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PETROVA v. BULGARIA

Doc ref: 57148/08 • ECHR ID: 001-157671

Document date: September 7, 2015

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PETROVA v. BULGARIA

Doc ref: 57148/08 • ECHR ID: 001-157671

Document date: September 7, 2015

Cited paragraphs only

Communicated on 7 September 2015

FOURTH SECTION

Application no. 57148/08 Miryana Georgieva PETROVA against Bulgaria lodged on 31 October 2008

STATEMENT OF FACTS

The applicant, Ms Miryana Georgieva Petrova , is a Bulgarian national who was born in 1950 and lives in Sofia. She is represented before the Court by Ms S. Stefanova and Mr M. Ekimdzhiev , lawyers practising in Plovdiv.

A. The circumstances of the case

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

The applicant had been employed by the National Security Service as a system operator from 1981. She submits that, with respect of the nature of her duties, she held a security clearance permit ting her access to classified information constituting State secrets.

On 30 April 2002 the Classified Information Protection Act was promulgated in State Gazette, which stipulated that the access to classified information permits issued under the provisions existing before the entry into force of this A ct sh ould continue to be valid until the replacement thereof with clearances for access. The heads of organizational units, employing persons who possess ed an access permit and whose positions require d access to classified information, sh ould request the issuance of security clearances for access in accordance with the requirements of the A ct. Non-comp liance with that provision should result in the invalidation of the existing access permits.

O n 3 June 2003 , in compliance with that obligation, the director of the National Security Service issued a decision refusing the applicant clearance for access to classified information. The applicant submits that that decision was grounded on a psychological test. The decision did not contain any reasoning for the refusal apart from a reference to Section 57 of the Classified Information Protection Act.

T he applicant appealed against the refusal before the State Commission of Information Security. The latter, with its decision of 5 February 2004 , upheld the refusal. That decision was final and not amenable to judicial review.

On 27 April 2004 the head of the National Security Service made an order to dismiss the applicant forthwith. The reason given for the termination of her employment was the refusal of the security clearance, the possession of which was an indispensable condition for performing her duties.

The applicant challenged her dismissal before three levels of courts of general jurisdiction. She contested the objectivity and the lawfulness of the dismissal procedure on account of the negative personal relations she had with her direct supervisor. In the applicant ’ s view, the clearance had probably been refused because she had suffered from depressive neurosis in 1995, a condition which according to her was no longer relevant. The applicant ’ s request for commissioning a psychiatric expert ’ s report was denied by the Sofia District Court.

In a judgment of 11 May 2005 the Sofia District Court rejected the applicant ’ s claim, reasoning that the refusal of the head of the National Security Service to grant a security clearance to the applicant was valid and it entirely predicated the applicant ’ s dismissal, because she was further unable to perform her duties.

On appeal, the Sofia City Court with its judgment of 6 April 2006 upheld the lower court ’ s decision, endorsing its reasoning.

The Supreme Court of Cassation with a final judgment of 19 June 2008 upheld the judgment.

B. Relevant domestic law

1. The Constitution of the Republic of Bulgaria of 1991

Article 12 0

“1. The courts shall review the lawfulness of the administration ’ s acts and decisions.

2. Natural and legal persons shall have the right to seek judicial review of any administrative act or decision which affects them, save as expressly specified by statute.”

2. The Classified Information Protection Act of 2002

Section 40 § 1 of this Act provides that i n no circumstance other than the ones foreseen under Article 39 - a ccess to classified information in connection with the performance of official duties, shall a clearance for access to classified information be issued to any person, unless he /she meets the following requirements: a) to be a Bulgarian citizen ; b) to be of legal age; c) to have completed secondary education; d) not to have been convicted of premeditated felony, notwithstanding subsequent rehabilitation; e) not to be the subject of any pre-trial or trial proceeding for premeditated felony; f) to be reliable for the purposes of security; g) not to be suffering from any mental d isorder, duly certified; and h) to be considered reliable for the purpose of protecting a secret.

Section 57 § 1 stipulates that c learance for access to classified information shall be denied where it is established, in the course of a security check, that the person does not meet any one of the requirements under Section 40 § 1.

In accordance with Section 57 §§ 3 and 5 t he refusal of clearance shall not be accompanied with an explanation of reasons and shall only set out the legal reasons thereof. The refusal of access to classified information shall not be appealable before courts of law.

By virtue of § 10 of the Transitional and final provisions of the Act, t he access permits issued in pursuance of the provisions existing before the entry into force of this Act shall continue to be valid until the replacement thereof with clearances for access. The heads of organisational units, employing persons who possess an access permit and whose positions or special assignments require access the classified information, shall request the issuance of clearances for access in accordance with the requirements of this Act and within three months from its entry into force. Non-compliance with this provision shall result in the invalidation of the existing access permits.

COMPLAINTS

1. The applicant complain s , under Article 6 § 1 of the Convention, of the impossibility to effectively challenge the refusal to be granted security clearance for access to State secrets on the basis of which her employment contract with the National Security Service was terminated . She allege s that, as a result, her access to a court was denied .

2 . The applicant complain s under Article 13 of the Convention that she did not have effective remedies against the violations alleged above.

QUESTIONS TO THE PARTIES

1. Did the applicant have access to a court, as required by Article 6 § 1 of the Convention , in view of the fact that in the proceedings concerning her dismissal the domestic courts left out of their scope of judicial review the grounds underlying the refusal of the security clearance of the applicant?

Was there a reasonable relationship of proportionality between the legitimate aim of protecting national security and the applicant ’ s individual right of access to a court?

2 . Did the applicant have at her disposal effective domestic remedies for her complaints under Article 6 § 1 of the Convention, as required by Article 13 of the Convention?

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