September 25, 2026
By Martin Scheinin and Sophie Duroy
The latest judgment on surveillance powers in Bulgaria, identified by the Court as a Key Case, is a puzzling read. The Court is undoubtedly right to find that Bulgaria continues to violate the Convention through its surveillance practices, including in relation to civil society organisations. Yet Kanev is, in our view, equally important for what it reveals about the Court’s broader approach to privacy and surveillance in the twenty-first century. We recently published an assessment of how the Court’s proceduralist approach to mass surveillance dilutes the power of a human rights compliance assessment to a checklist of procedural ‘safeguards’ and sets a double standard in respect of European states. This blog post follows the line of argument presented in that analysis. As a separate matter, we also believe that the joint dissenting opinion in Kanev by judges Pavli and Ní Raifeartaigh should ring some alarm bells concerning the Court’s urge to subsume this rather ill-founded case to further its proceduralist approach.
Read more: Kanev v. Bulgaria: How far can the ECtHR sail tied to the mast of proceduralist review of surveillance?The case of Kanev and Bulgarian Helsinki Committee v. Bulgaria (hereinafter Kanev) follows a line of cases concerning states’ exercise of surveillance powers in which the Court zooms in on Article 8 (protection of private and family life, home and correspondence) and applies a legality test centred on the framework of domestic safeguards against abuses that may violate human rights. In Kanev, the applicants had made several requests to the Bulgarian authorities asking to know whether they had been subjected to surveillance measures and, in particular, whether the government was using informants inside the Bulgarian Helsinki Committee itself (paras 1, 6, 8, 12, 14, 28, 40, 49). Despite multiple administrative and judicial proceedings, the applicants did not receive answers to their questions. Instead, they got various explanations for why the requested answers could not or would not be provided.
The Court identified as the main issue before it whether the refusal by the Bulgarian authorities to confirm or deny whether the applicants had been subjected to surveillance was in breach of Article 8 of the Convention. This issue itself was ‘seen against the background of allegedly well-founded suspicions that the Agency was abusing its broad surveillance powers, and the alleged absence of effective supervision of how it processes data acquired’ (para 2). Through this framing, the Court signalled that it was conducting an in abstracto assessment of Bulgaria’s system of surveillance powers.
Such an assessment had already been carried out in the 2022 judgment of Ekimdzhiev and Others v. Bulgaria(see commentary here). There, the Court joined the examination of the victim status of the applicants with the merits of the case (para 259) and then held that an examination of the relevant laws and practices in the abstract was justified (para 277). It then found that Bulgarian law on secret surveillance and data retention fell short of the minimum safeguards against arbitrariness and abuse required under Article 8 of the Convention (paras 356, 419), as it did not meet its ‘quality of law’ requirement and was, therefore, incapable of keeping the human rights interference to what is ‘necessary in a democratic society’ (paras 358, 420).
Following Ekimdzhiev, in Kanev, the Court found the safeguards provided by Bulgarian domestic law insufficient for meeting the ‘quality of the law’ requirement of Article 8 (para 264). As a consequence, no analysis needed to be conducted on the requirements of legitimate aim or necessity (para 265). The requirements of respecting the essence of human rights and of proportionality between the benefit obtained towards a legitimate aim and the resulting interference with human rights were left unaddressed by the Court, save for references to external materials in the comparative law part of the judgment (Sections II to IV) and to these requirements as elements of the domestic law safeguards that the Court requires as part of its legality test (paras 241-242, 284). The message is clear: while other human rights instruments and bodies may address questions of essence and proportionality, what the Court requires is compliance with its own checklist of procedural safeguards where proportionality assessment is one box for the domestic authorities to tick, not something the Court itself would need to do.
Having found a violation of Article 8 by five votes to two, the Court unanimously decided not to examine the admissibility or merits of the remainder of the applicants’ claims concerning violations of Articles 10, 11, and 13 (paras 271, 280, 285). It also held that the finding of a violation of Article 8 amounted to sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicants (para 290). While the Court ordered Bulgaria to pay the applicants 205 euro for their postage and part of the court fees in Bulgaria, it denied their much larger claim for legal costs (paras 296-300). In sum, the applicants got a confirmation of what had been decided in Ekimdzhiev, namely that Bulgaria’s system of surveillance is in breach of Article 8 of the Convention. As a matter of fact, Kanev contains 19 references to Ekimdzhiev.
As a preliminary to our commentary below, we wish to cite the Court’s reasoning for dismissing the applicant’s claim for non-pecuniary damage in paragraph 290: ‘In the present case, no evidence has been produced to show that the refusal to inform the applicants of whether the Agency was processing data relating to them has caused them any tangible detriment. The applicants did not even specify the nature of the non-pecuniary damage that they had allegedly suffered on that account; …’ In this paragraph, the Court comes alarmingly close to stating that the applicants did not meet the victim requirement in respect of the Bulgarian surveillance regime.
Kanev includes a scathing dissent by Judges Pavli and Ní Raifeartaigh, who considered the applications either manifestly ill-founded or otherwise inadmissible. At the heart of their disagreement with the majority was the applicants’ characterisation of their requests. In the dissenting judges’ view, these had not been properly formulated as requests for access to personal data held by the Agency, but rather as requests for information about the use of intelligence methods (para 1). This distinction matters because, as the dissenting opinion points out, the Bulgarian Helsinki Committee, as a legal entity, could not claim an interference with its ‘personal data’ under Article 8, but only with its correspondence (para 4).
The dissenting judges also emphasised the specificities of intelligence oversight. There is, they observed, no general individual right to know whether one has been the subject of a particular intelligence operation (para 2). Referring to Kennedy v. the United Kingdom, they recalled that the Court had previously accepted that an individual could simply be informed that there had been no illegal surveillance, on a ‘neither confirm nor deny’ basis (para 10). More fundamentally, they warned against conflating two distinct regulatory frameworks: data protection regimes, on the one hand, and the legal frameworks governing state intelligence functions, on the other. In their view, the majority’s approach ‘blurs the line’ between these two situations (para 13).
One must therefore ask why, despite the reasons given by the two dissenting judges for why the case should have been declared inadmissible, the majority of the Court went ahead with a judgment on the merits that offers little more than a boilerplate explanation for why, in abstracto, the Bulgarian surveillance regime fails (again) to meet the Court’s procedural test for the in ‘accordance with the law’ requirement of Article 8. While the dissenters may be content with the Court’s proceduralist approach, their dissent highlights that not every case is a nail that should be hit with that hammer.
Surveillance remains a persistent human rights problem in the twenty-first century, whether it takes the form of targeted surveillance, mass surveillance of electronic communications, or other forms of monitoring. In our view, the proceduralist approach adopted by the European Court of Human Rights is inadequate to address this problem. We recognise the fundamental evidentiary difficulty at stake. Individuals who suspect that they have been subjected to secret surveillance and, thereby, exposed to interference with their private or family life, home, correspondence or personal data – or to other human rights harms, such as discrimination or restrictions on freedom of expression – will often face insurmountable obstacles in proving that the surveillance took place and produced such effects. But this difficulty cannot justify treating an in abstracto review of a long list of complementary procedural safeguards as a substitute for a full human rights compliance assessment. None of the procedural safeguards, considered in isolation or even in combination, can guarantee substantive respect for human rights. Unavoidably, the Court’s proceduralist review risks becoming a box-ticking exercise where the role of the ECtHR will be limited by the same barriers of secrecy and deference that hamper access to justice at a domestic level.
As a consequence of this trend, the Court will ultimately be addressing the infamous ‘question of trust’ where it decides to trust in the adequacy of the safeguards in some countries and to find Article 8 violations in some others. Already, the fact that not all countries are treated in the same way was described to one of us by an ECtHR judge as an ‘evidentiary, methodological reality’, explaining that surveillance regimes such as that of the United Kingdom have been repeatedly tested by the Court, whereas a regime coming before it for the first time requires more thorough scrutiny. In other words, previous scrutiny may itself generate a degree of (mis-)trust in the adequacy of a state’s safeguards, as the case law on surveillance exemplifies. While its scrutiny of Western states’ surveillance regimes has become minimal (see, in particular, Big Brother Watch v. The United Kingdom; Centrum för rättvisa v. Sweden), in cases against other states, the Court is keen to examine specific arrangements with ‘particular attention’ due to their being ‘particularly prone to abuse’ (Roman Zhakarov v. Russia, paras 271 and 270; Podchasov v. Russia, para 73) and to apply a ‘strict necessity’ test (Szabo and Vissy v. Hungary, para 73). It then, selectively, is also more insistent that procedural safeguards should operate in practice (Roman Zhakarov, para 263; Ekimdzhiev, para 419) and requires the government to ‘illustrate the practical effectiveness of the supervision arrangements with appropriate examples’ (Szabo and Vissy, para 88), thus showing some healthy (if selective) distrust towards respondent states’ claims.
Worse than the risk of double standards is the fact that the proceduralist approach does not do justice to the applicants, even where the Court concludes that there was a breach of Article 8. The human rights harms that they suffered are not addressed; the applicants are not necessarily awarded remedies that are effective and dissuasive; and they may even be left to bear their legal costs. In Kanev, moreover, the Court went further in reducing the scope of its in abstracto assessment of the Bulgarian surveillance regime than it had in Ekimdzhiev. There, the Court had expressly stated that failure to meet the ‘quality of law’ requirement meant that the regime was incapable of keeping the interference with human rights to what was ‘necessary in a democratic society’. No such inference was drawn in Kanev.
As we have argued in the paper mentioned in the introduction, double standards can be avoided, and justice can be delivered to victims of human rights violations resulting from surveillance, if the Court does not confine its assessment to a checklist of procedural safeguards in domestic law. Instead, the Court should undertake a full assessment of human rights compliance. This should address the legitimate aim pursued through surveillance; what benefit towards achieving that aim was, or could have been, obtained through surveillance; what human rights harms resulted, or may have resulted, from the surveillance; whether those harms were necessary to achieve the legitimate aim and proportionate in comparison with the benefit obtained; and, finally, whether the surveillance respected the essence of Article 8 or other human rights engaged, leaving that essence unaffected. Contrary to the Court’s current practice, we believe that these questions require separate assessment, even where the ‘quality of law’ requirement is not met. They should also be addressed in cases where the Court has to draw inferences because of the evidentiary problems resulting from the secrecy surrounding surveillance.
The 2024 judgment in Podchasov v. Russia offers some grounds for cautious optimism in this respect. Rather than confining its assessment to the procedural requirements of the ‘in accordance with the law’ test (which already allowed it to find a violation, as para 75 clearly states), the Court also examined the substantive provisions of the Russian legislation on surveillance from a necessity and proportionality perspective and concluded that, ‘in so far as this legislation permits the public authorities to have access, on a generalised basis and without sufficient safeguards, to the content of electronic communications’, the regime impaired the ‘very essence’ of the right to respect for private life (para 80). In doing so, the Court reaffirmed that Article 8 contains an inviolable essential core and treated the protection of that core as a substantive limit on surveillance. Podchasov therefore provides an example of the Court returning to the foundational concepts of international human rights law that have been displaced by its increasingly proceduralist approach to surveillance. It also suggests that a structured assessment of the permissibility of surveillance remains possible, with the legal basis and the inviolability of the essence of the right operating as threshold requirements and proportionality, where applicable, requiring an assessment of the benefit towards the legitimate aim against the resulting human rights harm.
Kanev is a puzzling addition to the Court’s surveillance case law. On the one hand, the Court once again found that Bulgaria’s surveillance framework fails to comply with Article 8. On the other, it did so through an in abstracto procedural assessment that left largely untouched the substantive questions that should ultimately determine whether an interference with human rights is permissible.
The alternative to in abstracto review is not to ignore the evidentiary difficulties created by secret surveillance, but to recognise that these difficulties make a substantive human rights assessment more, rather than less, important. Instead of allowing secrecy to turn Article 8 into a procedural checklist, the Court should assess the legitimate aim pursued, the benefit that surveillance provides towards that aim, the human rights harms that it causes or risks causing, and whether those harms are necessary and proportionate. It should also ask, as a threshold matter, whether the essence of the right has been left untouched.
Podchasov demonstrates that this remains possible. The Court’s recognition of an inviolable essential core of Article 8, and its refusal to limit the assessment to the procedural requirements of legality, provide a basis for a return to the foundational grammar of international human rights law. Kanev, by contrast, shows how far the Court can still retreat into proceduralism. Whether Podchasov will prove to be the beginning of a more principled approach to surveillance, or an exception to an otherwise entrenched methodology, remains to be seen.
Ulysses managed to sail the strait between Scylla and Charybdis tied to the mast, but only because the strait was short. The human rights harms of surveillance are here to stay. Navigating that sea requires a map, a compass and hands on the helm.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The blog is run as an inter-university collaboration amongst the Dutch-language universities of Belgium. Associated research groups are the Human Rights Centre at Ghent University, the Centre for Government and Law at Hasselt University, the Leuven Centre for Public Law at KU Leuven, the Law and Development Research Group at the University of Antwerp and the Vakgroep Publiekrecht at the Vrije Universiteit Brussel.
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