| Applicant name | BORISLAV TONCHEV |
| Applicant type | natural person |
| Number of applicants | 1 |
| Country | BULGARIA |
| Application no. | 40519/15 |
| Date | 16/04/2024 |
| Judges | Pere Pastor Vilanova, President, Jolien Schukking, Yonko Grozev, Darian Pavli, Peeter Roosma, Ioannis Ktistakis, Oddný Mjöll Arnardóttir |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation |
| Reason | Not prescribed for by law |
| Type of privacy | Informational privacy |
| Keywords | Retention of data |
| Facts of the case | The applicant complained under Article 8 of the Convention about the retention of the data related to his substitute administrative penalty and the actual and potential disclosure of those data. |
| Analysis | Although the record card for the applicant’s penalty was destroyed in 2012, it is open to question whether, as claimed by him, the electronic version of the data from that card is still being retained. Although they submitted a copy of a criminal record report issued in November 2022 which did not reflect those data, the Government did not expressly confirm that the data themselves had been deleted. Moreover, the applicant’s assertion is confirmed by the Government’s insistence elsewhere in their observations that according to a proper interpretation of the relevant regulations, those data are not subject to deletion. That position fully matches the position consistently expressed at domestic level by the Ministry of Justice, which drafted those regulations, and by the Supreme Administrative Court – that electronic data about substitute administrative penalties are to be kept indefinitely The criterion of no significant disadvantage hinges on the idea that a breach of a Convention right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by the Court. The assessment of this minimum is relative and depends on all the circumstances of the case, and the severity of a breach should be gauged taking account of both the applicant’s subjective perceptions and what was objectively at stake. However, even if it is found that the applicant has not suffered a significant disadvantage as a result of the matter complained of, the complaint may nonetheless not be declared inadmissible on this ground if respect for human rights, as defined in the Convention and the Protocols thereto, requires an examination on the merits (see, as a recent authority. The Court is not concerned with whether the applicant suffered a significant disadvantage owing to the actual disclosure in 2012-13 of the data about his penalty to the authority which was employing him, an act which resulted in his dismissal. It has already found that his complaint in respect of that actual disclosure is inadmissible because it was raised after the expiry of the six-month time-limit. It follows that the only matters in relation to which the Court must ascertain whether the applicant has suffered a significant disadvantage are (a) the alleged ongoing retention of data about his penalty and (b) the potential disclosure of those data. There is no evidence that the ongoing retention of those data in itself has caused or is causing the applicant any real detriment. In this type of case, a complaint about retention in reality flows not from the retention itself, but from the fact that if data are retained, the disclosure of those data may follow. The applicant’s concerns in relation to the data about his penalty relate to the effect that their disclosure could have on his employment prospects. It is clear, however, that under the relevant regulations, those data cannot be obtained by a private employer, or indeed by most public-sector employers. It cannot therefore be said that the applicant was tangibly affected by the potential disclosure of the data about his penalty. Respect for human rights nonetheless requires an examination of the merits of a complaint if it raises questions of a general character affecting the observance of the Convention, for instance when there is a need to clarify a State’s obligations or to induce it to resolve a structural deficiency. The complaint under examination raises broader issues with regard to the compatibility of the retention of data about substitute administrative penalties in Bulgaria with Article 8 of the Convention. It is telling that those issues, which undoubtedly affect thousands of people in Bulgaria who are given such penalties each year, have caused a long-running controversy between Bulgaria’s Personal Data Protection Commission and its Ministry of Justice. The salient question in this case is whether the regulations governing the ongoing retention of the data about the applicant’s substitute administrative penalty are sufficiently foreseeable. Regulations which are vague enough to cause confusion even among the national authorities in charge of their interpretation and application can hardly be seen as sufficiently foreseeable |
| Other Article violation? | – |
| Damage awarded | (a) that the respondent State is to pay the applicant, within three months from the date on which this judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,900 (two thousand nine hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement and to be paid directly into the bank account of the applicant’s lawyer, Mr A. Kashamov; |
| Documents | Judgment |