Communicated on 2 June 2016

FIFTH SECTION

Application no. 12504/09 Ivan Hristov YONCHEV against Bulgaria lodged on 8 January 2009

STATEMENT OF FACTS

The applicant, Mr Ivan Hristov Yonchev , is a Bulgarian national, who was born in 1954 and lives in Sofia. He is represented before the Court by Mr A. Kashamov and Mr K. Terziyski , lawyers practising in Sofia.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant has worked as a police officer since 1977. However, in 2002 he had to retire from service, after psychologists of the Ministry of the Interior considered him to be mentally unfit for such a job.

Wishing to get acquainted with his personal file at the Ministry, in 2003 the applicant applied to have access to it.

An initial refusal to allow him access to the file, signed by the head of the Ministry of the Interior ’ s human resources department, was quashed on 30 July 2004 by the Supreme Administrative Court (“the SAC”), as it had not been ordered by the competent body, namely the Minister of the Interior.

On 31 January 2005 the Minister of the Interior issued a decision refusing the applicant access to his personal file, referring in general terms to the provisions of section 34 (3) of the Protection of Personal Data Act and section 182 (7) of the Ministry of the Interior Act, as in force at the time (see “Relevant domestic law” below).

Once again this refusal was quashed by the SAC, in a final judgment of 15 August 2006, on the ground that it was not reasoned, as it merely referred to the provisions restricting access to personal data, without explaining how they were relevant to the circumstances of the applicant ’ s case.

In a new decision dated 17 October 2006, the Minister of the Interior refused the applicant once again access to his personal file at the Ministry. He relied again on section 34 (3) of the Protection of Personal Data Act, as well as on section 161 of the Ministry of the Interior Act of 2006. He explained further that the officer ’ s personal files contained information on “the inquiries on a person applying to be employed” at the Ministry and information revealing the Ministry ’ s “structures, positions and functions”. He noted that the first category of information represented official secret ( служебна тайна ), but it was at the same time mentioned in the decision that, in accordance with an internal instruction of the Ministry, officers ’ personal files had to be considered to contain information which was state secret ( държавна тайна ). It was explained further that even though personal files also comprised documents which contained no sensitive information, due to the presence of some classified documents the files had to be classified in their entirety.

The applicant applied for judicial review. He explained the circumstances in which he had left the Ministry of the Interior and which had given rise to his interest in consulting his personal file. He argued that the Minister had not duly taken into account his right to access to information, that there was no legal ground to consider classified the information referred to in the decision, and that in any event, seeing that the applicant had left the Ministry in 2002 and that the relevant time-limits for keeping classified documents representing official secret had expired, any such documents in his file had had in the meantime to be declassified.

In a judgment of 25 March 2008 a three-member panel of the SAC dismissed the application for judicial review. It held that the Minister ’ s decision was well reasoned, and that the Minister had correctly stated that the information concerned was classified.

Upon appeal by the applicant, in a final judgment of 8 July 2008 the judgment above was upheld by a five-member panel of the SAC. It endorsed the three-member panel ’ s reasoning, adding that the declassification of documents could only occur after an express decision in that regard, despite the expiry of the relevant time-limits.

B. Relevant domestic law

1. Protection of Personal Data Act

That Act provides, in section 26, that each person should have access to personal date concerning him or her. An exception to that rule is contained in section 34 (3), which provides that such access can be entirely or partially denied when provided by other statute and when this “would endanger the defence or national security, or the protection of classified information”.

2. Ministry of the Interior Act

By section 182 (4) of that Act, in force until 2006, every person was entitled to seek access to personal data concerning him or her held by the Ministry of the Interior. By section 182 (7) such access could nevertheless be refused where this would, in particular, “endanger the national security or public order, the protection of information classified as State or official secret, the secrecy of sources of information or nonverbal methods and means for its collection”. Almost identical provisions were contained in section 161 of the new Ministry of the Interior Act, in force since 2006.

3. Protection of Classified Information Act

Section 25 of this Act defines “state secret” as “information set out in Schedule No. 1 [to the Act], the unregulated access to which could endanger or prejudice the interests of the Republic of Bulgaria and which relates to the national security, the defence , the foreign policy, or the protection of the constitutional order”. Schedule No. 1 to the Act sets out a list of the categories of information which are liable to be classified as being a state secret. Section 26 (1) defines an “official secret” as the “information created or stored by State or local government authorities, which is not a state secret, but the unregulated access to which could have a negative impact on the interests of the State or on another legally protected interest”.

Section 34 (1) of the Act lays down time ‑ limits for protecting classified information. They vary from thirty years for information marked as “highly secret” to six months (until 2007 – two years) for information graded as “official secret”. These time ‑ limits may be extended once. After their expiration the access to this information is effected in accordance with the Access to Public Information Act.

COMPLAINTS

The applicant complains under Article 8 of the Convention that he was denied access to his personal file at the Ministry of the Interior. He claims that he had doubts as to the correctness of the results of his psychological assessment and could have requested that any wrong data about him be corrected. He argues that the applicable law was phrased too broadly, that it was unclear whether the refusal to allow him access to his file pursued any legitimate aim, that the authorities did not duly take into account his interest in obtaining such access and did not balance it against any interest served by the refusal, and that no attempt was made to find a solution by allowing, for example, partial access to the information at issue.

The applicant also complains under Article 13 of the Convention in conjunction with Article 8, claiming in particular that it took the authorities many years to decide with finality on his request for access to personal data and that the courts did not assess the proportionality of the refusal.

QUESTIONS TO THE PARTIES

1. Did the refusal of the Minister of the Interior, upheld by the Supreme Administrative Court, to allow the applicant access to his personal file at the Ministry amount to an interference with the applicant ’ s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference lawful and otherwise in accordance with the terms of Article 8 § 2?

2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 8, as required by Article 13 of the Convention? In particular, can the procedure for access to information he initiated be seen as effective in the circumstances?