle can be derogated from on national security grounds, the Court has already held, in different but closely related contexts, that even when a case concerns matters relating to national security and involves classified information, wholly concealing the judgment from the public cannot be justified. It has pointed out in this connection that techniques exist which can accommodate legitimate security concerns without doing away with fundamental procedural guarantees such as the publicity of judicial decisions - for instance classifying a judgment in part only, or publishing it in redacted form (see Raza v. Bulgaria, no. 31465/08, § 53, 11 February 2010; Amie and Others v. Bulgaria, no. 58149/08, §§ 95 and 99, 12 February 2013; Fazliyski, cited above, § 69; Nikolova and Vandova v. Bulgaria, no. 20688/04, § 85, 17 December 2013; and Vasil Vasilev, cited above, § 117). That has been recognised by the Bulgarian Supreme Court of Cassation in relation to judgments in criminal cases (see paragraph 52 above).

94. A concrete illustration of such a technique is for the relevant court to give both an "open judgment", which is publicly available, and a "closed judgment", which is made available only to the parties or some of them or their representatives, and contains details of the reasoning which cannot be put in the "open judgment" because doing so would harm national security (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 215 in fine, ECHR 2009; Al-Jedda v. the United Kingdom [GC], no. 27021/08, § 15, ECHR 2011; Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, § 26 in fine, ECHR 2012; Abdul Wahab Khan v. the United Kingdom (dec.), no. 11987/11, §§ 9-11, 28 January 2014; I.R. and G.T. v. the United Kingdom (dec.), nos. 14876/12 and 63339/12, § 10, 28 January 2014; and A.F. v. the United Kingdom (dec.), no. 7674/08, § 7, 20 May 2014).

95. There are no reasons to think that it was impossible to resort to some arrangement of that kind in the present case. Indeed, the Sofia City Administrative Court expressly urged the Sofia City Court to engage in such an exercise (see paragraph 27 above). It is not the Court's role to articulate the exact way in which this should have been done (see, mutatis mutandis, Mitov and Others, cited above, §§ 34 in fine and 40).

96. As demonstrated by the above analysis, the Sofia City Court could have attained the aim which it was pursuing - to maintain secrecy about the methods and means used to carry out covert surveillance - by other means. For example, it could have given consideration to resorting to one of the techniques set out above to avoid revealing information which could put national security at risk, while still explaining in a meaningful way why it had decided to acquit the former Minister of Internal Affairs and his co-accused. Its choice to keep secret the entirety of the reasons for that acquittal - and the resulting interference with the applicant's rights under Article 10 of the Convention - must accordingly be seen as falling outside any acceptable margin of appreciation enjoyed by the Bulgarian authorities in relation to the matter under consideration, and hence as going beyond what was "necessary in a democratic society".

97. There has therefore been a breach of that Article.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

98. The applicant complained that she had not had an effective remedy in respect of her complaint under Article 10 of the Convention. She relied on Article 13 of the Convention, which reads:

"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

A. Admissibility

1. Compatibility ratione materiae

(a) The parties' submissions

99. The Government argued that since the complaint under Article 10 of the Convention was inadmissible, the complaint under Article 13 of the Convention was not arguable. That latter provision did not therefore apply.

100. The applicant did not comment on that point.

(b) The Court's assessment

101. Article 13 of the Convention requires a domestic remedy only in respect of Convention complaints which are arguable (see, among other authorities, Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131; Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 137, ECHR 2003-VIII; and Ivan Atanasov v. Bulgaria, no. 12853/03, § 100, 2 December 2010).

102. In this case, the analysis of both whether the complaint under Article 10 of the Convention was compatible ratione materiae with the provisions of the Convention and also of the merits of that complaint (see paragraphs 62-68 and 86-96 above) makes it plain that it was arguable.

103. It follows that the Government's objection on the point must be dismissed, and that Article 13 of the Convention is applicable (compare, mutatis mutandis, Manushaqe Puto and Others v. Albania, nos. 604/07 and 3 others, § 61, 31 July 2012, and Abdilla v. Malta, no. 36199/15, § 56, 17 July 2018, and contrast, mutatis mutandis, Plattform "Ärzte für das Leben" v. Austria, 21 June 1988, § 39, Series A no. 139, and Sakskoburggotski and Chrobok v. Bulgaria, nos. 38948/10 and 8954/17, § 195, 7 September 2021).

2. Compliance with the time-limit under Article 35 § 1 of the Convention

104. The rival contentions of the parties about whether the complaint was raised within the time-limit under Article 35 § 1 of the Convention have been summarised in paragraphs 70-73 above.

105. For the same reasons as those in paragraphs 74-78 above, the complaint can likewise be seen as having been raised within the time-limit under Article 35 § 1 of the Convention.

3. The Court's conclusion about the admissibility of the complaint

106. The complaint is, furthermore, not manifestly ill-founded or inadmissible on other grounds. It must therefore be declared admissible.

B. Merits

1. The parties' submissions

107. The applicant submitted that when reviewing the refusal to provide her with the reasons for the former Minister's acquittal, the courts had neither applied the law properly nor duly examined the refusal's proportionality.

108. The Government pointed out that the applicant had been able to seek judicial review of the refusal. In their view, in those proceedings the courts had duly examined its lawfulness and had considered the substance of the applicant's grievance under Article 10 of the Convention, without declining to scrutinise any aspect of the case.

2. The Court's assessment

(a) General principles

109. The effective remedy required by Article 13 of the Convention must enable the competent national authority to both deal with the substance of the relevant Convention complaint and give appropriate relief (see, among many other authorities, Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung, cited above, § 54). This means, in particular, that that authority must deal with the complaint consistently with the standards and principles flowing from this Court's case-law (see, among other authorities, Glas Nadezhda EOOD and Elenkov v. Bulgaria, no. 14134/02, § 69, 11 October 2007; C.G. and Others v. Bulgaria, no. 1365/07, § 62, 24 April 2008; Neshkov and Others v. Bulgaria, nos. 36925/10 and 5 others, §§ 185-86, 27 January 2015; and Kiril Ivanov v. Bulgaria, no. 17599/07, § 59, 11 January 2018). In cases where a complaint under Article 10 of the Convention is brought, the national authority must assess, among other things, whether the interference was "necessary in a democratic society" to attain a legitimate aim (see Neshkov, § 185, referring to Glas Nadezhda EOOD and Elenkov, §§ 68-70, both cited above). The same goes, more specifically, for complaints under Article 10 concerning access to information (see, for example, Times Newspapers Ltd and Kennedy v. the United Kingdom (dec.) [Committee], no. 64367/14, § 99, 13 November 2018).

(b) Application of those principles

110. In this case, having come to the view that the 2000 Act did not apply to the applicant's request for information, the Sofia City Administrative Court did not examine whether it had been substantively necessary to deny her access to the reasons for the former Minister's acquittal (see paragraphs 25-26 above). It did not therefore assess the necessity of the interference with the applicant's rights under Article 10 of the Convention, or engage in any balancing exercise between those rights and any countervailing considerations (compare, mutatis mutandis, Zöldi, cited above, § 54 in fine). Indeed, its reasoning, as well as that of the Supreme Administrative Court in a number of other cases (see paragraphs 39-40 above), suggests that information requests under the 2000 Act are not the proper means of seeking information about court decisions, and that claims for judicial review of refusals to provide access to public information under section 40 of the 2000 Act (see paragraph 44 above) are accordingly not at all a remedy in relation to such matters.

111. On appeal, the Supreme Administrative Court apparently agreed with the lower court's analysis about the scope of application of the 2000 Act, but nonetheless went on to hold that it had been justified to refuse the applicant's request on the basis of the provisions of the Act which permitted the restriction of the right of access to public information on national security grounds (see paragraph 30 above). In contrast to the court below it, the Supreme Administrative Court did go into the question of whether it had been substantively necessary to deny the applicant access to the reasons for the former Minister's acquittal. But it did so entirely in the abstract, with reference to the legislative choices in the matter, rather than on the basis of a specific analysis of whether the whole text of those reasons contained information whose disclosure could undermine national security, and whether any steps falling short of concealing the entirety of those reasons from the public could still prevent the risk of such harm. The Supreme Administrative Court did not explain what had driven it to opt for that approach, but it cannot be overlooked that since the lower court had refused to direct the respondent to make those reasons available for its own inspection - as was possible under section 41(3) of the 2000 Act (see paragraphs 23 and 45 above) - the reasons for the Minister's acquittal were not in the case file, and the Supreme Administrative Court was thus in practice not in a position to carry out such a fact-specific balancing exercise (contrast the circumstances in Times Newspapers Ltd and Kennedy, cited above, § 107).

112. The judicial review proceedings brought by the applicant therefore did not - and perhaps could not as a matter of Bulgarian law - furnish an effective remedy in respect of her complaint under Article 10 of the Convention.

113. It must therefore be verified whether there was some other procedure to which she could have resorted and which could have provided her with a remedy.

114. It should be noted in this connection that after dismissing the applicant's claim for judicial review, the Sofia City Administrative Court went on to say that the claim was also to be seen as a report under Article 119 of the Code of Administrative Procedure, and was therefore to be referred to the president of the Sofia City Court for decision (see paragraph 27 below). The parties have, however, not provided any information about how that matter unfolded subsequently. Nor have the Government sought to argue that that procedure amounted to an effective remedy in respect of the applicant's complaint, or produced any examples of domestic practice confirming its effectiveness (see, mutatis mutandis, Drozd v. Poland, no. 15158/19, § 33, 6 April 2023).

115. The procedure under Articles 119 et seq. of the Code of Administrative Procedure (see paragraphs 53-54 above) cannot be seen as an effective remedy in respect of the applicant's complaint for other reasons as well. As explained by the Bulgarian Supreme Administrative Court (see paragraph 53 in fine above), making a report under Article 119 does not constitute or give rise to a personal right for the person concerned to obtain redress. Nor is there any requirement for such a report to be examined with the participation of the person who has made it, or for the authority which deals with the report to ensure that person's effective participation in the proceedings (see, mutatis mutandis, Neshkov, cited above, § 212). A hierarchical complaint of that sort, which is not based on a personal right to secure the exercise of the State's supervisory powers, is normally not an effective remedy for the purposes of Article 13 of the Convention (see , among other authorities, Hartman v. the Czech Republic, no. 53341/99, §§ 66 and 82, ECHR 2003‑VIII; Donner v. Austria, no. 32407/04, § 45, 22 February 2007; and Shirkhanyan v. Armenia, no. 54547/16, § 139, 22 February 2022).

116. The Government have not identified any other possible remedy - for instance a remedy applicable to information requests considered to fall outside the scope of the 2000 Act because they concern material in court case files - or sought to explain why any such remedy would be effective (see, mutatis mutandis, Ivanov and Others v. Bulgaria, no. 46336/99, § 75, 24 November 2005). Nor was any such remedy alluded to at domestic level (contrast, mutatis mutandis, the circumstances in Times Newspapers Ltd and Kennedy, cited above, §§ 110 and 112).

117. Nor has it been argued that the application of Article 13 of the Convention was subject to an implied limitation because the decision not to provide the applicant with the reasons given by the Sofia City Court to acquit the former Minister of Internal Affairs was made by a court administrator on the basis of the opinion of the judge who had presided the panel which had tried the criminal case (see paragraphs 20-21 above).

118. There has therefore been a breach of Article 13 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

119. Article 41 of the Convention reads:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

120. The applicant did not seek compensation in respect of pecuniary or non-pecuniary damage, and there are no exceptional circumstances requiring the Court to consider the point on its own initiative.

B. Costs and expenses

1. The applicant's claim and the Government's comments on it

121. The applicant sought reimbursement of (a) 2,250 euros (EUR) incurred in fees for twenty-five hours of legal work on the proceedings before the Court, at the hourly rate of EUR 90, and (b) EUR 500 incurred in fees for the translation of her submissions to the Court into English. She requested that any award under this head be made payable to her lawyer.

122. In support of the claim, the applicant produced: (a) a retainer agreement with her lawyer, under whose terms the lawyer agreed to defer the payment of his remuneration until the end of the proceedings before the Court; (b) a report by the lawyer on his work on the case; (c) a bill issued by the lawyer and accepted by the applicant; (d) a time sheet drawn up by the lawyer; and (e) a contract for translation services between the lawyer and a translator.

123. The Government contested the quantum of the claim in respect of translation expenses, pointing out that the applicant had not specified the number of pages translated or the translator's fee per page. They were also of the view that the claim in respect of lawyers' fees was excessive, as regards both the number of hours and the hourly rate.

2. The Court's assessment

124. According to the Court's case-law, costs and expenses may be awarded under Article 41 of the Convention if it is established that they were actually and necessarily incurred and are reasonable as to quantum.

(a) Lawyer's fees

125. In this case, the retainer agreement and time sheet produced by the applicant in support of her claim are sufficient to show that she has actually incurred the lawyer's fees whose reimbursement she sought. The mere fact that the lawyer agreed to defer the payment of those fees until the end of the proceedings before the Court is of no significance: a lawyer's fees have been actually incurred even if the lawyer has deferred their payment without releasing the applicant from the obligation to pay them (see Merabishvili v. Georgia [GC], no. 72508/13, § 371, 28 November 2017; B and C v. Switzerland, nos. 889/19 and 43987/16, § 79, 17 November 2020; and Borislav Tonchev v. Bulgaria, no. 40519/15, § 155, 16 April 2024).

126. No doubt arises about the necessity of those fees. It can also be accepted that they are reasonable as to quantum.

127. The applicant is therefore to be awarded the full amount claimed by her under this head (EUR 2,250), plus any tax that may be chargeable to her. As she requested, that sum is to be paid directly into the bank account of her lawyer, Mr A. Kashamov.

(b) Translation costs

128. As for the EUR 500 in translation costs whose reimbursement was also sought by the applicant, those costs are also in principle recoverable under Article 41 of the Convention (see Borislav Tonchev, cited above, § 159, with further references). It has not been contested that the applicant's lawyer actually paid those costs. It can also be accepted that they were in turn actually incurred by the applicant. It is true that the retainer agreement between her and her lawyer did not stipulate that she had to cover translation or other costs incurred by the lawyer in connection with the proceedings before the Court. However, the bill issued by the lawyer, and accepted by the applicant, included the translation costs as well. It can therefore be accepted that the applicant is legally bound to reimburse her lawyer for those costs.

129. The Government did not contest the necessity of those translation costs. Although higher than those accepted as reasonable in recent cases against Bulgaria involving a similar amount of translation work (see Handzhiyski v. Bulgaria, no. 10783/14, §§ 68 (d) and 75, 6 April 2021, and Genov and Sarbinska v. Bulgaria, no. 52358/15, §§ 99 (d) and 107, 30 November 2021), they can still be seen as reasonable. They are to be awarded in full (EUR 500), plus any tax that may be chargeable to the applicant. As she requested, that sum is likewise to be paid directly into the bank account of her lawyer, Mr A. Kashamov.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 10 of the Convention;

3. Holds that there has been a violation of Article 13 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,750 (two thousand seven hundred and fifty euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly into the bank account of her lawyer, Mr A. Kashamov;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 4 March 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Ioannis Ktistakis
Deputy Registrar President

[1] An international mobile subscriber identity-catcher, or IMSI-catcher, is a device capable of covertly intercepting mobile telephone communications and tracking the location of mobile telephone users.

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You are here: BAILII >> Databases >> European Court of Human Rights >> GIRGINOVA v. BULGARIA - 4326/18 (Article 10 - Freedom of expression - {general} : Third Section) [2025] ECHR 58 (04 March 2025) URL: http://www.bailii.org/eu/cases/ECHR/2025/58.html Cite as: [2025] ECHR 58