Published on 20 November 2023

THIRD SECTION

Applications nos. 43334/18 and 41920/19 Venislav Lyubenov TSANOV against Bulgaria and Teodosi Ivanov KOVACHEV against Bulgaria lodged on 31 August 2018 and 31 July 2019 respectively communicated on 31 October 2023

SUBJECT MATTER OF THE CASE

The applications concern the judicial review proceedings of the applicants’ dismissals, following decisions to withdraw/refuse to renew their security clearance for access to classified information which, under the applicable statutory provisions at the material time, were not amenable to judicial review. Having a security clearance was a prerequisite to hold the post for both applicants.

The applicant in application no. 43334/18 was appointed as Director General for Defence Infrastructure within the Ministry of Defence in February 2016. In April 2016 he was charged with committing a criminal offence in his official capacity. By a final administrative decision of 14 July 2016, the State Commission for Information Security (SCIS) withdrew the applicant’s security clearance for access to classified information on the grounds that he was subject to criminal proceedings, as well as that he was considered unreliable. The applicant was dismissed on 18 July 2016. In a final judgment of 1 March 2018, the Supreme Administrative Court (SAC) upheld the dismissal. The SAC found, in particular, that it could not examine the applicant’s arguments challenging the validity of the decision for withdrawing his access to classified information.

The applicant in application no. 41920/19 was employed as an expert at the State Agency for National Security (SANS). On 20 August 2015, that Agency refused to renew his security clearance to access to classified information on the ground of unreliability based on psychological assessment that the applicant was unsuitable for obtaining such a security clearance. The SCIS upheld that refusal with a final decision of 9 October 2015. On 10 December 2015, the SANS dismissed the applicant due to lack of security clearance. In a final judgment of 31 January 2019, the SAC confirmed the dismissal. That court did not scrutinise the psychological assessment of the applicant, observing that the psychologist was not bound to provide reasons for his conclusion.

Relying on Article 6 § 1 of the Convention the applicants complain that the proceedings concerning their dismissals were unfair and that the scope of judicial review carried out by the SAC was not full as far as that court refused to examine the lawfulness of the decisions depriving them of security clearance, which were the sole ground for their dismissal. The applicant in application no. 43334/18 also invokes Article 13 in this regard.

QUESTIONS TO THE PARTIES

Did the applicants have access to a court with full jurisdiction and were the judicial review proceedings in respect of their dismissals fair, as required by Article 6 § 1 of the Convention, in view of the fact that the Supreme Administrative Court refused to examine the validity of the decisions to withdraw/refuse the applicants’ access to classified information?

Did that refusal of the Supreme Administrative Court put disproportionate restrictions on the applicants’ right to access to court under Article 6 ( Myriana Petrova v. Bulgaria , no. 57148/08, 21 July 2016; Fazliyski v. Bulgaria , no. 40908/05, 16 April 2013; and Aleksandar Sabev v. Bulgaria , no. 43503/08, 19 July 2018)?