ECHR ruling of July 19, 2018 in the case of Aleksandar Sabev v. Bulgaria (application N 43503/08).
In 2008, the complainant was assisted in preparing a application. Subsequently, the application was communicated to Bulgaria.
A dismissal not considered by a court having full jurisdiction for this purpose is appealed in the case. The case was a violation of Article 6 of the Convention.
THE CIRCUMSTANCES OF THE CASE
The applicant, an intelligence officer of the General Staff of the Army, was dismissed after his permission to access classified information was withdrawn. His complaint against this decision was dismissed.
QUESTIONS OF LAW
Regarding compliance with paragraph 1 of Article 6 of the Convention. In this case, it was about the applicant's right to occupy a position in the public service, which was adversely affected by the withdrawal of the applicant's permission to access classified information. Under domestic law, the applicant could appeal against his dismissal. Thus, the relevant dispute concerned the definition of “civil law” within the meaning of paragraph 1 of Article 6 of the Convention, therefore this article of the Convention in its civil aspect applies to the judicial procedure for appealing the applicant’s dismissal.
The Minister of Defense was obliged to dismiss the applicant, since the applicant was no longer allowed to access classified information, which was a prerequisite for his duties in the structure of the General Staff of the Armed Forces.
The legality of the applicant's dismissal completely depended on the answer to the question of whether the withdrawal of the permission to the applicant's access to classified information was justified. The State Commission rejected the complaint. At the same time, this procedure was not accompanied by guarantees provided for by clause 1 of Article 6 of the Convention: the state commission was not an authority independent of the executive authority, since its members were elected by the Council of Ministers at the suggestion of the prime minister, the state commission did not inform the applicant about the reasons that led to the withdrawal of his permission, moreover, this decision was made without the knowledge of the applicant.
The applicant contested his dismissal in the Supreme Administrative Court of Bulgaria, arguing, in particular, that the revocation of his permits did not comply with the domestic legislation, that he did not commit any violation justifying the revocation of his permission to access classified information, and that he was not informed about The reasons for this review. However, at no stage of the proceedings in two different judicial structures, the highest administrative court in administrative cases did not consider whether the revocation of the permit was justified by the applicant’s violation. She simply referred to the decision of the state commission, noting that it was not motivated and was not subject to any appeal. For this reason, the situation of the applicant is similar to those considered in the cases of “Miryan Petrov v. Bulgaria” (Miryana Petrova v. Bulgaria) of July 21, 2016, complaint No. 57148/08, and Tinnelli & Suns Company and others. and Mackelduff et al. v. United Kingdom "(Tinnelly and Sons Ltd and Others v. McElduff and Others v. United Kingdom) of July 10, 1998. In these cases the European Court found a violation of Article 6 § 1 of the Convention in connection with the refusal that were key to deciding disputes between applicants and ministratsiey, refusal, which was based on the fact that these issues have been previously enabled by the administrator in order to make its factual conclusions binding on the courts.
However, the present case should be distinguished from the case of Regner v. The Czech Republic (Regner v. Czech Republic) of September 19, 2017, complaint No. 35289/11, in which the Grand Chamber of the European Court concluded that the guarantees of Article 6 of the Convention are applicable to the judicial procedure concerning the withdrawal of the permission of the security service for admission to secret information, which was crucial for the applicant to be able to fully perform his duties and for his ability to obtain a new position in the public service, and in which the procedure th followed by the domestic courts, accompanied by sufficient guarantees in accordance with paragraph 1 of Article 6 of the Convention. In particular, the Supreme Administrative Court of the Czech Republic had full jurisdiction to adjudicate the dispute between the applicant and the administration, unlike the Supreme Administrative Court of Bulgaria in the present case: the Supreme Administrative Court of the Czech Republic had access to all the secret case materials used to substantiate the decision administration. In addition, the Supreme Administrative Court of the Czech Republic could assess the validity of the failure to provide some secret documents and, if necessary, require their presentation. The competence of the Supreme Administrative Court of the Czech Republic was not limited to considering only the arguments put forward by the applicant, the court could consider whether there were circumstances justifying the withdrawal from the applicant of Regner of his permission to gain access to classified information.
The dispute related to the applicant's dismissal was not considered by a court having “full jurisdiction” to examine all the factual and legal circumstances of a civil nature relating to the present case.
In the case of a violation of the requirements of paragraph 1 of Article 6 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The European Court awarded the applicant EUR 2,400 in respect of non-pecuniary damage.