FIFTH SECTION

CASE OF ALEKSANDAR SABEV v. BULGARIA

(Application no. 43503/08)

JUDGMENT

STRASBOURG

19 July 2018

FINAL

19/10/2018

This judgment became final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision .

In the case of Aleksandar Sabev v. Bulgaria,

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

Angelika Nußberger , President, Erik Møse , André Potocki , Yonko Grozev , Síofra O ’ Leary, Gabriele Kucsko-Stadlmayer , Lәtif Hüseynov , judges, and Claudia Westerdiek, Section Registrar ,

Having deliberated in private on 26 June 2018 ,

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

PROCEDURE

1 . The case originated in an application (no. 43503/08) 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, Mr Aleksandar Asenov Sabev (“the applicant”), on 3 September 2008.

2 . The applicant was represented by Ms G.P. Petkova , a lawyer practising in Sofia. The Bulgarian Government (“the Government”) wer e represented by their Agent, M s A. Panova , Ministry of Justice .

3 . The applicant alleged, in particular, that his right to a tribunal guaranteed by Article 6 § 1 of the Convention had been violated on account of the fact that the courts which had examined his appeal against his dismissal had not had been sufficiently competent to hear and determine the case before them, which, in his view, had prevented them from assessing all the decisive issues for the outcome of the case .

4 . On 4 January 2017 the Government were given notice of the application .

THE FACTS

5 . The applicant was born in 1967 and lives in Sofia.

6 . At the material time the applicant was an army officer holding the rank of major who had been working for the Military Intelligence Service for several years.

7 . On 27 May 2005 the applicant ’ s security clearance to access classified information at the national level was withdrawn, of which fact he was duly notified . The order merely mentioned the legal provision on which the measure had been base d , that is, section 59 ( 1 ) ( 2 ) of the Law on the protection of classified information .

8 . On the same date the applic ant lodged an administrative appeal against that decision with the S tat e Commission on I nformation Security ( “ the S tat e Commission ” ) , asserting that he had not infringed the aforementioned legal provision .

9 . By letter of 22 July 2005 the S tat e Commission informed the applic ant that his appeal had been examined and dismissed on 15 July 2005. The letter gave no details c on cerning the Commission ’ s deliberations or its reasoning .

10 . On 8 August 2005 the applic ant was relieved of his duties in the Military Intelligence Service , and on 30 September 2005 he was transferred to the Intelligence Unit at the Army Headquarters .

11 . By letter of 29 August 2006 the S tat e Commission informed the Head of the Intelligence Unit at the A rmy Headquarters that on 22 August 2006 it had cancelled the applicant ’ s clearance to access classified information from NAT O , and that he also no longer had clearance to access classified information a t the national level . It stated that the applicant ’ s transfer to the Intelligence Unit had consequently been contrary to section 59 ( 6 ) of the Law on the protection of classified information . The letter gave no details c on cerning the State Commission ’ s deliberations or its reasoning .

12 . On 30 August 2006 the applic ant took cognisance of that letter .

13 . On 11 September 2006 the Head of the Intelligence Unit contact ed the C ommission on the S tatus of O fficers in the A rmy Headquarters , which met that same day and found that the applic ant failed to satisfy the legal conditions for his post on account of the cancellation of the two aforementioned security clearances to access classified information . It proposed terminating his employment contract after the expir y of six months ’ notice .

14 . On 12 September 2006 the applic ant took cognisance of that letter.

15 . Between September and December 2006 the applic ant applied to several State bodie s in an attempt to discover the precise reason for the cancellation of his clearances. The State Commission replied that it could not supply that information and that it would not reconsider its decision . Th e Defence Minister informed him that his complaint was ill- founded , and the National Assembly told him that the issue lay outside its jurisdiction .

16 . By ord er of 23 March 2007 the Defence Minister terminated the applic ant ’ s contract f or failure to satisfy the legal conditions for his post . The applicant was given noti ce of that decision on 12 April 2007.

17 . On 23 April 2007 the applic ant appealed against the order for his dismissal before the Supreme Administrative Court ( “ CAS ” ) , complaining of the lack of reasoning of the ord er , as well as several procedural errors . He complained , in particular , that the order had failed to mention any fact justifying his dismissal.

18 . By judgment of 19 November 2007 a three- judge trial bench of the CAS dismissed the applic ant ’ s appeal . That judgment stated that the impugned ord er had been sufficiently reasoned, in particular in relation to the other documents in the file ; i t had been established that the applicant ’ s clearances to access classified information had been withdrawn, as confirmed by the State Commission; pursuant to the legislative provisions in force , no reasons had to be given for the withdrawal of such clearance, and the relevant order was not subject to judicial review ; the withdrawal of the clearances meant that the applic ant could no longer hold a post e ntailing access to classified information for three years ; in ord ering his dismissal, the Defence Minister had been bound by the fact s found by the S tat e Commission . Moreover, the CAS trial bench found no evidence of any procedural error .

19 . The applic ant lodged an appeal on points of law with a five-judge bench of the CAS. He repeated his plea that his dismissal had been unlawful and unreasoned . He alleged that he had not committed any offence and had never been informed of the precise reason for the withdrawal of his clearances to access classified information . He invited the CAS to ord e r the military authorities to supply him with the documents that had been used in evidence in the procedure for the withdrawal of the clearances in question.

20 . By judgment of 6 March 2008 a five-judge bench of the CAS upheld the lower court ’ s decision . The CAS bench held, in particular , that the applicant ’ s dismissal had been justified by the State Commission ’ s withdrawal of the applicant ’ s clearances . It pointed out that the withdrawal itself did not have to be reasoned and was not subject to judicial re view . It considered that that the Defence Minister therefore had been required to comply with the decision of the specialist administrative authorities and to order tale applic ant ’ s dismissal , which he had done. It added that the applic ant had taken cognisance of the circumstances justifying his dismissal on 30 August 2006, when he had been informed of the Stat e Commission ’ s decision to withdraw his security clearances to access classified information .

A. Access to classified information

21 . The Law on the protection of classified information governs the protection and sto r age of an access to classified information . The State Commission is the authority responsible for applying that L aw . The Commission is made up of five members elected for a five-year term by the Council of Ministers , as propos ed by the Prime Minister .

22 . Access is only possible to classified information if the person concerned has been given security clearance ( sections 36 and 38 of the Law ).

23 . Pursuant to section 59 ( 1 ) ( 2 ) of the Law, clearance to access classified information must be withdrawn if the person concerned has infringed the Law or any instruments en acte d for its application , to the actual or potential detriment of the interests of the Stat e and the authorities having access to the classified information . Pursuant to section 59 (3), no reasons must be given for decisions to withdraw security clearance. P erson s from whom clearance has been withdrawn are debarred from holding a post enabling them to access classified information for three years following the withdrawal ( section 59 ( 6) ) .

24 . Clearance withdrawal may be contested before the State Commission ( section 62 of the Law ). Under section 68 of the Law as worded prior to 2016, the C ommission ’ s decision was final .

25 . On 13 September 2016 section 68 of the Law was amen de d. It now allows the persons concerned to contest the Stat e Commission ’ s decision before the CAS.

B. Dismissal of regular members of the armed forces

26 . Pursuant to section 128b ( 1 ) ( 1 ) of the 1995 Law on defence and the armed forces , which has now been revoked, the Defence Minister could dismiss a regular member of the armed forces i f he or she failed to satisfy the conditions f or the post in question . Dismissal ord ers issued by the Minister could be contested before the CAS ( section 132 of the same Law ).

27 . Under Regulation 199 ( 1 ) ( 2 ) of the Regulations on regular service in the armed forces as in force at the material time , a serviceman failed to satisfy the conditions f or his post if he lacked access to classified information .

THE LAW

28 . The applicant complained of a violation of his right of access to a tribunal with full jurisdiction to determine the civil dispute to which he was a party . He relied, in that regard, on A rticle 6 § 1 of the Convention, the relevant part s of which read as follows :

“ In the determination of his civil rights and obligations ... , everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law . ”

1. The parties ’ submissions

29 . The Government contested the admissibility of the applicant ’ s complaint on two counts. First of all, with reference to the decision in the case of Danawar and Others v. Bulgaria ( dec. ), no. 25843/07, 20 January 2015, they raised an objection as to inadmissibility based on non- compliance with the six-month time-limit. They pointed out that the applicant ’ s dismissal had been based on the withdrawal by the State Commission of his clearances to access classified information and that that decision had been final. They exp lained that , consequently , the six- mo nth time-limit had started on the date of notification of the State Commission ’ s decision , that is to say 30 August 2006, and that the applic ant had lodged his application on 3 September 2008, two years later .

30 . In the alternative, the Government raised an objec tion regarding the applic ant ’ s lack of victim status . They argue d that pursuant to the domestic legislation in force at the material time, person s whose security clearance to access classified information had been withdrawn could not hold a post allowing them to access such information for three years following the withdrawal of their clearance. The Government pointed out that in the applic ant ’ s case , that three-year period had ended on 30 August 2009. They argued that the applic ant therefore had lost his status as victim of the violation of which he had complained on that date, with the lifting of the restriction on holding a post similar to the one which he had held at the time of his dismissal .

31 . The applicant submitted that the six-month time-limit for applying to the Court had begun on the date of the last decision given by the domestic courts concerning his dismissal, that is, on 6 March 2008. As the Court has affirmed in its recent judgment in the case of Miryana Petrova v . Bulgaria , n o. 57148/08 , § 32, 21 July 2016, the applic ant argue d that the issue at stake in his case had not been his right to access classified information but rather his right to hold a civil service post , which had been infringed by the withdrawal of his security clearances . He considered that his dismissal had been the subject of proceedings conducted by courts which had not held full jurisdiction to determine the lawfulness of that dismissal, and that the six- mo nth time-limit had actually started running at the end of those proceedings .

32 . Th e applic ant argued that his application was not manifest ly ill- founded and that it satisf ied all the other admissibility conditions set out in A rticle 35 § 2 of the Convention.

2. The Court ’ s assessment

33 . The Court considers that it should first of all examine the Government ’ s objec tion concerning the applic ant ’ s loss of victim status , to the effect that after the expir y of the maximum period of prohibi tion of holding a post necessitating access to classified information , the applic ant had no longer been affected by the alleged violation of the Convention ( see paragraph 30 above ).

34 . The Court, however, r eiterates that the subject matter of the present case is the limited scope of the examination conducted by the domestic courts in the framework of a dismissal procedure , and not the lawfulness and necessity of the dismissal itself , which falls within the jurisdiction of the domestic courts . Consequently , the fact that the applic ant is no longer prevented from applying for a post involving access to classified information has not deprived him of his status as a victim of a violation of A rticle 6 § 1 of the Convention. The Government ’ s objection must therefore be rejected .

35 . Th e Government also raised an objec tion as to inadmissibility regarding non- compliance with the six- mo nth time- limit . They consider ed that the starting point for that time-limit had been the date of notification of the State Commission ’ s decision , with which no further appeal lay , confirming the withdrawal of the applic ant ’ s clearance to access classified information , to wit 30 August 2006 ( see paragraph 29 above ). Th e applic ant contested the Government ’ s position by arguing that that time-limit only started running on the date of the courts ’ final decision in the framework of the proceedings aimed at challenging his dismissal ( see paragraph 31 above ).

36 . The Court considers that in the particular circumstances of the present case, the parties ’ arguments on this matter are so closely linked with the substance of the applic ant ’ s complaint under A rticle 6 § 1 of the Convention, that is to say the allegation that the courts lacked jurisdiction to determine all the decisive points for the outcome of the proceedings against the applicant ’ s dismissal, that this objec tion as to inadmissibility should be joined to the merits of the case .

37 . The Court notes that the applicant ’ s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

1. The parties ’ submission

(a) The applicant

38 . The applicant submitted that the dispute between his employer and himself concerned the determination of a civil right, that is to say his right to continue to hold a civil service post in the Intelligence Unit at the A rm y Headquarters . He exp lained that under domestic law he was allowed to contest the lawfulness of his dismissal from the post in question, which he had done. He stated that, as a consequence , in accordance with the criteria laid down by the Court in its judgment in the case of Vilho Eskelinen and Others v . Finland [GC], n o. 63235/00, § 62, E CH R 2007 ‑ II, the guarantees laid down under the civil limb of A rticle 6 § 1 of the Convention were applicable in the framework of the judicial proceedings against his dismissal .

39 . The applic ant submitted that the administrative court s which had examined his case had not considered all the issues which he deemed relevant . He alleged, in particular, that they had refused to assess the validity of the factual circumstances which had been used as a pretext to withdraw his clearance s to access classified information . He considered the latter as a fundamental issue for the outcome of the dispute, because, in his view, he had been dismissed essentially as a result of the withdrawal of the clearances . The applicant added that the domestic courts had merely referred to the specialist commission ’ s decision on the matter without considering the validity of the grounds used by that commission, which grounds the applicant argued had never been communicated to him.

40 . Th e applic ant alleged that the clearance withdrawal procedure before the specialist commission had not provided for the guarantees required by A rticle 6 of the Convention because it was a procedure conducted by an administrative body which was neither independent nor impartial.

41 . He submitted that under those circumstances , the domestic courts ’ refusal to consid er a question which was essential to the outcome of the case had deprived him of the right of access to a tribunal with full jurisdiction to determine his right to employment .

( b) Th e Government

42 . Th e Government co ntested the applic ant ’ s arguments and invite d the Court to find that in the present case there had been no violation of A rticle 6 § 1 of the Convention. They stated from the outset that the right to a tribunal as secured under that provision was not absolu te but could be made subject to restrictions pursuing a legitimate aim and respecting a fair balance of proportionality between the means used and the aim sought to be achieved .

43 . Th e Government submitted that in the present case the dispute concerning the determination of the applic ant ’ s civil rights had been dealt with by a tribunal which had been established by law, which was competent , independent and impartial, and which adjudicated in the framework of fair proceedings .

44 . They pointed out that the applicant ’ s clearances to access classified information had been withdrawn from him pursuant to section 59 ( 1 ) of the Law on access to classified information . That decision had not been reasoned and was not subject to judicial re view . That legislative approach had been based on the need to protect national security and the interests of the S tat e .

45 . Th e Government exp lained that on taking note of the clearance withdrawals in question , and in accordance with section 128b of the Law on defence and the armed forces and Regulation 199 of the regulations on regular service in the armed forces , the Defence Minister had decided to dismiss the applic ant on the grounds that he failed to satisfy the requisite conditions for holding his post . They added that the domestic procedure for such dismissal had been observed and that the applic ant had been informed of the reasons for his dismissal .

46 . Th e Government argue d that the applic ant had availed himself of his right of access to a tribunal by contesting his dismissal before the relevant administrative court s. The latter had conducted a full, in-depth assessment of the lawfulness of the dismissal, and had established all the factual circumstances relevant to the outcome of the dispute, in particular the withdrawal of the applicant ’ s clearances to access classified information. The Government added that the clearances had actually been withdrawn by a specialist body , the S tat e Commission , whose decisions were binding on the Minister . In that connection, they explained that Article 6 § 1 of the Convention did not prevent the domestic courts from referring, in their decisions, to the findings of experts where necessitated by the specific nature of the issues submitted to them.

47 . The Government pointed out that on the basis of the evidence gathered, the domestic courts had reached the conclusion that the applic ant ’ s dismissal had been in conformity with domestic legislation and that those courts had given full reasons for their decisions . The applic ant had therefore had access to a tribunal with competence to examine all the issue s relevant to the outcome of the dispute .

48 . Th e Government submitted that the circumstances of the present case differed from those in the cases of Fazliyski v . Bulgaria (n o. 40908/05 , 16 April 2013) and Miryana Petrova v . Bulgaria (n o. 57148/08 , 21 July 2016), in which the Court had found a violation of A rticle 6 § 1 of the Convention. They alleged that the applic ant h a d participated actively in the impugned proceedings and had taken cognisance of the reasons for his dismissal. They argued that in the instant case there had been a reasonable relationship of proportionality between the restriction on the jurisdiction of the domestic courts and the need to protect national security , which was in keeping with A rticle 6 § 1 of the Convention. Furthermore, ever since 2016, decisions to withdraw clearance to access classified information had been subject to judicial re view before the administrative court s.

2. The Court ’ s assessment

(a) General principles

49 . In Vilho Eskelinen and Others v . Finland [GC], n o. 63235/00, § 62, E CH R 2007 ‑ II the Court held that in principle, ordinary labour disputes involving civil servants fall within the scope of A rticle 6 § 1 of the Convention, under its civil head . It stipulated that there would be a presumption that Article 6 applied, and laid down two conditions for the respondent S tat e to be able to rely before it on an applicant ’ s civil servant status in order to exclude him or her from the protection afforded under Article 6 : the State in its national law must have expressly excluded access to a court for the post or category of staff in question, and that exclusion must be justified on objective grounds in the State ’ s interest (ibid . ).

50 . The Court r eiterates that everyone has the right to have any claim relating to his “civil rights and obligations” brought before a court or tribunal . Thus A rticle 6 § 1 of the Convention embodies the “right to a court”, of which the “ right of access ” , that is the right to institute proceedings before courts in civil matters, constitutes one aspect ( see Golder v . the Uni ted Kingdom , 21 February 1975, § 36, Series A n o. 18).

51 . A rticle 6 § 1 of the Convention requires, in principle , the “ tribunal ” in question to have jurisdiction to examine all questions of fact and law relevant to the dispute before it ( see Terra Woningen B.V. v . the Netherlands , 17 December 1996, § 52, Re ports of Judgments and Decisions 1996 ‑ VI). This means, in particular, that the court must have the power to examine point by point each of the litigant ’ s grounds on the merits, without refusing to examine any of them, and give clear reasons for their rejection . As to the facts, the court must be able to examine those that are central to the litigant ’ s case ( see Bryan v . the Uni ted Kingdom , 22 November 1995, §§ 44-45, Series A n o. 335 ‑ A).

(b) Application of those principles in the present case

52 . The Court observe s from the outset that the issue at stake for the applic ant in the present case was not his right of access to State secrets, which is not guaranteed by the Convention ( see Regner v . the Czech Republic [GC], n o. 35289/11, § 109, E CH R 2017 ( extracts ) ) , but his right to hold a civil service post , which had been affected by the withdrawal of his security clearances to access classified information . Domestic law permitted the applic ant to contest his dismissal from the post which he had held in the Intelligence Unit at the A rmy Headquarters ( see paragraph 26 in fine above ), and the Government did not dispute the applicability of A rticle 6 § 1 of the Convention to the procedure for contest ing the applic ant ’ s dismissal . Having regard to the particular circumstances of the present case and in accordance with the criteria established in its case-law ( see paragraph 49 above ), the Court considers that the dispute in question concerned the determination of a “ civil right ” within the meaning of A rticle 6 § 1 of the Convention and that that provision, under its civil head , is therefore applicable to the judicial proceedings for contesting the applic ant ’ s dismissal .

53 . The Court must emphasise that it was after the end of those judicial proceedings and within a period of no longer than six month s that the applic ant lodged his application with it ( see paragraphs 1 and 20 above ). I t must therefore reject the objec tion as to non- compliance with the six- mo nth time- limit raised by the Government and join e d to the merits of the complaint under A rticle 6 § 1 of the Convention ( see paragraph 36 above ).

54 . The Court must then determine whether the dispute in question was assessed by a tribunal competent to deal with all the relevant factual and legal issues .

56 . I t follows that the lawfulness of the applic ant ’ s dismissal depended entirely on the answer to the question whether the withdrawal of his clearance to access classified information had been justified ( see Ternovskis v . Latvia , n o. 33637/02, § 44, 29 April 2014 , and Miryana Petrova , cited above , § 31). That question had been examined by the State Commission , which had dismissed the applic ant ’ s appeal ( see paragraph 9 above ). However, the Court considers that that procedure had not provided the guarantees set out in A rticle 6 § 1 of the Convention : the State Commission was not a body independent from the executive , given that its members were elected by the Council of Ministers at the propos al of the Prime Minister ( see paragraph 21 above ); the Commission had at no stage informed the applic ant of the reasons for the withdrawal of his clearances ( see paragraphs 9 and 11 above ) , and it had taken its decision on 22 August 2006 without the applicant ’ s knowledge ( see paragraph 11 above ).

57 . The Court notes that the applic ant contested his dismissal before the CAS , alleging , in particular , that the withdrawal of his security clearances had been incompatible with domestic legislation , that he had committed no offence justifying the withdrawal of his clearance to access classified information and that he had never been informed of the reasons for the withdrawal . It cannot be overlooked that at no stage in the proceedings before the two different trial benches di d the Supreme A dministrative Court consider the question whether the withdrawal of the security clearances had been justified by the fact that the applicant had commi tted an offence . It merely referred to the State Commission ’ s decision , emphasising that the latter had not been reasoned and that it was not subject to any legal remedy ( see paragraphs 18 and 20 above ). The Court considers that this renders the applicant ’ s situation similar to that of the applic ants in the cases of Myriana Petrova ( cited above , §§ 40-44) and Tinnelly & Sons Ltd and Ohers and McElduff and Others v . the Uni ted Kingdom , 10 July 1998, §§ 76-79, Re ports of Judgments and Decisions 1998 ‑ IV, in which it found a violation of A rticle 6 § 1 on account of the refusal by the domestic courts to examine issues which were vital to the outcome of the disputes between the applic ants and the administrati ve authorities , which refusal had been based on the fact that those questions had been determined in advance by the administrative authorities in such a way as to force the courts to accept their factual finding s.

59 . In the light of the foregoing considerations, the Court considers that the dispute concerning the applic ant ’ s dismissal was not examined by a tribunal with “ full jurisdiction” to assess all the relevant factual and legal circumstances of the case. There has accordingly been a violation of Article 6 § 1 of the Convention under its civil head .

60 . Article 41 of the Convention provides:

“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.”

61 . The applicant claimed 50, 000 euros (EUR) in respect of non-pecuniary damage .

62 . Th e Government submitted that that sum was excessive and unjustified .

63 . The Court considers that the applic ant su stained non-pecuniary damage on account of the violation of his right secured under A rticle 6 § 1 of the Convention. It considers it appropriate to award him EUR 2 , 400 under this head .

64 . The applicant also claimed EUR 2,000 in respect o f the costs and expenses incurred before the Court , to be transferred directly into his lawyer ’ s bank account .

65 . The Government contested that claim.

66 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers the claim reasonable and award s it to the applicant. It also acc edes to the latter ’ s request to pay the sum direct ly into the bank account of his lawyer, Ms Petkova .

67 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(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, the following amounts, to be converted into Bulgarian levs, at the rate applicable at the date of settlement:

i . EUR 2 , 400 ( two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage ;

ii. EUR 2 , 000 ( two thousand euros), plus any tax that may be chargeable to the applicant , in respect of costs and expenses , to be paid direct ly into the bank account of his legal representative , M s Petkova ;

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

Done in French , and notified in writing on 19 July 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Claudia Westerdiek Angelika Nußberger Registrar President