Published on 22 May 2023

THIRD SECTION

Application no. 31320/18 Annadurdy Karlievich Khadzhiev against Bulgaria lodged on 25 June 2018 communicated on 3 May 2023

SUBJECT MATTER OF THE CASE

The applicant, a Russian and Turkmen national, has been living in Bulgaria since 2001. He got married there in 2002 and has a daughter.

He fled Turkmenistan to avoid repressions related to his opposition activities there, and the Varna Regional Court on two occasions turned down requests by Turkmenistan for his extradition. In March 2004 he obtained humanitarian status in Bulgaria, and in September 2007 refugee status.

In July 2009 the applicant applied for Bulgarian citizenship. As required by law, before advising the Minister of Justice whether to propose to the (Vice-)President of the Republic to grant the application, the Citizenship Council attached to the Ministry of Justice sought the opinion of the State Agency for National Security. In its opinion, given in May 2012, the Agency stated that it opposed giving the applicant Bulgarian citizenship “for reasons related to national security”. It gave no explanation for its view. Rereferring to that opinion, in June 2012 the Citizenship Council advised the Minister to propose that the applicant’s naturalisation application be refused, and in August 2013 the Minister followed that advice.

In September 2012 the applicant asked the State Agency for National Security about the facts and evidence underlying its opinion. Having received no response, in January 2013 he reiterated his enquiry. Having again not received a response, in April 2013 he requested the Agency under section 28 of the Personal Data Protection Act 2002 [1] to (a) inform him whether it was processing his personal data, and, if so, what was the basis for that processing, and (b) provide him with his personal data which it was processing and any available information about the origin of that data. Having once again received no response, the applicant sought judicial review. The Sofia City Administrative Court dismissed his claim, but on appeal the Supreme Administrative Court overturned that judgment, allowed the claim, and referred the matter back to the Agency, on the basis that, in the absence of an express decision by it, there was no material warranting a conclusion that the data in issue had properly been withheld from the applicant (see реш. № 13080 от 04.11.2014 г. по адм. д. № 6237/2014 г., ВАС, V о. ).

In April or May 2015 the Agency expressly refused to provide such data to the applicant, saying that doing so would reveal its sources of information and the covert methods through which it was gathering information. The applicant again sought judicial review. The Varna Administrative Court dismissed his claim. He appealed on points of law, but on 4 January 2018 the Supreme Administrative Court upheld the lower court’s judgment, holding that only people with proper security clearance who needed that data for their concrete tasks were entitled to access it (see реш. № 94 от 04.01.2018 г. по адм. д. № 5244/2016 г., ВАС, V о. ).

The applicant complains under Article 8 of the Convention of the assertion of the State Agency for National Security, which the Agency did not back with any explanation or evidence, that he presents a national-security risk. He also complains under Article 13 of the Convention that he has no remedies enabling him to contest that assertion, in particular because the administrative courts took the Agency’s justification for refusing to disclose the data which lay beneath it at face value.

QUESTIONS TO THE PARTIES

1. Was the refusal to disclose to the applicant the data which the State Agency for National Security was storing about him and which had formed the basis for its opinion that he presented a national-security risk “in accordance with the law” and “necessary in a democratic society” to attain one or more of the aims in Article 8 § 2 of the Convention (compare Segerstedt-Wiberg and Others v. Sweden , no. 62332/00, §§ 99-104, ECHR 2006-VII; Dalea v. France (dec.), no. 964/07, 2 February 2010; Shimovolos v. Russia , no. 30194/09, §§ 69-70, 21 June 2011; and Catt v. the United Kingdom , no. 43514/15, §§ 94-128, 24 January 2019)?

2. Has there been a breach of Article 13 of the Convention? In particular, did the applicant have an effective remedy in respect of the refusal of the State Agency for National Security to disclose the data underlying its opinion that he presented a national-security risk (compare Segerstedt-Wiberg and Others , cited above, §§ 119-20)?

[1] . In February 2019 that provision was repealed, as part of a legislative package harmonising Bulgarian data-protection law with Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) and transposing Directive (EU) 2016/680 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data (Law Enforcement Directive).