March 20, 2026
By Dr. Radosveta Vassileva
On 17 February 2026, the European Court of Human Rights (ECtHR or the Court) delivered its much-anticipated judgment in Green Alliance v Bulgaria (Application no 6580/22), which concerns the application of Article 8 of the European Convention on Human Rights (ECHR or the Convention) in the very sensitive context of national security. The Court unanimously found that the possibility for Bulgaria’s secret services to infiltrate legal entities or liberal professions with ‘agents on cover’, envisaged in national legislation, violates Article 8 because Bulgarian law does not provide any effective guarantees against arbitrary action. Not only is the case important for the evolution of Article 8 itself, but it also seems to reveal a systemic problem in light of earlier ECtHR’s case law condemning Bulgaria for unlawful wiretapping, with which the country struggles to comply. Regrettably, in Bulgaria, covert surveillance is often used for illegitimate purposes, such as intimidation or gathering private information for blackmail.
Under Bulgarian law, Bulgaria’s secret services (DANS) may infiltrate the state administration, legal entities, civil associations, and liberal professions with ‘agents on cover’. These spies are seen as distinct from ‘agents under cover’, which are also envisaged in legislation, because they are not allowed to employ covert surveillance techniques or equipment. Moreover, neither the deployment of ‘agents on cover’, nor their work is subjected to judicial review.
The notion of ‘agent on cover’ was first introduced to Bulgarian legislation via regulations handed down by the Council of Ministers purporting to implement amendments to the Law on the Agency for National Security in 2008 (paras 6-17). In 2018, upon a proposal by DANS itself, and contrary to criticism by the Bulgarian Helsinki Committee, the scope of these regulations was broadened (para 20). Not only was the list of potential targets of infiltration expanded, but also a key bar to arbitrary action – the requirement that the targeted entity consent to such infiltration – was removed from the text of the regulations (paras 18-26).
The applicants in this case – the Green Alliance, an association promoting environmental protection – sought judicial review of the amended regulations before Bulgaria’s Supreme Administrative Court on several grounds, including violations of Article 8 of the ECHR. However, their claim was dismissed as unfounded (paras 31-40), which paved their way to an ECtHR application.
Two main questions arose in the eyes of the ECtHR: 1) whether the applicants could claim to be a victim of interference in private life in abstracto, solely based on the existence of the provisions on ‘agents on cover’ in legislation; 2) whether such interferences were justified and thus amounted to a violation of Article 8 of the Convention.
The Court held that the mere existence of the regulations on ‘agents on cover’ constituted interference with the applicants’ rights under Article 8 – it was not necessary to assess whether the association was at ‘risk’ of such interference in view of its ‘specific situation’ (para 135).
To reach this conclusion, the Court first reminded of its own settled case law on the meaning of ‘correspondence’ and ‘home’ in Article 8(1) of the Convention. It held that an ‘agent on cover’ would have ‘undoubtedly’ been able to obtain information about the applicants’ correspondence (para 113). It also clarified that correspondence could be interfered with not only at the time of sending or receipt, but also ‘subsequently, through accessing the medium… where it [had been] stored’ (para 114). As such, the presence of an ‘agent on cover’ in an association, such as the Green Alliance, would violate the right to private correspondence. Moreover, the Court explained that an ‘agent on cover’ would have ‘long-term access to [the association’s] office or other premises’, which, in its settled case law, were considered ‘home’ within the meaning of Article 8(1) of the Convention (para 117). Thus, this would also violate the applicants’ right to respect for their home (para 118).
More importantly, to reach its conclusion that such interference with the right to respect to correspondence and to home could be claimed in the abstract, the ECtHR applied the two-step test, which it had previously developed in Roman Zakharov v Russia (Application no 47143/06) and Centrum för rättvisa v Sweden (Application no 35252/08).
First, it examined if the Green Alliance could fall under the scope of the entities, which could be hypothetically targeted by ‘agents on cover’ (para 122). The application of the first leg of the test was straightforward because of the broadness of the Bulgarian regulations on ‘agents on cover’ (para 122).
Second, it assessed if there were effective remedies alleviating suspicions that the prerogative for deployment of ‘agents on cover’ could be abused. The application of the second leg required an analysis of the Law on the Agency for National Security, DANS’ track record of refusing to disclose information about its work to the public, case law by Bulgarian courts affirming DANS’ decisions not to disclose information, and hypothetical remedies argued by the Bulgarian government, such as the assertion that the ‘agents on cover’ could be sued by the affected parties (paras 123-135). The latter assertion seems to have irritated the ECtHR, which went as far as saying that there was a ‘level of unreality about the suggestion… in the absence of any lawful possibility for the persons affected by their deployment to learn about it’ (para 134).
The ECtHR held that the regulations on ‘agents on cover’ fall short of the ‘minimum safeguards against arbitrariness and abuse’ required under Article 8(2) of the Convention (para 165). The ECtHR reminded that its general principles on the compatibility of covert surveillance with Article 8 were primarily laid out in Roman Zakharov v Russia (Application no 47143/06). The key overreaching requirement entails effective safeguards – especially ‘review and supervision arrangements’ – which can keep the interference within ‘what is necessary in a democratic society’, as envisaged in Article 8(2) of the Convention (para 142).
However, it is interesting that, to evaluate if the principles developed in Roman Zakharov were respected in the Bulgarian context, the ECtHR stepped primarily upon earlier condemning case law against Bulgaria – namely, Ekimdzhiev and others v Bulgaria (Application no 70078/12), which concerns unlawful wiretapping. It should be noted that in Ekimdzhiev and others, the ECtHR found Bulgaria in violation of Article 8 even though surveillance in this context is pro forma subject to judicial review.
Regarding the grounds for deployment of ‘agents on cover’, the Court reminded that, in Ekimdzhiev and others, the nature of offences that could give rise to deployment of surveillance means and the targeted persons by such means were of relevance (para 146). In the case at hand, not only DANS, as an agency, has a mandate that extends beyond the targeting of ‘unlawful conduct by potential targets’ (para 147), but also the regulations on ‘agents on cover’ are so broad that ‘theoretically any individual or private organisation’ can find themselves a target, which can have ‘a chilling effect on civic participation’ (para 148).
Regarding the duration of deployment of ‘agents on cover’, which is not subject to any time limit, the Court found that this stood ‘in marked contrast’ to the time-barred use of surveillance means in Ekimdzhiev and others (para 149).
On the question of the deployment procedure itself, the Court reiterated that the relevant factors in Ekimdzhiev and others included the status of authority and the manner in which it authorises surveillance requests(para 150). The ECtHR seems to have been primarily troubled that the deployment of ‘agents on cover’ was subject to a simple internal procedure at DANS, which did not involve the approval of an ‘independent outsider’ (para 151).
Vis-à-vis the issue of storing and processing data obtained by ‘agents on cover’, the Court stated that the regulations did not cover this matter at all – meanwhile, in Ekimdzhiev and others even explicit detailed provisions were found problematic because of diverse ‘lacunae’, which permitted misuse of data (para 154).
With regards to the supervision of ‘agents on cover’, the ECtHR restated the relevant factors that it established in Ekimdzhiev and others – namely, the independence of the supervisor and the possibility for effective public scrutiny (para 155). On the one hand, there are no provisions pertaining to the supervision of such agents in legislation. On the other hand, other national institutions supervise DANS’ work only in a general manner (paras 155-160).
On the related questions of notification and damages, the ECtHR once again established stark contrasts between the present case and its findings in Ekimdzhiev and others (paras 161-164). Unlike the legislative framework pertaining to wiretapping, which envisages some limited opportunities for targets to be informed that they have been wiretapped, the regulations on ‘agents on cover’ do not envision such notification, which makes it impossible for victims to seek damages.
As pointed out by human rights lawyers, Green Alliance should be welcomed as a ‘a meaningful step forward’. It follows in the footsteps of two important condemning judgments concerning different types of covert surveillance and interception of communication in Bulgaria – Ekimdzhiev and others v Bulgaria (Application no 70078/12) and Association for European Integration and Human Rights and Ekimdzhiev v Bulgaria (Application no 62540/00). As such, it helps shine a light on a systemic problem.
In view of the circumstances, including the fact that, in essence, DANS operates like a black box, the ECtHR assessed the interference with the applicants’ private life in the abstract. However, clandestine operations against civil society and inconvenient opponents of the government are common in Bulgaria. For instance, the National Bureau for Control of Special Intelligence Means has already established that civil activists, human rights lawyers, and journalists were wiretapped without any evidence of crime during the 2020 mass anticorruption protests, which lasted for months.
More recently, in February 2026, the Bulgarian Helsinki Committee released its alarming Wiretapped Justice report, in which it raised awareness of the ‘imbalance’ between the scale of wiretapping of magistrates and the use of data obtained by such wiretapping in actual criminal proceedings against magistrates (p 6 of the report). This, in turn, implies that (1) either many magistrates are wiretapped without any evidence of crime with the illegitimate purpose of gathering sensitive information about their private lives, which could be used to pressure them; (2) or that evidence of crimes by magistrates is gathered and the magistrates in question are blackmailed to take certain decisions in the course of their work to avoid facing criminal proceedings (see pp 4-6 of the report; see also here).
If magistrates are such easy targets for potentially unlawful wiretapping, which, however, is subjected to some, albeit deficient, safeguards, magistrates and civil society alike are even less protected against arbitrary deployment of ‘agents on cover’ against them. This is even more so because such deployment is not subjected to any reasonable safeguards.
Green Alliance affirms the principles of in abstracto evaluation of interference under Article 8 developed in Roman Zakharov. Roman Zakharov is a Grand Chamber judgment of 2015, which was embraced by commentators for not only demonstrating the ECtHR’s ‘willingness’ to defend Article 8, but also to raise questions about a ‘surveillance system as a whole’.
One may argue that, in Green Alliance, the ECtHR goes a step further in its assertion of Article 8 because it applied the criteria from Roman Zakharov to a situation concerning the physical deployment of spies and despite assurances by the government that such agents operate only ‘exceptionally’, ‘as a measure of last resort’, and ‘when there is proven operational need’ (paras 137-138). Relatedly, it is notable that the ECtHR refers to the ‘chilling effect’ of the regulations on ‘agents on cover’ on civic participation. The notion of ‘chilling effect’ is often used by the ECtHR in media law cases. Commentators argue, based on an overview of ECtHR case law, that the Court uses it only when something ‘striking’ and ‘genuine’ is at stake.
Green Alliance, nevertheless, also shows some of the difficulties of applying the criteria of Roman Zakharov in the rather sensitive, yet nebulous context of clandestine activities. As highlighted above, it is interesting that the ECtHR used its prior judgment in Ekimdzhiev and others v Bulgaria, in which it essentially exposed flaws of Bulgaria’s whole surveillance system, as a reference point. This seems to indicate that Ekimdzhiev and others will serve as the benchmark against which to assess violations of Article 8 in the context of national security, at least in Bulgaria, in the future.
By relying on such a comparative approach, the ECtHR showed that the system for deployment of ‘agents on cover’ is even more deficient than the system for ‘interception of communication’ in terms of effective safeguards. Yet, one wonders if the serious flaws of the practice of deploying ‘agents on cover’ would have been as visible in the Bulgarian context had Ekimdzhiev and others not been delivered beforehand. One may conjecture that the Court was more eager to condemn the deficiencies in the practices of Bulgaria’s secret services precisely because it was already aware of the failings of the country’s surveillance system.
Despite its merits, Green Alliance will hardly make a difference in the Bulgarian context in practice because of the country’s traditional creative legislative and tactical manoeuvres aimed at undermining the implementation of ECtHR judgments. It is already revealing that Bulgaria has been failing to implement Kolevi v Bulgaria (Application no 1108/02), which is considered by many as the most pivotal judgment pertaining to the country’s rule of law, for the past sixteen years.
In this light, as visible from the latest decision of March 2026 by the Committee of Ministers concerning the execution of Ekimdzhiev and others, key concerns remain about the screening and processing of data and the independence of external oversight of wiretapping, which will be difficult to alleviate.
Considering that, as highlighted in Green Alliance itself, the legislative framework for wiretapping examined in Ekimdzhiev and others is much more explicit and detailed compared to the framework for the deployment of ‘agents on cover’, which, for the large part, remains internal to DANS, it is unrealistic to expect any meaningful reform soon. Even more worrisome is that there have been instances where DANS partially subverted legislative reform curtailing its powers through public internal regulations. If this is possible, then little doubt remains that such subversion is possible through secret internal regulations or oral instructions.
Green Alliance is an important milestone because it affirms the ECtHR’s commitment to enforce Article 8 and to promote civic participation. Nevertheless, its impact on the ground will remain limited because of the specific nature of clandestine activities in the context of national security. While it is possible to abuse surveillance prerogatives even in democracies, countries facing serious rule of law deficiencies, such as Bulgaria, are bound to take such abuse a step further.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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