Information Note on the Court’s case-law 213

December 2017

Anchev v. Bulgaria (dec.) - 38334/08 and 68242/16

Decision 5.12.2017 [Section V]

Article 8

Article 8-1

Respect for private life

Public exposure of holders of public office as collaborators of communist regime on basis of former security-service records: inadmissible

Facts – By virtue of the Access to and Disclosure of Documents and Exposure of the Affil iation of Bulgarian Citizens to State Security and the Intelligence Services of the Bulgarian People’s Army Act 2006, as amended (“2006 Act”), anyone holding specified “public office” or engaging in a specified “public activity” at any point since 10 Novem ber 1989 – the date on which the communist regime in Bulgaria was deemed to have fallen – must be checked for affiliation with the former security services and exposed if found to have been so affiliated. The checks are carried out and exposure is made by a Commission on the basis of information contained in the former security services’ records. The Supreme Administrative Court, which has reviewed more than a hundred cases of exposure, has consistently held that the Commission does not have to check the ve racity of the information in the records, but must simply note it and make it public, having no discretion in the matter. The Commission’s task is limited to documentary fact-finding and its decisions are purely declaratory. This is because the 2006 Act do es not purport to sanction or lustrate staff members and collaborators of the former security services, but simply to reveal the available information about all publicly active people featuring in the records, with a view to restoring public confidence and preventing blackmail. In a decision of 26 March 2012 the Constitutional Court unanimously upheld the constitutionality of section 25(3) of the 2006 Act (which covers persons acceding to “public office” or engaging in “public activity” in the future).

The applicant was a lawyer who had occupied various positions in public office since the early 1990s, including in central government, with the Supreme Bar Council and at a bank. He was the subject of three investigations by the Commission in respect of each o f those positions and exposed as a collaborator on the basis of the former security services’ records.

Law – Article 8: The interference with the applicant’s private life had been in accordance with the law and pursued the legitimate aims of protecting nat ional security and public safety, preventing disorder, and protecting the rights and freedoms of others.

The answer to the question whether the interference was “necessary in a democratic society” did not turn on whether less intrusive rules could have be en put in place or whether the legitimate aims could have been attained in other ways but on whether, in adopting the exposure scheme, the Bulgarian authorities had acted within their margin of appreciation.

That margin was broad in the instant case both b ecause Contracting States which had emerged from undemocratic regimes had to be afforded a broad margin in choosing how to deal with the legacy of those regimes and because the 2006 Act had been passed by the legislature with cross-party support after much debate, and had been carefully reviewed by the Constitutional Court in line with the principles flowing from the European Court’s case-law and in full appreciation of the need to balance the conflicting interests at stake.

For the following reasons the chosen statutory scheme was not at the fringes of that margin.

(i) The only measure provided for was the exposure of those about whom a record of collaboration with the former security services was found; the Commission’s de cisions were purely declaratory. Exposure entailed no sanctions or legal disabilities and, as noted by the Constitutional Court, in Bulgaria it was not certain that it carried a universal social stigma either. For his part, the applicant had continued to b e involved in business and public life and could hardly claim to have become an outcast.

(ii) The legislation did not affect all staff members or collaborators of the former security services but only those who, since the fall of the regime, had taken up posts of some importance in the public sector or in parts of the private sector deemed to have special importance for society at large.

(iii) The process of exposure was tightly circumscribed and surrounded by a number of safeguards In terms of guarantees against arbitrariness or abuse (for example, the process of exposure was entrusted to a special independent commission whose decisions were amenable to public judicial review proceedings at two levels of jurisdiction).

(iv) The fact that a large number o f the files of the former security services were destroyed shortly after the fall of the regime had to be seen as a weighty reason for the legislature’s choice not to provide for an individual assessment of the reliability of the evidence available with re spect to each person featuring as a collaborator in the surviving records. The legislature chose to provide for the exposure of anyone found to feature in any of the surviving records even if there were no other documents showing that they had in fact coll aborated. As the Constitutional Court had noted, had the legislature opted for individual assessments, collaborators whose files had survived would unjustifiably have been treated less favourably.

Further, as a corollary to the lack of individual assessme nts, the chosen exposure scheme did not entail the moral censure attendant upon findings of collaboration under the lustration schemes put in place in some other States. Indeed, the domestic courts had made it clear that exposure by the Commission on the b asis of surviving records was not to be taken as official confirmation that those concerned had in fact collaborated. The Commission’s decisions were thus more a form of publication of the surviving records of the former security services rather than a way to express official opprobrium for the past conduct of the people exposed.

(v) The applicant had been able to access the records almost immediately and then to publicly contest their reliability by reference to concrete elements.

In sum, since exposure had not entailed any sanctions or legal disabilities, the interference had not exceeded the substantial margin of appreciation enjoyed by the Bulgarian authorities. Had they resorted to measures such as occupational disqualification or partial disenfranchisement, which entail a greater degree of intrusion into the personal sphere of those concerned, the conclusion might have been different.

Conclusion : inadmissible (manifestly ill-founded).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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